Order Michael Finch’s new book, A Time to Stand: HERE. Prof. Jason Hill calls it “an aesthetic and political tour de force.”
Sign up to attend Michael’s talk in Los Angeles on Thursday, November 20: HERE.
Many were shocked to find out that Jack Smith (or Jack ‘Frost’ Smith for short, as I prefer) had subpoenaed the cell phone records of many Republicans, including Senators, during the ‘Arctic Frost’ investigation into President Trump for a matter of days. Now we have learned that the Biden administration appointed ‘Special Counsel’ also requested some cell phone records, including mine, for nearly THREE MONTHS from November 3, 2020 to January 8, 2021.
To understand the Constitutional crisis that this has created, one must first understand that the subpoena was issued as a “Grand Jury Subpoena.” Although we were not in the room when the pitch was made to the grand jury, here is what is fairly obvious. Jack Smith and his cronies, provided information to a group of Washington, DC citizens, 95% of whom (or maybe all of whom) voted for someone other than President Trump, indicating that they believed there was a grand conspiracy for an insurrection to destroy the proper election of the ‘electorally pure’ Joe Biden. To the minds of these jurors, Trump and all of his henchmen must be stopped.
Jack Smith or someone on his behalf must have assured these fine people of the grand jury that this insurrection occurred on such a broad scale, that it included hundreds of members of Congress and other groups, and that they just had to agree to let them get subpoenas of very personal material from those people in order to stop the insurrection and prosecute the insurrectionists. Further, it was critical that those people must not know that the information was being sought or these people were so devious that they would likely destroy all of the evidence.
That last part we know because that was part of the order issued to the recipient of the subpoena that they could not disclose this to the individuals whose information was being sought or they might try to destroy it or get rid of it: sort of like Hillary Clinton did with her phone and emails.
Keep in mind, these subpoenas do not rise to the level of requiring probable cause as do all warrants under the 4th Amendment. That is normally not an issue when the subpoena is issued to the party whose records are being sought because that party can immediately go to court and challenge the legitimacy of a lack of probable cause.
Senator Grassley’s investigators revealed to me that, as far as they could tell, Verizon received the subpoena and simply turned over everything that was sought. However, AT&T and others balked at the legality after apparently seeing that the records of elected officials were involved. As far as they could tell, Jack Smith pushed no further with those companies that refused to produce the records and did not take further legal proceedings to justify his actions. Good for AT&T.
There have been cases through the years that indicate that getting the ‘metadata’ (the massive record of phone numbers calling other numbers) from cellular providers did not violate Constitutional norms since it did not reveal their names. However, when the Department of Justice (DOJ) grabs months of cellphone records from an American citizen without proof of any probable cause of a crime being committed by that individual, it is time for the courts to proclaim clearly that this is a fishing expedition and requires a major hand slap to this Orwellian prosecutor.
The importance of the “Congressional privilege” that extends to material that is produced in a Congressional office, and why it’s more important than the attorney-client privilege (which the Obama and Biden DOJ had no problems violating as well), is because people come to Congress members and Senators with concerns about their government. That includes whistleblowers reporting problems within the FBI and DOJ or within the Executive Branch.
The only way a republic is perpetuated is when there are plenty of checks and balances on governmental power. If one branch, especially the one that can put people in prison, is able to stifle checks against its enormous power, the checks and balances fail, as does the democratically elected republican form of government. The executive branch can then control who has power and who goes to jail without ever needing to obtain executive branch power again.
In the past when I revealed the many times that FBI agents and others had privately reported Constitutional abuses within the DOJ and FBI to me, I was careful not to say how they got in touch with me. If whistleblowers knew that the DOJ could simply grab information from Congress members or their offices and phones, the checks and balances on the department that is capable of the most heinous abuses would be gone.
When Congressman William Jefferson of Louisiana was being investigated by the FBI, they obtained a legitimate search warrant for his home in August of 2005 and found $90,000 in cold hard cash in his home freezer. From what was reported in the news, it certainly sounded as though the FBI had plenty of probable cause to do that search. Though we can rarely trust mainstream media reports regarding warrants, the information available from my perspective as a former judge who used to consider whether the sworn information was adequate, seemed more than compelling enough to sign that search warrant.
Historically, in the rare case in which the DOJ wished to run a search warrant of a Congressional office or of Congressional work product, contact would be made with the House Counsel for all of Congress. The warrant would be produced and the House Counsel would gather all the material and go through it carefully and only turn over what was not Congressionally privileged.
In Congressman Jefferson’s case, FBI Director Mueller was interested in intimidating all of Congress like never before. He raided the Congressional office with a search warrant in May of 2006 and took everything he wanted. The DOJ/FBI defense was that they had set up a “fire wall” of people within the DOJ who would not be prosecuting the case, and those hand-picked DOJ lawyers would be the ones to sort through all of Congressman Jefferson’s material and decide which he could have back and which he could not. The DOJ even got a DC federal judge to sign the warrant and approve that absolutely absurd process.
There was appropriate outrage on Capitol Hill. Because of my background I was asked to sit in on the private discussions between the DOJ attorneys, the House Counsel, attorneys for the Speaker and an attorney from the White House. What started out somewhat civil got exceedingly heated very quickly. The historical manner of protecting privileged material that I described above was laid out, but the DOJ did not care. It sounded like the DOJ had plenty of evidence to convict William Jefferson without putting their legitimate case in jeopardy by fanatically committing a Constitutional error of this type.
The matter was ultimately appealed to the DC Circuit which told the DOJ and the FBI that you may NOT raid a Congressional office, take everything, and claim it was ok because you set up an IN-HOUSE fire wall. Such review of all materials HAD to be done outside the Executive Branch. The DC Circuit’s decision was then appealed by the DOJ to the Supreme Court which saw no reason at all to change the lower appellate court decision, so they refused to take it up.
Ultimately, I realized there was a message from FBI Director Mueller to Congress: Lay off of what I do or your office could be next.
During the Bush administration, there were conservative pundits who did not understand the critical nature of the Congressional privilege. They insisted that Congress “was not above the law” and could have their offices searched too. Of course they could! But, care had to be used to protect Congressionally privileged information pertaining to their constituents, whistleblowers, and Congressional investigations of the executive branch. They missed the critical point that helped protect them and all of us from a weaponized DOJ.
The callous actions by Jack ‘Frost’ Smith based on NO PROBABLE CAUSE took Mueller’s abuses in 2006 to a whole new level of unconstitutionality and possible criminality. What makes it a much more severe Constitutional crisis is the way that Smith went after the former President to attempt to prevent him from becoming the next President. That is weaponization on a scale that makes Watergate look like schoolyard folly.
The Constitution’s 4th Amendment says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
To essentially say that we need over two months of phone records to see whom someone has been talking to without probable cause of a crime reeks of something the Soviet Union would do without any regard to the many protections of their constitution. Yes, the Soviet Union’s foundational documents enumerated elaborate rights. Unfortunately, no one, especially Soviet courts, would dare to enforce them. If they ever did, there was no one to protect the judge from being sent to prison on fabricated charges because there were no checks and balances.
Jack Smith’s efforts to prevent a candidate from being elected, to destroy him and his family financially and personally, sent a message that no one will be allowed to stand in the way of the complete Democrat takeover and weaponization of the federal government. And they were so close. If President Trump had lost, our republic would have also been lost. It seems that every month or so more evidence comes out to substantiate that great fear.
Thank you, President Trump, for not giving up.
Now, while the current DOJ is investigating what happened within its ranks, let’s work on cleaning up the federal judges who violated their constitutional duties and acted with “bad behavior’ during this nail-biting threat to our republic.
