by Andrew C McCarthy • National Review
On Tuesday, in a National Review Online column, I contended that the reported involvement of former national-security adviser Susan Rice in the unmasking of Trump officials appears to be a major scandal — it suggests that the Obama White House, of which she was a high-ranking staffer, abused the power to collect intelligence on foreign targets, by using it to spy on the opposition party and its presidential candidate.
It should come as no surprise that the defense Ms. Rice and Obama apologists are mounting is heavily reliant on a fact that is not in dispute: viz., that the intelligence collection at issue was legal.
I anticipated that line of argument a week ago. The issue is not technical legality, it is monumental abuse of power.
To analogize, if a judge imposed a 20-year jail term on a man for passing a marijuana cigarette to a second man, the sentence would be perfectly legal — a distribution of a Schedule I narcotic drug controlled substance calls for a sentence of up to 20 years’ imprisonment, see 21 U.S.C. §841(b)(1)(C). Nevertheless, the sentence would also be an outrageous abuse of judicial power. A judge who did such a thing would be unfit — worthy of condemnation, if not impeachment.
Abuses of power are offenses against the public trust. They often overlap with a criminal offense, but they are not the same thing as a criminal offense. For example, a politician who accepts money in exchange for political favors commits both the crime of bribery and an impeachable offense of corruption. The jurors in the bribery case need not find that the politician breached his public trust; they need only find an intentional quid pro quo — payoff in exchange for favor. By contrast, the breach of public trust is central to the impeachment case: To remove the pol from office, there would be no need to prove the legal elements of a criminal bribery charge beyond a reasonable doubt, but it would have to be demonstrated that the politician is unfit for office. If it is a petty bribe, a prosecutor might ignore it, but the public should want to throw the bum out.
This is why a “high crime and misdemeanor” — the constitutional standard for impeachment — need not be an indictable criminal offense. It may be a chargeable crime, but it need not be one.
A famous example (though one not much remarked on during the last several years) is the second article of impeachment against President Richard M. Nixon. It alleged (my italics):
Using the powers of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purpose[s] of these agencies.
The impeachment allegation went on to describe how Nixon had, among other things, directed the FBI, CIA, and IRS to investigate innocent Americans for reasons unrelated to national security or law enforcement. For the most part, these directives were not violations of penal statutes. But they were, individually and collectively, heinous abuses of presidential power warranting impeachment.
If the new reporting is to be believed, Rice orchestrated the unmasking of communications involving the Democrats’ political rivals — the Trump campaign. Her current stress on the lawfulness of the intelligence collection is a straw man. No credible commentator is claiming (based on what we currently know) that the intelligence-collection activities of the FBI, CIA, and NSA were illegal. As I explained yesterday in my aforementioned column, the surveillance and collection operations were undertaken pursuant to statute (the Foreign Intelligence Surveillance Act) as well as to the president’s constitutional authority to collect foreign intelligence (the exercise of which authority is laid out in a longstanding executive order, EO 12,333).
The allegation against Rice and the Obama administration is that the unmasking of Trump-campaign and transition officials appears — cumulatively, and probably in many specific instances of it — to have run afoul of minimization instructions. These instructions are proposed by the Justice Department and ordered by the FISA court.
To discuss non-compliance with minimization instructions in the context of crime is a fool’s errand. Violating minimization instructions applicable to electronic surveillance is not a crime. Nothing unusual about that. Not every offense against laws, court orders, regulations, guidelines, etc., is a crime. Most law violations, in fact, are not crimes.
Moreover, the standard articulated in the minimization instructions is too vague to predicate criminal liability. It requires the masking (or concealment) of the identity of any American incidentally intercepted unless the intelligence value of an intercepted communication cannot be understood without knowing the American’s identity. Within reasonable parameters, that is a subjective judgment call. The criminal law is not for judgment calls. Its provisions must be precise, putting people on clear notice of exactly what is proscribed. Reasonable minds can differ on how much identifying information about an incidentally intercepted American is necessary before the intelligence value of a lawfully intercepted communication can be fully understood. That’s not the stuff of crime.
But the technical legality of any particular instance of unmasking is beside the point. The question is abuse of power.
Here, it is critical to bear in mind something that can easily be forgotten. The sole purpose of foreign intelligence collection is to understand the actions and intentions of foreign powers and their operatives. If the government’s purpose is to understand the actions and intentions of American citizens, there are two proper ways to go about that: (a) conduct a criminal investigation in which the American citizens can be targeted for court-authorized surveillance based on probable cause of a crime, or (b) conduct a FISA investigation in which the American citizens can be targeted for court-authorized surveillance based on probable cause that they are acting as agents of a foreign power.
If neither of those two alternatives is chosen, then the American citizens are not supposed to be the subject of the intelligence collection effort — they are supposed to be protected. The snooping to which they are subjected is an incidental byproduct (i.e., an unintentional albeit inevitable consequence) of snooping on foreign powers. The incidental snooping deprives them of privacy protections rooted in law — the requirement that the government obtain a judicial warrant before seizing and eavesdropping on their communications. The law allows this to happen, but only if post hoc safeguards are applied.
That is why, as Director James Comey testified before Congress, the FBI is “obsessive” about concealing the identities of Americans. That is why unmasking is a big deal.
When an American is intercepted, the collecting agencies (FBI, CIA, and NSA) don’t shrug their shoulders and say, “Well, we could provide a marginally better understanding of the meaning of this communication if we revealed the name of the American.” Their practice is more along the lines of: “We don’t reveal the names unless it is absolutely necessary to understanding the communication, and even then, we prefer to use some substitute (e.g. ‘American Diplomat No. 1’) rather than the actual name.” The agencies take this position not because they are good, honorable people (though most of them are). They take it because it is in the interest of successfully carrying out their national-security mission. They know that if they fail to protect the identities and privacy of Americans, and the inevitable scandal arises, an irate public will demand that Congress curtail their spying powers.
On the other hand, anyone can make a mistake. A failure to unmask an American’s identity when knowing it would be essential to an understanding of some crucial bit of foreign intelligence could have disastrous consequences. That is why consumers of intelligence sometimes – very rarely, but sometimes — ask the collectors to unmask. Even though the collecting officials know more about their investigations than do consumers (e.g., White House staffers on the National Security Council) of their intelligence reports, it is always possible that the consumers could notice something the collectors missed. Or they could think of an intelligence angle that didn’t occur to the collectors.
So with all this gray area, how do we know whether unmasking is a massive abuse of power or a perfectly appropriate exercise of discretion? We apply common sense.
Was the questionable unmasking a single, isolated instance, or was it part of a pattern?
Did the communications in question have real foreign intelligence value, or were they just blather in which Americans participated or were mentioned — such that it might appear that unmasking the Americans was the objective of the collection effort, not something that was “incidental”?
Was there a series of unmaskings of a particular American or group of Americans? After all, it would not seem very “incidental” to collect and unmask the very same people again and again — that would look more like targeting.
Were standards applied consistently: Was the same unmasking protocol applied to all Americans with equal rigor, or does it appear that some Americans — like maybe . . . Americans connected to Trump — were given less protection than others?
While the unmasking was going on, was an unprecedented presidential decision made to disseminate intelligence information very widely across the “community” of 17 intelligence agencies, including to officials with no obvious need to know?
And while that was going on, were administration officials (including some former ones, like Evelyn Farkas, who left the administration to join the Clinton campaign), pressuring Congress to seek as much disclosure from intelligence community as possible regarding Trump?
Whether we are dealing with a major abuse-of-power scandal or not depends on the answers to those questions. Contrary to Susan Rice’s latest version of events, it has little or nothing to do with whether laws were broken.