DOJ IG to Investigate FISA Abuses by Obama Justice Department

Yesterday, the Department of Justice (DOJ) announced it would launch an internal investigation into possible Foreign Intelligence Surveillance Act (FISA) abuses by the DOJ under the Obama Administration during the 2016 election. Inspector General Michael Horowitz, an Obama appointee, will lead the investigation within the DOJ.

The scope of the investigation purportedly includes how the DOJ may have mishandled FISA warrant applications; included in this, Carter Page and failure of DOJ to fully disclose the origins and inherent biases of the so-called Steele Dossier to the ex parte Foreign Intelligence Surveillance Court (FISC), as was detailed in House Intelligence Chairman Devin Nunes' memo released early last month.

In a reply letter to Senate Judiciary Chairman Chuck Grassley and Senator Lindsey Graham, dated yesterday, Inspector General Horowitz laid out the general scope of his investigation:

[The Office of the Inspector General (OIG)] is initiating a review that will examine the Department’s and the FBI’s compliance with legal requirements, and with applicable DOJ and FBI policies and procedures, in applications filed with the FISC related to this U.S. person. As part of this examination, the OIG also will review information that was known to the Department and the FBI at the time the applications were filed from or about an alleged FBI confidential source. Additionally. The OIG will review the Department’s and FBI’s relationship and communications with the alleged source as they relate to the FISA applications. If circumstances warrant, the OIG will consider including other issues that may arise during the course of the review. 

Chairman Grassley issued the following statement after learning of the OIG’s new investigation:

Federal surveillance authority is an important tool to combat terrorism and keep Americans safe, but it must be used by the book in order to protect the constitutional rights and civil liberties of all Americans. We need to be sure that improper political influence, misconduct or mismanagement is never a factor when federal law enforcement seeks permission to secretly surveil Americans. I’m grateful that the non-partisan inspector general is reviewing both the controversial FISA application and the FBI’s relationship with Christopher Steele, whose Clinton-funded work was used in the FISA application. The inspector general has a sterling reputation for getting the facts and holding any bad actors accountable.

Senator Graham added:

I am very pleased the Inspector General has decided to act on our request to investigate these issues further. . . The American people are rightfully troubled by the information they have heard about politicization in DOJ. All Americans deserve to know if the rules were followed and whether justice was indeed blind.

This is an important first step toward understanding the degree and depth of political biases by career employees at the DOJ and the important efforts to correct this troubling problem. We will keep you posted on further developments on this very important story.

Concerns with Klobuchar-Graham Election Security Amendment

Democratic Senator Amy Klobuchar of Minnesota and Republican Senator Lindsey Graham of South Carolina have co-sponsored an amendment to the National Defense Authorization Act providing for federal funding for state election security measures.  While the security community has embraced this amendment, and we thank Sen. Graham for taking the problem of election security seriously in a way that attempts to respect state power, we have some concerns about this measure:

• It is a serious amendment of the Help America Vote Act (HAVA) that should be approached carefully, and the process should include hearing where various stakeholders testify.
• It places enormous new responsibilities on the Election Assistance Commission (EAC), an agency which has struggled to fulfill its existing mandate and operate its existing advisory boards, which faces a budget crisis, and which may not have the authority to accomplish what the amendment requires.
• The EAC already accomplishes many of the functions in this amendment, but the amendment adds more bureaucracy and spends more money to do it.  It is an enormous aggregation of federal power.
• It formalizes the role of the Department of Homeland Security and the Executive Branch to set standards, which the states are required to meet to receive federal funding.  Currently, the EAC is the only federal standard-setting standard entity for elections, and it is an independent agency.
• An existing voluntary program to certify voter registration systems appeared to be working well, aside from DHS withholding important security information from the states last fall.  States are agreeing to this new measure because they are already doing these things on a voluntary basis and need the funding, but a voluntary program and a mandatory (at least, from the perspective of funding) program are vastly different in terms of who is controlling the election security standards and systems.
• It excludes states that use direct recording electronic (DRE) voting machines.  While there have been some serious problems with DRE machines (and Virginia decertified all DREs in the state last week), DREs are the only machines many localities have and they make voting easier for voters with disabilities.
• It would allow states to implement mandatory voter registration and other progressive reforms with federal funds.

