Regular readers of the Nacht blog will note that I enjoy stories that prove principles but feature a cast of characters that differs from the typical. From the beginning I found it disturbing that the FBI spied on the Trump Presidential campaign. Yet many people ordinarily afraid of government overreach and privacy rights assumed the legitimacy of the investigation. The appropriateness of the secret investigation fed into a narrative that Democrats believed wholeheartedly, that candidate and then President Trump was in cahoots with the Russians.
When the Horowitz Report, the IG (Inspector General) report from the FBI was first revealed, the headlines were that the FBI was cleared from an improper political agenda in the investigation. However, after Horowitz testified, it became apparent that the report was a scathing critique of the the misuse of the FISA warrant process.
I am hopeful that this scandal will yield a bipartisan consensus to end the role of secret courts. Our regular court process allows for secret investigations. That is what grand juries do in every federal criminal case.
The real problem with a special court for intelligence purposes is that the judges on the FISA court will naturally feel like part of the investigatory team. They know their role in approving search warrants will never be made public. And they get to play at being a spy. That is why they literally grant almost every request for a warrant.
Federal judges not sitting on the FISA court review and grant search warrants in secret, but they know that their decisions will ultimately become public and subject to review. Indeed, unlawful warrants yield evidence that can be suppressed, or guilty convictions can be overturned. That knowledge gives judges a bit of pause. They ask questions. They sometimes require agents to gather additional evidence from less intrusive means prior to approving a search.
The constitution requires that search warrants be issued by a neural magistrate upon probable cause for a very good reason. Governments and their leaders frequently want to investigate political opponents. Had President Trump’s FBI investigated the Biden or Warren campaign with a warrant from a secret court, coverage on MSNBC would have been outraged.
Our News sources should not favor an action because the viewers or readers of that channel want to believe in the action. Yet this story has been mishandled and misunderstood by many for years.
These points have been well laid out in the linked article. I commend it to you.
Author: David A. Nacht of NachtLaw, P.C.
Read the full article, “The Inspector General’s Report on 2016 FBI Spying Reveals a Scandal of Historic Magnitude: Not Only for the FBI but Also the U.S. Media”, by Glenn Greenwald of The Intercept dated December 12, 2019.