The House Intelligence Committee’s “Foreign Intelligence Surveillance Act Abuses (FISA)” outlines explicit prima facie criminal behavior that starts with former FBI Director James Comey, and seems to end with President Obama. It may be the greatest subversion of the US Constitution ever, one that will expose the United States to necessary additional independent prosecution to unravel and uncover a far-reaching Obama Administration criminal enterprise.
To be specific, for starters, FBI Director and AG Loretta Lynch, and President Obama may even have engaged in a conspiracy connected to “18 U.S.C. Section 1001 Statements or entries generally,” and “18 U.S.C. Section 1623 – False declarations before grand jury or court.” Both of these federal criminal statutes are felonies.Let’s break down the factual components we know about as of today:
1. The FISA Statute 50 U.S.C. Sec. 1804 and the House Intel Memo seem to directly implicate Comey, AG Lynch and President Obama
To understand the likely criminality of James Comey, Attorney General Loretta Lynch and President Obama, one has to start with the FISA statute under FBI Director applied to the FISA court for the right to eavesdrop on Carter Page.
Under 50 USC Section 1804, the statute states:
“(a)Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include—
(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the specific target of the electronic surveillance;
(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
The House Intel Memo states:
“On October 21, 2016, DOJ and FBI sought and received a FISA probable cause order (up; under Title VII) authorizing electronic surveillance on Carter Page from the FISC. Page is a US citizen who served as a volunteer advisor to the Trump presidential campaign. Consistent with requirements under FISA, the application had to be first certified by the Director or Deputy Director of the FBI. It then required the approval of the Attorney General, Deputy Attorney General (DAG), or the Senate confirmed Assistant Attorney General for the National Security Division. The FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISA renewals from the FISC. As required by statute (50 U.S.C. 1805 (d)(1)) a FISA order on an American citizen must be renewed by the FISC every 90 days and each renewal requires a separate finding of probable cause. Then-Director James Comey signed three FISA applications. in question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or more FISA applications on behalf of DOJ.”
Thus, from this statute and the very beginning of the House Intel FISA Memo, we can take away 3 important derivative facts concerning the Comey application to the FISA court in October 2016:
i.) The Comey October 2016 FISA application was made “in writing under oath or affirmation” that the specific and overall FISA application was true and correct; Loretta Lynch, the then-United States “Attorney General,” most assuredly had to approve of Comey’s FISA application, and/or intimately know of its existence and substance because the FISA statute states that “Each application shall require the approval of the Attorney General” who was Loretta Lynch at the time.
If AG Loretta Lynch knew and/or “approved” a FISA warrant to investigate a member of a Presidential campaign for possible Russian infiltration, it is inconceivable that she didn’t immediately and fully inform President Obama of the outstanding application for the FISA warrant, and the “factual basis” for the FISA warrant.
2) Comey seems to have omitted to Inform the FISA Court of the Material Fact that the Steele Dossier was a Clinton Campaign Paid-For Document
The House FISA Memo states:
“1) The “dossier” compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application. Steele was a longtime FBI source who was paid over $160,000 by the DNC and Clinton campaign, via the law firm Perkins Coie and research firm Fusion GPS, to obtain derogatory information on Donald Trump’s ties to Russia.
a) Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials.
b) The initial FISA application notes Steele was working for a named U.S. person, but does not name Fusion GPS and principal Glenn Simpson, who was paid by a U.S. law firm (Perkins Coie) representing the DNC (even though it was known by DOJ at the time that political actors were involved with the Steele dossier). The application does not mention Steele was ultimately working on behalf of—and paid by—the DNC and Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information.”
There is no question that the Clinton Campaign provenance of the Steele “dossier” was a critically material fact that Comey should have and needed to have included in his recitation of the facts made under oath to the FISA court. Comey’s omission of such a material fact is a criminal violation of 18 U.S.C. sec. 1001, and 18 U.S.C. Sec. 1623.
