When even CNN reports that the economy is booming and the President’s popularity soaring, what can a Democratic House stuck with loser candidates do? Peddle a phony impeachment. And when the President says, bring it on, I want the same rights you give a felon for a fair trial (in this case, the Senate), what do you do? Refuse to name managers for the trial and fail to move the matter over to the Senate, which according to the Constitution is the body vested with the obligation to decide the matter.

Of course, so many of their low-information base thinks that the House vote to impeach means the President is out of office. So they’ll be surprised to learn that this week the very people who “impeached him” agreed to his signature USMCA which scraps NAFTA, an act signed by Bill Clinton.  

They’ll be even more surprised to learn that on February 5 he will be in Pelosi’s House at her invitation to deliver the State of the Union Address. That address usually (but not last year) has been a boring drone no one watched. This year it surely will be a blockbuster, unlike the Democratic debates no one watches. Why should they? Those candidates promise to put hundreds of thousands of workers onto the unemployment rolls, raise taxes and health costs, flood the country with unemployable and unassimilable wretched refuse from around the world, support unrestricted abortion and such. These are not issues with broad voter appeal.

While self-described Constitutional scholars debate the next step -- will McConnell simply throw this out for failing to state a justiciable complaint; will there be a trial; how long must we wait for the House to act on the partisan vote taken after its outrageously one-sided “hearings”? -- Scott Adams (Dilbert’s creator) pithily summed up my take.

To be fair, Pelosi sitting on the impeachment is halfway to where that impeachment needs to go.

Over at the Spectator, Rabbi Dov Fischer argues that Pelosi is “terrified to hand it over.”

As Chuck Schumer’s hapless demands for even more witnesses evince, Pelosi and Schiff did such a feeble job that she has no case to present. She is humiliated, like a Marcia Clark who gets the courtroom spotlight for a year and leaves behind a legacy that she could not convict an obvious murderer even with so much evidence that, in order to make room to store all of it, they had to ask the guy to wear some of it. For Madam Speaker, like a dowager whose time has come to hand over the estate keys to her progeny, including to the hated and unworthy daughter-in-law who married her impeccable son, Pelosi’s moment is done, and she has to decide whether to (a) hand it over or (b1) Abuse her Power and (b2) Obstruct Congress by remaining petulantly puerile. Heading the Resistance, she resists history’s verdict as she now sets the table for President Trump to emerge, unexpectedly and unintentionally, with a remarkable new claim to Mount Rushmore: the first president in American history so deeply loved by the American people that they reelected him to be their president only months after he was impeached. Wow -- the Democrats and their Corrupt Journalist Corps never saw that one coming.

So the cipher trembles to pass along the indecipherable charges, aware that her ambitious production netted her the sum of aught and naught: three years to produce, a moment to dismiss. One is reminded of the epic scene in Raiders of the Lost Ark, where an overbearing evildoer with contemptuous laughter in his voice and insatiable bloodlust in his eye, accoutered like Pelosi in Impeachment Black, ferociously demonstrates publicly before a crowded audience on a parched dusty street somewhere in Arabia, dramatically twirling and flipping his ostensibly deathly huge saber to intimidate and terrify Harrison Ford’s Indiana Jones, on the cusp of slicing him to pieces. Indie sees the overwhelming display of imposing doom, but -- bored and sweating -- just pulls out his pistol, eliminates the character instantaneously, and turns to the next order of business. Pelosi is that thug. Her two “Articles of Impeachment” are that saber. The Senate is that bullet -- and thus will pass the haters with the lost bark.

Even as impeachment dies aborning, other matters of greater significance require resolution.

Upcoming Criminal Prosecutions

We are waiting for justice for those who hatched and promoted through leaks the nonsensical RussiaGate charges against the President. Over at Powerline blog, Paul Mirengoff reviews the publicly known information and asks if John Brennan (and others) will be indicted.

He argues that Kevin Clinesmith (former FBI lawyer) will be indicted for materially altering documents. Andrew McCabe (former deputy director of the FBI) might be, too, for lying to prosecutors about his authorization to leak the FBI’s investigation to the Clinton Foundation. John Brennan may be for privately contradicting his public statements, including his testimony to Congress under oath  in May 2017. He may also be charged with perjury in written testimony “to the House Intelligence Committee when he claimed that he had briefed each member of the so-called Gang of Eight about ‘Russian attempts to interfere in the election’ between August 11, 2016 and September 6, 2016”. Mirengoff isn’t “convinced that Brennan will be indicted,” but while I am not sure, I think the facts I see of the case warrant it. 

Archer 52, who commented on the article, says if any of these people are indicted their defenses will be easy to predict:

We did it because we were saving the country. 2. We did it because we are professionals and had no choice. 3. There were some mistakes made but they were minor and did not impact the operation. 4. The people around me lied, but I had no idea, because I am really bad at my job. And finally, 5. I make a far better witness than an inmate, so PLEEEAASEE do not throw me in jail.

