The headlines, for example from the NY Times, shout Trump, Offering No Evidence, Says Obama Tapped His Phones. On the surface, given the new
normal abnormal when it comes to truth in the age of Trump, we could just say “there he goes again.” But this bunch of Twumps are different.
Wired.com explains that If the Feds Did Wiretap Trump Tower, It’s Not Obama Who Should Worry
Early Saturday morning, President Trump fired off a series of tweets accusing, without evidence, former President Barack Obama of wiretapping Trump Tower in the month before the election. Trump compared the alleged snooping to “Nixon/Watergate,” and intimated legal action.
This may not be new. Trump always threatens legal action and then backs down or has it dismissed in court. But a different version of it might be correct - and with serious consequences for Trump.
What makes the broader allegation so extraordinary isn’t that it is new. Quite the contrary. Various reports that the Foreign Intelligence Surveillance Court granted Justice Department investigators a warrant to probe the Trump campaign’s ties with Russia surfaced in November. What makes Trump’s Twitter tirade so striking is what prompted it, and what it might imply if it’s true.
Before continuing with the story, let’s pause and consider the question: is Trump’s tweet true or not? I entertain two Trumpotheses. Suppose it’s false. That’s plausible given that Trump is a documented liar, the current evidence being that The First 100 Lies: The Trump Team’s Flurry Of Falsehoods (as reported by the Huffington Post, “The president and his aides succeeded in reaching the mark in just 36 days”). He or someone on his team trotted out this lie as a distraction to direct the collective attention away from the investigations into the connections between Trump and his team and the Russians. However, that does not seem to be working because the news stories are now focussing on the ongoing investigation by the feds into Trump’s Russian connections.
Suppose instead that Trump is fundamentally correct. Suppose that someone in the government, did get authorization to tap Trump’s phones. For that to occur, there would be overwhelming evidence of “unsavory” contacts between Trump and Russia or other foreign power. In that case, Trump’s claim about Obama is wrong, but the assertion that his phone was tapped could still be correct. And that would be damning. Here’s why.
From the Times: “It would have been difficult for federal agents, working within the law, to obtain a wiretap order to target Mr. Trump’s phone conversations. It would have meant that the Justice Department had gathered sufficient evidence to convince a federal judge that there was probable cause to believe Mr. Trump had committed a serious crime or was an agent of a foreign power, depending on whether it was a criminal investigation or a foreign intelligence one.”
And Wired.com continues.
Baffling as it may be, it appears Trump’s accusation stems from a recent article published on Breitbart, the conservative news outlet formerly run by White House senior adviser Stephen Bannon.
“This is a somewhat stunning, in so far as the president of the United States doesn’t need to get his information about classified activity from Breitbart,” says Cato Institute fellow Julian Sanchez.
“If he has evidence that he was wiretapped without a proper FISA order being sought, that would be a huge scandal, and he should produce whatever evidence he’s got,” says Sanchez. “It’s a pretty serious claim, and it’s striking he would make it without anything solid to back it up.”
Republican Senator Ben Sasse called on the president to clarify his claims, stating that “we are in the midst of a civilization-warping crisis of public trust.” Obama spokesperson Kevin Lewis strongly denied extra-judicial surveillance of any US citizens to Politico in response to the claims..
Look past the president’s conspiracy theories, though, and one fact stands out: However strongly Trump feels that he’s right, he’d better hope he’s wrong.
Trump’s wiretap claims … carry presumably inadvertent implications. First, based on previous reporting and the nature of FISA courts, any wiretaps within Trump Tower would be legal. And they would stem from overwhelming evidence that the Trump campaign, or someone within it, has unsavory ties to Russia or another foreign power. Otherwise, it’s unlikely those wiretaps would exist at all.
If federal authorities did have cause to listen in on Trump Tower, though, and they provided enough evidence for a FISA court to approve the snooping, Obama is not the one who ought to worry.
