Holes in the US Constitution

The first-term Trump F.B.I. put its contempt for the Constitution in writing and the Biden F.B.I. acted as if nothing was wrong, writes Andrew P. Napolitano. Under the second Trump administration, nothing has changed.

By Andrew P. Napolitano

Among the lesser-known holes in the U.S. Constitution cut by the Patriot Act of 2001 was the destruction of the “wall” between federal law enforcement and federal spies.

The wall was erected in the Foreign Intelligence Surveillance Act of 1978, which statutorily limited all federal domestic spying to that which was authorized by the Foreign Intelligence Surveillance Court.

The wall was intended to prevent law enforcement from accessing and using data gathered by America’s domestic spying agencies.

For 24 years, government spying has been rampant in the U.S., and the feds regularly engage in it as part of law enforcement’s well-known antipathy to the Fourth Amendment.

Here is the backstory.

After President Richard Nixon resigned the presidency, Congress investigated his abuse of the F.B.I. and C.I.A. as domestic spying agencies. Some of the spying was on political dissenters and some on political opponents. None of it was lawful.

What is lawful domestic spying?

The modern Supreme Court has made it clear that domestic spying is a “search” and the acquisition of data from a search is a “seizure” within the meaning of the Fourth Amendment. That amendment requires a warrant issued by a judge based on probable cause of crime presented under oath to the judge for a search or seizure to be lawful. The amendment also requires that all search warrants specifically describe the place to be searched and the person or thing to be seized.

The language in the Fourth Amendment is the most precise in the Constitution because of the colonial experiences with British general warrants. A general warrant was issued to British agents by a secret court in London and did not require probable cause, only “governmental needs.” That, of course, was no standard whatsoever, as whatever the government wants it will claim that it needs.

General warrants did not specify what was to be searched or seized. Rather, they authorized the bearers to search wherever they wished and to seize whatever they found — stated differently, to engage in fishing expeditions.

When Congress learned of Nixon’s excesses, it enacted FISA, which required that all domestic spying be authorized by the new and secret FISA Court. Congress then lowered the probable cause of crime standard for the FISA Court to probable cause of being a foreign agent, and it permitted the FISA Court to issue general warrants.

How can Congress, which is itself a creature of the Constitution, change standards established by the Constitution? It cannot legally or constitutionally do so. But it did so nevertheless.

The FISA Wall 

Yet, the FISA compromise that was engineered in order to attract congressional votes was the wall. The wall consisted of language reflecting that whatever data was acquired from surveillance conducted pursuant to a FISA warrant could not be shared with law enforcement.

So, if a janitor in the Russian embassy was really an intelligence agent who was distributing illegal drugs as lures to get Americans to spy for him, and all this was learned via a FISA warrant that authorized listening to phone calls from the embassy, the telephonic evidence of the drug dealing could not be given to the F.B.I.

The purpose of the wall was not to protect foreign agents from domestic criminal prosecutions; it was to prevent American law enforcement from violating personal privacy by spying on Americans without search warrants.

Fast forward to the weeks after 9/11 when, with no serious debate, Congress enacted the Patriot Act. In addition to permitting one federal agent to authorize another to search private records — contrary to the Fourth Amendment — it also removed the wall between law enforcement and spying.

Of course, the language in the statute sounds benign and requires that the purpose of the spying must be national security and the discovered criminal evidence — if any — must be accidental or inadvertent.

In the last year of the Biden administration, the F.B.I. admitted that during the first Trump administration it intentionally used the C.I.A. and the National Security Agency to spy on Americans about whom the F.B.I. was interested, but as to whom it had neither probable cause of crime nor even articulable suspicion of criminal behavior.

Articulable suspicion — the rational ability to point a finger at a criminal actor; a lower standard than probable cause — is the linchpin for the commencement of all criminal investigations. Without it, we are back to fishing expeditions.

The F.B.I. admission that it uses the C.I.A. and the NSA to spy for it came in the form of a 906-page F.B.I. rulebook written during the first Trump administration, disseminated to federal agents in 2021, and made known to Congress in 2024.

Needless to say, the C.I.A. and the NSA were not pleased. The C.I.A. charter prohibits its employees from engaging in domestic surveillance and law enforcement. Yet, we know the C.I.A. is present physically or virtually in all of the 50 U.S. statehouses.

The NSA is required to go to the FISA Court when it wants to spy. We know that this, too, is a charade, as the NSA regularly captures every keystroke engaged on every mobile device and desktop computer in the U.S., 24/7, without warrants.

What is startling is that the Trump F.B.I. actually reduced to writing its contempt for the Constitution that its employees have sworn to uphold, and the Biden F.B.I. acted as if nothing was wrong, and under the second Trump administration, nothing has changed.

The F.B.I. works for the Department of Justice. The C.I.A. and the NSA work directly for the president. With a phone call, President Donald Trump — who was personally victimized by this domestic spying 10 years ago — can stop all domestic spying without search warrants. He can re-erect the wall between spying and law enforcement. He can forbid executive branch personnel from engaging with the FISA Court.

Trump can close the holes in the Constitution if he didn’t fear the wrath of an intelligence community still out of control.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here. 

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