Whatever happens, white-collar criminal defense counsel in Washington will clean up. And Archer has already summed up their work for them.

Fisking the FISA Court

A little over a week ago, the U.S. Foreign Intelligence Surveillance Court slammed FBI misconduct in its four applications for warrants against Trump campaign official Carter Page.  

(As you may know, one FISA warrant on one person can lead to spying on thousands of people, not just those the subject of the warrant had contact with. This allowed massive spying on the Trump campaign.)

The order was a response to the IG Horowitz report, which documented the agency’s complete failure to include exculpatory evidence in these applications.

The order 

…responds to reports that personnel of the Federal Bureau of Investigation (FBI) provided false information to the National Security Division (NSD) of the Department of Justice, and withheld material information from NSD which was detrimental to the FBI’s case, in connection with four applications to the Foreign Intelligence Surveillance Court (FISC) for authority to conduct electronic surveillance of a U.S. citizen named Carter W. Page.

The frequency with which representations FBI personnel made to the court turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case,” Judge Collyer continued, “calls into question whether information contained in other FBI applications is reliable.

The document orders the government to, by Jan. 10, “Inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.

If the FBI is unable to comply, the court concludes, the FBI must explain why the order has not been implemented, what steps it is taking to meet the order, the timetable to meet the order, and ‘why… the information in FBI applications submitted in the interim should be regarded as reliable.

Many question why the FISC waited so long to respond, after all, Congressman Devin Nunes reported this to the court over a year ago. 

Others wonder what the heck FBI Director Christopher Wray is doing and what, if anything, this damning order will do to get him off his backside.

There are no hearings before FISC. We’re told this is not an impediment to a fair resolution of warrant applications.

David Kris, a former assistant attorney general for national security, shared a 2013 correspondence between FISC and then-judiciary chairman Patrick Leahy (D-Vt.), which he said shows that formal hearings are not typical.

Draft applications are submitted a week in advance, and after review by 'the Court’s legal staff' the judge makes a preliminary determination 'to approve… to impose conditions... [to decide] that additional information is needed... or... that a hearing would be appropriate,'" he said while sharing some excerpts on Twitter.

[M]any applications are altered... or... withheld from final submission... often after an indication that a judge would not approve'; the 'approval rate' for criminal wiretap applications 'is higher' than for FISA; & a sample showed 'substantive changes' made in 24.4% of cases," he continued. "'The frequency of hearings varies' with 'the nature and complexity' of a case & the judge, but the Court gets information 'from the government… through telephone conversations [&] meetings' as well as 'hearings,' & 'typically' the interaction is via 'informal communications.

These legal experts were backed by Andrew McCarthy, senior fellow at National Review and former assistant U.S. attorney for the Southern District of New York, argued that if a warrant application is not backed by probable cause, then a judge should simply reject it. 

The argument should be that DOJ & FISA judges have higher duty to follow rules and scrutinize applications because, unlike criminal proceeding where there’s eventual discovery and hearings, that’s all the due process warrant target will ever get. 

In fact, the handling of these most important warrant applications on Page revealed the FISC is simply a rubber stamp for the Department of Justice. And it was so even with respect to the intelligence community’s unprecedented, unwarranted spying on Trump before and after his election.

I was curious,  in any event, to refresh my recollection of why we were told the FISC was a necessary creation and how we could be assured our civil liberties would be protected, even though this sidesteps Fourth Amendment protections that even murderers are entitled to before searches are conducted. I reviewed the hearing transcript of Andrew McCarthy before the Senate Judiciary Committee on May 10, 2005 and see a vast disparity between what were told and what has evolved.

Here are some relevant remarks before that committee:

The government officials whose conduct, actual and potential, is at the heart of our inquiry here are not anything near Big brother. They are not even slightly interested, as a general matter, in what Americans are reading or what websites they are accessing. They are not desirous of poring over personal healthcare or financial information unrelated to some good-faith investigative imperative. In point of fact, in this information age, they are awash in data and severely challenged to sort the wheat from the chaff -- which is to say they don’t have enough time to read and process the things we actually want them to read and process. It would be counterfactual and perilous to legislate based on the assumption that honorable people will behave badly. It is also unbecoming.

Arguing for a presumption of regularity that courts use in judging congressional acts, he concluded: “But it is a salient aspect of the dignity that impels our society to respect its institutions -- the very respect which undergirds the rule of law -- that we operate from a premise that our officials are neither reckless nor roguish, and that they act responsibly.”

The government officials in RussiaGate, however, were not honorable, did behave badly, and are not entitled to any presumption of regularity. In sum, they were precisely “reckless and roguish.” They have undermined respect for law, and the tardy and weak judicial (FISC) response appears to have condoned that. Maybe a safer approach is to view any legal backdoor as a license for government intrusion. I’m old enough to remember when conduct like this would have had the ACLU screaming for change instead of its present focus -- like demanding tampons in men’s bathrooms to achieve “menstrual equity.”