The short of it comes from the report by Politicususa.com: “Donald Trump shouldn’t have tweeted his morning missives to paranoia, as he has announced to the world that he is being spied on and the news won’t be good. While he was trying to cast aspersions on former President Obama, Trump managed to cut off his nose to spite his face because he focused attention on why the government would be spying on him.”
The Times has my nomination for the quote of the day.
Ben Rhodes, a former top national security aide to Mr. Obama, said in a Twitter message directed at Mr. Trump on Saturday that “no president can order a wiretap” and added, “Those restrictions were put in place to protect citizens from people like you.”
More commentary on the FISA process below the break.
Here’s the scoop on FISA from politicususa.com.
A FISA warrant, or Foreign Intelligence Surveillance Act warrant, is a judicial warrant that has to be applied for.
A FISA warrant must certify that the “target of the proposed surveillance is either a ‘foreign power’ or ‘the agent of a foreign power’ and, in the case of a U.S. citizen or resident alien, that the target may be involved in the commission of a crime.”
This is the warrant that was reportedly (and disputably) given to counter intelligence agents so they had ability to cover those in Donald Trump’s campaign who had ties to Russia.
House Intelligence Committee member Rep. Jim Himes (D-CT) explained that Trump might have declassified a warrant against his own people with his tweet. Rep. Himes said, “Talking about a particular warrant, the existence of a warrant is something you simply don’t do. So when I wake up this morning and find that the President is tweeting about it. Mind you, he is the ultimate declassification authority, and if he just declassified the existence of a FISA warrant on his people.”
The Federal Judicial Center explained:
“Warrant applications under the Foreign Intelligence Surveillance Act are drafted by attorneys in the General Counsel’s Office at the National Security Agency at the request of an officer of one of the federal intelligence agencies. [Scriber: not the President!] Each application must contain the Attorney General’s certification that the target of the proposed surveillance is either a ‘foreign power’ or ‘the agent of a foreign power’ and, in the case of a U.S. citizen or resident alien, that the target may be involved in the commission of a crime.”
Heat Street reported that the FBI was granted a FISA warrant in October of 2016 to cover the activities of “‘U.S. persons’ in Donald Trump’s campaign with ties to Russia.”
The confirmation of a FISA warrant will be denied because that’s the nature of intelligence work. So it’s up to time to reveal if there was a FISA warrant issued, but people in the know seem to think there is.
If there wasn’t a FISA warrant issued already, Trump’s tweets just admitted that there should be. So the question is, the warrant would need to have certified that the person or people are foreign powers or agents of.
By tweeting without thinking, Trump may have declassified a warrant and brought down his entire presidency.
And here’s more from the Wired report.
If nothing else, Trump’s tweets show he doesn’t understand how the FISA system works. If he did, he may have limited himself to tweeting about Arnold Schwartzenegger quitting The Apprentice this morning.
“While the order would have been requested by some part of the executive branch, Obama can’t order anything. Nor can Trump,” says former NSA lawyer April Doss, who stresses that her comments are based only on public information. “The order has to come from the court, and the court operates independently.”
FISA court judges serve seven-year appointments, so the court’s composition doesn’t ebb and flow with the political tides. What’s more, specific laws adopted in the wake of Watergate prevent the very activity Trump accuses Obama of.
“You can’t tap the phones of a political candidate for political purposes,” says Doss.
What you could tap them for? Acting as a foreign power, or as an agent of a foreign power. In other words, spying against US interests with both knowledge and intent.
Clearing that bar is difficult, by design. FISA warrants don’t allow for broad wiretaps of, say, every call going in and out of a specific office in a 58-story Manhattan skyscraper. Federal authorities must demonstrate not just probable cause, but that a given phone line serves primarily to undermine US interests. It’s difficult, for instance, to obtain a warrant to wiretap a shared office, for fear of picking up innocent third-party conversations.
“I have high confidence that a FISA court judge would not have authorized any warrant unless it met all the requirements under the statute,” says Doss.