Attorney Robert Barnes appeared on Monday’s Breitbart News Daily to talk about President Trump’s allegation that the Obama administration wiretapped him during the 2016 presidential campaign. Barnes’s latest article on the subject for LawNewz is entitled “Yes, There Could Be Serious Legal Problems if Obama Admin Involved in Illegal Surveillance.”
“The allegations that Trump raises are allegations that derive directly from what the newspapers have reported – the Guardian, BBC, Heat Street, the New York Times, the Washington Post, where they all talk about there being an interagency panel of people who were involved in an investigation, who purportedly requested and obtained various means of intercepting phone calls,” Barnes explained.
“So there have been competing stories, and on Sunday, they got even more complicated, as both Clapper and Comey denied any knowledge of any wiretapping presence,” he continued. “Their denials went a little further than Obama’s himself, where all he said was that he himself didn’t personally order something – which was a rather absurd cop-out because the president doesn’t directly order things of that nature. His surrogates or delegates do.”
“The issue goes right to: why, at any time, was anybody’s phone calls being intercepted that were on the Trump team, that are American citizens?” he said. “The various news stories that are out, including one by Andrew McCarthy, who recounts them for the National Review, there’s just no legal grounds for any of that surveillance to be taking place. There’s no legal grounds for any of those calls to be intercepted.”
“The original pretext was that FISA warrants were obtained in October for some limited capacity of Trump surrogates,” Barnes recalled. “The problem is FISA’s a very limited law, especially if you are talking about U.S. citizens. If you’re talking about foreigners, then the breadth of the law is very broad, and the president can, in fact, intercept and surveil foreign activities at a much wider degree because of a limited application of the Fourth Amendment – although the Ninth Circuit doesn’t seem to understand the limits of the Constitution as to foreigners, but that’s another story.”
“The issue he raises is critical and essential, and it’s been ever since these stories started leaking out,” he said of McCarthy’s writing. “Aside from the criminality of the leaks, it was that this is information that never should have been gathered in the first place. What FISA requires is that if you’re going to intercept a call where an American is on the line at any level, then what you have to do is you have to go through certain protocols, and you have to establish basically probable cause that the person is involved in criminal conduct of some sort. Just the fact that I, as a U.S. citizen, am talking to a foreigner does not allow magically the Fourth Amendment to disappear as to my right to privacy.”
“And yet, purportedly, that’s what effectively took place here because here you had Sally Yates discussing a transcript of a call that involved former NSA assistant Michael Flynn, and that’s information that never should have been in her possession or custody,” he observed.
“Just because one of the people on the phone call may have been not a U.S. citizen, that’s no legal grounds to intercept an American’s communications. Another way to think of it is, sometimes you’ll see in the movies where the guy is sitting in a van, and he’s listening in on a phone conversation on a wiretap, and the person he’s listening to shifts to some personal conversation, maybe of an intimate nature, that has nothing to do with the criminal investigation going on. You’ll see him turn off the recording device and put down his headphones,” he explained.
“If it happens that the manner and method of interception was something that you couldn’t physically do that, then what you’re supposed to do is to scrub the information and delete it from the record. In fact, an ex-CIA officer wrote an article for American Conservative documenting that that was always the protocol and procedure, whenever they were involved in an intelligence-gathering investigation. Yet apparently here, according to published reports, what they actually did is they went and they not only kept the information, didn’t scrub it or delete it, they deliberately went back and saved it, and then shared it with a bunch of other people who had no authority to ever look at it,” said Barnes.
“FISA is very particular about this,” he noted. “It requires protection of any innocent American’s information that ever may be gathered through this process. You have to not only scrub it and delete it; you cannot disseminate it to people. You can’t identify the individual that’s being sourced in the investigation. And the failure to follow FISA’s strict procedures is actually a crime. FISA section 1809 of Title 50 makes it a criminal penalty to either gather the information outside of FISA’s procedures or to disseminate it outside of FISA’s procedures.”
“So President Trump is correct that it appears that’s what took place here, based on published reports, headlines in the New York Times that use the words ‘intercepted calls’ involving Trump advisers who are American citizens. It raises very serious issues, and he’s absolutely right to raise them,” Barnes said.
SiriusXM host Alex Marlow noted that President Obama’s denial of Trump’s wiretapping accusation was “thin.”
“It clearly leads to many more questions than it answers,” Marlow said.
“Oh, absolutely,” Barnes agreed. “There’s different parts of it that are problematic. The first thing is that if he was being serious about a denial, you simply issue a two-sentence statement. You say, ‘I am not aware of any wiretapping that took place on Mr. Trump or his campaign, and I would not have supported such a wiretap had it occurred.’ He could have been very broad. It’s interesting that Comey and Clapper were much more specific and particular than Obama was.”
“The second aspect where there were some ludicrous claims included therein, such as the White House never engaging in electronic surveillance of a United States citizen,” he continued. “Well, as Andrew McCarthy and other attorneys have pointed out, and other people familiar with the national security operation have pointed out, Obama drone-bombed American citizens in various foreign locations around the world while he was president, including one in Yemen quite prominently. There’s no way you can actually do that without some form of surveillance on the individuals. It’s not like you had a global map tattooed on the wall, and you took a dart and threw it at the map, and said, ‘Oh, okay, we’ll drone-bomb there.’”
