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President Donald Trump has again triggered a tsunami with a series of tweets. Trump went to his favorite device to accuse his predecessor, Barack Obama, of wiretapping Trump Tower. “Terrible! Just found out that Obama had my “wires tapped” in Trump Tower just before the victory. Various news outlets have noted that Breitbart just ran a story on the use or attempted use of Foreign Intelligence Surveillance Act (FISA) to investigate connections to Russian banks. The story was covering allegations voiced by radio host Mark Levin.
The first tweet stated “Nothing found. This is McCarthyism!” Trump threatened that “I’d bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!”
“Terrible!” Trump tweeted. “Just found out that Obama had my ‘wires tapped’ in Trump Tower before the victory. Nothing found. This is McCarthyism!”
I have previously stated that Trump’s use of twitter is not as shocking as many have suggested given the long-standing effort of presidents to use new technology to speak directly to the American people. However, such communications should not take on the character of stream of conscious thoughts or issues that should be first fully examined by aides or counsel. It is also problematic for a president to discuss FISA targets which are highly classified. Thus, it is a rather odd for a president to opine “Is it legal for a sitting President to be “wire tapping” a race for president prior to an election? Turned down by court earlier. A NEW LOW!”
The President has access not just to Breitbart but classified evidence including any and all FISA applications. (For full disclosure, I had occasion to go to the FISA court when I was an intern with the NSA and later became a critic of the court). The problem with the President’s question is that the standards for FISA are so low and easily satisfied (with little judicial review) that it is difficult to establish any illegality under the law.
Passed in 1978 as a compromise with the Nixon Administration, FISA allows for “foreign intelligence” surveillance and was designed to evade the fourth amendment protections governing the use of warrants. FISA surveillance is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power. That is manifestly different from probable cause to believe someone has committed a crime. It is true that, if the target is a “U.S. person,” there must be probable cause to believe that the U.S. person’s activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States. However, citizens can be collateral to the primary target under FISA.
In 1994 Congress extended FISA further to allow for covert physical entries in connection with “security” investigations, and then in 1998, it was amended to permit pen/trap orders. It has been used to gather business records.
There is provisions stating that a U.S. person cannot be surveilled “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” Thus, if Trump aides were targeted for political reasons, the surveillance would be unlawful even under the dubious protections of FISA. There are also minimization provisions designed to excise collateral or protected communications.
Notably, the tweet is likely to take over this news cycle just as the Administration was about to release the long-delayed Executive Order on immigration. As I previously discussed, a senior aide is being quoted as saying that it will be delayed again to guarantee that the order “has its own moment.” Of course, an executive order is not like some debutante that longs for its own moment like a coming out party at Mardi Gras. It is intended to protect national security and the “moment” (according to the government’s own filing) has already passed. However, whatever moment was being waited for, it may not come with this latest controversy.
I do consider the allegation of the prior Administration taping Trump Tower to be a matter of great concern but it depends on who was the target. Watergate after all involved an illegal break in and completely unlawful use of surveillance targeting political opponents. If true, this was done through a legal process. That does not make it right of course. Trump is correct that, if true, this should be a matter for investigation. The government should show considerable restraint in targeting political opponents. The Trump Tower was well-known to be the nerve center of the Trump campaign. However, we still do not know how the surveillance was tailored, if it was requested or granted.