This amendment needs some serious study and input from election administration experts--not just computer, national security, and cybersecurity experts--before it moves forward in the Senate.

Among other burdens placed on the EAC, the amendment requires it and a commission to conduct an investigation of the foreign interference in the 2016 election and the potential for interference in future elections.  An existing commission, the Presidential Advisory Commission on Election Integrity, is already investigating election security and voting machines as part of its mission to study the U.S. election system and what promotes or decreases voter confidence in the system.  The next meeting of the commission is tomorrow, from 10:00 AM to 4:00 PM Eastern.  RNLA will be live-tweeting the meeting.

Senate Tradition Requires a Majority Vote for SCOTUS

In the face of a promised filibuster by the Democrats of Judge Gorsuch's nomination to the Supreme Court, Republican senators have spoken out strongly against the use of the filibuster on Supreme Court nominees and have indicated their support if Leader McConnell is forced to exercise the constitutional option or "Reid Rule" on the Gorsuch nomination.

Senator Lamar Alexander noted earlier today that he has consistently voted for cloture on presidential nominees even when he voted against confirming them:

[W]hat the Democrats are proposing to do next week, quite apart from the fact that Judge Gorsuch is one of the most eminently qualified people we have seen come around in a long time, they're flying in the face of 230 years of tradition in the Senate by insisting that a presidential nominee to the Supreme Court require more than 51 votes to be confirmed. Now, I look very quickly back at my own votes. None of us are perfect, and I'm not asking for any merit badges, but I wonder where the Democrats are who are trying to do at least what I was trying to do when President Obama was there. And I found at least ten times where I voted for cloture, voted to cut off debate for controversial nominees with whom I disagreed with, and then I voted against them when the vote was 51. . . . [W]here are the Democrats looking to vote like that, to preserve the Senate's 230-year tradition of approving presidential nominees by a majority vote? I think this is a terrible precedent, not justified, and I'm sorry to see things heading in this direction. 

Senator Alexander gave extended remarks on the history and use of the filibuster in the Senate yesterday:

Throughout the Senate's history, approval of even the most controversial presidential nominations have required only a majority vote. . . . In fact, Senate rules have always allowed senators the option to filibuster to death a presidential nomination, yet it has almost never happened. . . . Filibustering a presidential nomination has always been treated differently than filibustering a legislative matter. . . . No one has ever disputed our right in the Senate, regardless of who was in charge, to use our constitutional duty of advice and consent to delay and examine, sometimes cause nominations to be withdrawn or even to defeat nominees by a majority vote. 

But as we approach a vote next week on Neil Gorsuch on the floor of the Senate, it is useful to remember that the tradition of the United States Senate has been to treat legislative matters one way and presidential nominations a different way. Filibustered to death legislation, yes. Filibustered to death presidential nominations, no. Should the Neil Gorsuch nomination come to the floor soon, as i believe it will, overwhelming Senate tradition requires that whether to approve it should be decided by a majority vote and there should be no attempt by the minority to filibuster the nomination, especially of such a qualified man, to death. 

Such long-serving, institutionalist senators as Senator Hatch, Senator Shelby, and Senator Graham have also supported confirming Judge Gorsuch even if faced with a Democrat filibuster, while they lament what the Democrats' forcing the Republicans to exercise the constitutional option means for the future of the Senate.

RNLA thanks these senators and the other Republican senators willing to uphold 230 years of Senate tradition by supporting an up-or-down vote for Judge Gorsuch.