“The fact that he didn’t deny the existence of the wiretap, did not deny his awareness of it, did not deny his approval of it, and then made clearly materially false or misleading statements about his engagement and involvement with surveillance of American citizens – and this coming on top of Clapper committing perjury previously before Congress that led to Ed Snowden becoming Ed Snowden…I mean, Ed Snowden probably never becomes Ed Snowden if Clapper doesn’t commit perjury, and then, Obama’s reaction to Clapper’s perjury was to promote him, rather than to demote him, about spying on American citizens,” said Barnes.
After playing a recording of former Director of National Intelligence James Clapper flatly denying the existence of any FISA court order relating to Trump Tower, Marlow asked, “Do we care what this guy says? He’s a known liar.”
“I think that is problematic about Clapper in particular. He’d be the least likely guy you would want to put up as a credible source for the administration,” Barnes replied. “But what he really also did at the same time was that he gutted the sort of defense that Obama could have had. Because here you have these stories that come out about intercepted calls, and Clapper goes on TV and says there’s actually no legal grounds for any intercepted calls to be taking place, at least not through the FISA authority, which is exactly what was being cited as the reason it was done.”
“Actually, Clapper’s answer raises even more questions. Either (a) Clapper’s lying, which is always possible, or (b) Clapper is being truthful, which means all these intercepted calls were done entirely illegally and off the books, or (c) it was done through the Department of Justice in some entirely different manner that would put Obama right in the middle of it,” he said. “In other words, if it wasn’t done as some sort of national security matter, but was simply done in some sort of disguised investigation that was a politically motivated means of monitoring your adversaries,” Barnes elaborated. “So he ended up opening more Pandora’s Box than he closed it.”
Marlow played an excerpt from an interview given by former Bush administration Attorney General Michael Mukasey, in which he essentially said President Trump’s accusation that President Obama directly ordered surveillance on Trump Tower might be “incorrect” in the details, but Trump was “right” to believe a surveillance operation could have been in progress.
Barnes said Mukasey did “accurately relay what has been reported to the press, which is this request for a FISA warrant in the summer that was rejected because it put Trump’s name in the warrant request.”
“To give you an idea of how rare that is, if that did occur, is that the last 35,000-plus requests for the FISA court to issue a warrant, it’s only been denied 12 prior times, to public knowledge,” he noted.
“According to the published reports, they went back in October and simply left Trump’s name off of it, slightly limited it, and got it,” he said of the FISA request in question. “Now, Clapper’s statement completely denies that ever occurred in terms of October, in terms of ever getting any FISA warrant on anybody connected to, in his own words, the Trump campaign. So there’s a major discrepancy present.”
“Secondly, the one area where he doesn’t quite correctly describe the situation: there is some misleading information out there that the government can just tap the phones of anyone involved who’s working on any level on behalf of a foreign government, by any means. Well, if that had been the case, everybody at the Clinton Foundation should have been tapped permanently,” Barnes said. “Putting that aside, the actual law requires that they not only be, quote, ‘an agent of a foreign power,’ but if they’re a United States person, there has to be evidence that they’re engaged in criminal activities of a particular kind.”
“So they couldn’t just wiretap Michael Flynn, for example, or listen in on his conversations, even if the person on the other line is not a United States person. They have to have evidence that he was engaged in criminal conduct. That is what was problematic, as soon as the Flynn story broke, was there was no grounds for them to have ever recorded him, kept the recording, or shared the recording. FISA law specifically prohibited it under those set of circumstances,” he explained.
“That’s the illegal aspect of what’s going on. It’s not just the political motivation that would be impermissible or inappropriate because it would be First Amendment punitive use, misuse of the search warrant authority. But it actually violates what warrant authority they could ever obtain in the first place, under both the First and Fourth Amendments, and under the FISA law itself,” he said.
Barnes said the reported request from FBI Director James Comey for the Justice Department to refute Trump’s wiretapping accusation was “an interesting set of statements.”
“There were three different interpretations of Comey and Clapper combined coming out and saying that,” he suggested. “One interpretation was that they were not being fully forthcoming and that it was a message to their underlings that they were not going to be the ones to take the fall if any such activity took place, and that those underlings could take Hillary-style actions in terms of whatever evidence may remain of that.”
“One little-noted story last week was that Trump put out a requirement that everybody connected to the story keep all information,” he noted. “He did this before he did his tweets, but his motivation may have been to actually prove and document this illicit activity took place.”
“The second interpretation of what Clapper and Comey did is that they were both kept in the dark – that you had a sort of a rogue operation of people, including Sally Yates at the Department of Justice, who circumvented both Comey and Clapper in order to engage in this sort of illicit personal surveillance,” he continued.
“I’ve been on the opposite side of Sally Yates in cases where she was at the U.S. Attorney’s Office in Atlanta,” Barnes revealed. “If you were going to pick an unethical, corrupt prosecutor, she’d be at the top of the list. She tried to help railroad a family there, in a case I dealt with over ten years.”
“The third possibility is that this was just unlawful surveillance,” he concluded. “I’ve had a lot of cases like that, especially under the Obama administration. It became too frequent and too regular that you had agents that were just doing illegal surveillance, without ever notifying their supervisors, without ever obtaining judicial authority, without ever doing it legally at all. And so you may have had an operation that was a true Deep State kind of operation, that was just doing unlawful surveillance.”
“There’s too much information, like some of the criticism of President Trump. Well, people should be critical then of the New York Times because it was their story that said there was intercepted calls of multiple members of Donald Trump’s campaign. That was, I think, the story that ran on Valentine’s Day, actually. It was in the very first sentence of the story. So either the New York Times was purely fake news or somebody in the government is lying about what they were up to,” Barnes summarized.
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