3) 18 USC sec. 1001 makes “concealing, or covering up” a “material fact” a federal crime
In specific, 18 U.S.C. sec. 1001 states:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years . . ..”
Now, there are so many ways that Comey’s use of the Steele “dossier” may have violated this section it’s actually sad. However, for this article, the key point is Comey’s omission and failure to inform the FISA court that the Clinton Campaign paid for the Steele dossier, clearly“concealed”or “covered up” a “material fact.” So, there is clear prima facie evidence of a possible criminal offense for Comey under Section 1001 requiring an independent prosecutor to fully probe his, and the entire Obama’s administration’s actions including President Obama.
On the question of intentional criminal “omission” of a “material fact” as violating 18 U.S.C. 1001, an excellent, Congressional Research Service article by Charles Doyle, outlines the requirement the “existence of a legal duty not to conceal” the “material fact” must exist for criminal “omission” to attach.
The Doyle CRS article states:
“Prosecutions under subsection 1001(a)(1) for concealment, rather than false statement or false documentation, must also prove the existence of duty or legal obligation not to conceal. Footnote 86.
Footnote 86: United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008)(“As Safavian argues and as the government agrees, there must be a legal duty in order for there to be a concealment offense in violation of §1001(a)(1)”); United States v. Stewart, 433 F.3d 273, 318-19 (2d Cir. 2006)(“Defendant’s legal duty [as a broker] to be truthful under Section 1001 included a duty to disclose the information regarding the circumstances of Stewart’s December 27th trade.... Trial testimony indicated that the SEC had specifically inquired about [his] knowledge of Stewart’s trades. As a result, it was plausible for the jury to conclude that the SEC’s questioning and triggered [his] duty to disclose and that ample evidence existed that his concealment was material to the investigation ”); United States v. Moore, 446 F.3d 671, 678- 79 (7th Cir. 2006)(regulatory obligation); United States v. Gibson, 409 F.3d 325, 333 (6th Cir. 2005) (“Conviction on a 18 U.S.C. 1001 concealment charge requires a showing that the ‘defendant had a legal duty to disclose the facts at the time he was alleged to have concealed them’”), quoting, United States v. Curran, 20 F.3d 560, 566 (3d Cir. 1994).”
4) Comey and the Obama Co. may have also violated “50 U.S.C. sec. 1623- False declarations before grand jury of court”
In specific, 50 U.S.C. Sec. 1623 states:
“(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years, or both.”
Again, the Comey October 2016 FISA application was made under “oath” by Comey. Comey’s intentional and purposeful omission of the “material fact” that the core basis of his FISA application, the Steele “dossier” was a Clinton campaign paid-for document clearly makes Comey’s entire FISA declaration a “false material declaration.” Additionally, Comey made use of the Steele “dossier” itself which clearly contained many “false declarations.”
Section 1623 is even more important in that it shows Comey needed to include the material fact of the Clinton Campaign origin of the Steele “dossier” in order for the FISA court to assess the reliability of the “dossier.” And, consequently, purposeful failure to include the Clinton origin by Comey was a prima facie violation of 18 U.S.C. Sec. 1623.
5) US Attorney’s Criminal Manual requires “vigorous prosecution”
One need look no further than the US Attorneys “Criminal Resource Manual” for its reference to “1741. Perjury and False Declarations Before Grand Jury of Court” that states: “Because false declarations affect the integrity of the factfinding process, the Attorney General's Council on White Collar Crime recommends that offenders be vigorously prosecuted. "Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings." United States v. Mandujano, 425 U.S. 564, 576 (1976). See also, United States v. Wong, 431 U.S. 174, 180 (1977) ("lying is not a way to challenge the Government's right to ask questions").”
If the United States is remain a nation of laws, Comey and the Obama Company need to be investigated for possible actions against the laws of the United States of America in order to challenge the election of a President of the United States.
Mark Langfan is a New York-based attorney who frequently writes on Middle Eastern affairs.