Senator Graham Exposes the Ridiculousness of the Partisan Motives of Senate Democrats

Right now, Senate Democrats are engaging in an overnight marathon Senate session to disparage Senator Jeff Sessions before his confirmation vote as Attorney General. Senator Lindsey Graham spoke on the Senate floor in support of Jeff Sessions for Attorney General earlier today. Senator Graham completely destroyed the "more substantive" arguments of the Democrats against Senator Sessions.

A few highlights: first, Senator Graham fought against the charge that Senator Sessions is biased because he is too close to President Trump, whom Senator Sessions endorsed:   

I would expect that the attorney general nominee know the president well before they're chosen.  This idea that Senator Sessions was close to President Trump during the campaign is somehow a disqualifier makes absolutely zero sense to me.  The bottom line is that's exactly the kind of people you would expect the president to pick, someone who has been on their team, someone they know, someone they believe in to carry out the duties of the offices that they're nominated for.  

And he delivered a stinging rebuke: 

So I don't have the time to go through history, but i would assume that in past nominations, particularly for attorney general, there's been some kind of relationship between the president who nominated and the person who's seeking the job. So if that's going to be the new standard: I would suggest that nobody in this body ever endorse anybody for president because apparently you can't serve in the cabinet.  That would be kind of silly.  

By this standard, President Obama would never have had a Secretary of State, as both Hillary Clinton and John Kerry would have been disqualified. 

Next, he addresses the charge of racism against Senator Sessions.  He exposes the charge for what it truly is: partisan politics. 

I think it would be unfair to say that Senator Jeff Sessions is not qualified for the job at hand.  Most of the attacks against Senator Sessions could be levied against almost everybody on this side of the aisle.  Here's what I want the body to know: that in the report card of the 113th Congress, the first half, here are the [NAACP] ratings [that were used to help label Sessions racist]: Senator Grassley -- all Republicans here -- 11%, Hatch, 25%, Graham 25%, Cornyn 11%, Lee 11, Cruz 11%, Sasse -- he wasn't in the Congress; Flake 29%, Crapo 14%, Tillis and Kennedy were not rated yet. On the Democratic side of the Judiciary Committee: Feinstein 100%, Leahy is 100%, Whitehouse 100%, Klobuchar 100%, Franken 100%, Coons 96%, Blumenthal 100%, and Hirono 100%.  Not only did Jeff Sessions have a poor rating, all of us did. So to my friends on the other side, you're making arguments that I don't think are good for the future of this body and the country as a whole. Because almost everything said about Jeff could be said about me and most of my colleagues over here. 

Should the American Conservative Union’s (ACU) ratings have been used for Democratic Presidential nominees just as Democrats are using the NAACP for Republicans for cabinet positions?  Then-Senator Clinton received an 8% rating and then-Senator Kerry received a 4% rating from ACU in the years before they were confirmed for cabinet positions. 

Yet Republicans regularly voted for such low-rated nominees.  However, it goes beyond ratings and charges; it goes to philosophies of the winning candidate.  As Senator Graham pointed out: 

It goes on.  Why did I vote for [former Obama Attorney General Eric] Holder? Why did I vote for [former Obama Attorney General Loretta] Lynch? Why did I vote for [Supreme Court Justices] Sotomayor and Kagan and the list goes on and on and on? I expect that when a liberal president wins, that they will pick people who are qualified, who share their view to represent their administration. When it comes to the attorney general, you can be liberal and you can be conservative, but you still also can be fair to the public as a whole. I don't believe for one second that Jeff Sessions as Attorney General of the United States will take any of his political positions and jam them down your throat if the law says no.  I have never seen that about the man. And the minority leader of the Alabama Senate, Senator Ross, African-American Democratic Minority Leader said, “I have worked with Jeff Sessions, I know him personally, and all of my encounters with him have been for the greater good of Alabama. We've spoken about everything, from civil rights to race relations. We agree that as Christian men our hearts and minds are focused on doing right by all people.” 

That is the Jeff Sessions that I know.   That is why I lend my support to his nomination.

Thank you, Senator Graham.