donald_trump_president-elect_portrait_croppedPresident 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.



    1. The difference is a 145 million dollars was passed to the Clinton’s Russians’s and all the wicked web spun so far is centered on two people Obama and his control of his agencies and Clinton and their popularity with the really DARK deep Fourth branch of government .

      Looks like Lady Huma got dumped too. I wonder if her mid east friends will cover thieir tracks by having her turn states’s evidence. If so she would make a great addition to an otherwide dismal performance by Clinton and Kerry.

      Hmmmmmmm It gets better and better.

  1. If Trump was bugged then maybe Trump should keep quiet about it. If there is an investigation then the content of the bugged conversations may come out. Then he may be more than embarrassed. We need some insider like Snowden to reveal the truth. Maybe the truth will set Trump free or put him in prison.

    1. Maybe the truth will set Trump free and put Obama in prison. Seriously, why do you think Trump is spending so much time at his Mira Lago estate in Florida? Maybe it is one of the few places where Trump can have meetings and discussions without being bugged or spied on.

      1. OK then here’s the big question. You are a foreign dignitary or leader of a country or really yuge potential builder of jobs IN the USA. Trump offers the Lincoln Bedroom OR one of the cottages at Mar Lago? It’s still winter? Which would impress you the most?

  2. I would bet the wiretap was the reason Bubba and AG Lynch met secretly on the tarmac. No witnesses, no notes.

    1. I forgot about that and if there is a smidgen of a connection it ties the new stuff in with the ongoing investigation which now is Clinton= emails= Clinton Foundation= Weinar laptop = AG/Clinton airplane meeting = Lynch quashing the original investigation but FBI didn’t close the file = trails to Mid east = trails to Russia and a lot of big time cash being transferred = and what’s next?

      Whose going to rat out Hillary who didn’t protect those who took the fifth previously?

      Whose going to bring that evil empire crashing down?

      Can we get Pelosi and Schumer at the same time?

      I like what President Trump is doing but this time we have a REAL back up in Pence so open the chute and let her rip!

      I foresee a huge EPA request for funds to clean up a toxic spill in the Potomac!!!!

      1. Considering the woman involved it wasn’t for the usual reasons. He went for the dumb ass air heads as I recall and I don’t recall Lynch ever wearing purple.

  3. I’m much more interested in not only the story but why the story on the San Francisco withdrawal from JTTF is being ‘squashed’ not only here but nation wide.

    Something is smelling and it isn’t Rice-A-Roni.

  4. I have a difficult time believing that Trump made all of this up and there is nothing to this. Remember that the surveillance state powers are rife for abuse. So why are so many people assuming that the surveillance was done in good faith?

    It is possible that Trump was spied upon for legitimate reasons.

    It is possible that Trump was spied upon for political reasons.

    It is possible that Trump was spied upon without Obama’s knowledge.

    It is possible that Trump was not spied upon at all.

    At this point there is not enough information to narrow down the possibilities.

    1. Back to Molly G. Good points All it would have taken is a side comment “someone ought to be keeping an eye on this guy….” Same thing as saying “someone ought to be burning up these old emails.”

    2. MollyG

      That you have a difficult time recognizing a mentally unbalanced and easily distracted individual that somehow is President, is not unusual. You see what you want to see and hear what you want to hear. The bottom line here is that DDT should be so focused on running things, being the only one who can fix it, that he shouldn’t have time for these stupid games. The fact of the matter is that DDT is dangerous and should step aside and let Pence run things. We’d all be better off. Or do we have to experience more of the same that came with the eight years of the three stooges?

        1. anon,

          Do you have the link to the leaked document? Is Kurt providing it? If not, neither of you knows what was ordered or by whom it was ordered.

          Here’s what we do know. Obama had a citizen monitored and killed in an extrajudicial process via a drone kill. The US citizen’s name was Anwar al-Awlaki. So we do know that Obama is very willing to target US citizens both for surveillance and for killing them. Given Obama’s known track record, it is not delusion to suspect him of ordering Trump tower bugged.

          Until the evidence is provided, no one can say what is going on here. Kurt needs to put up or shut up. If he won’t provide the actual document for review by the public he can’t make either assertion he is making in his tweet. He’s simply making things up!

      1. “You have trouble recognizing a mentally unbalanced and easily distracted person.” Well we all got you pegged a long time ago, Mr. Canada/France. So, there’s that.

      2. OK the excuse for the day from the far far left for the inadequacies of eight years to be polite is .. a bunch of unsubstantiated clap trap that might have been useful prior to 8 Nov but ….even if it had been true was deemed of far lesser importance than blocking the witch of the left and the left itself. Ho Hum The left programming system needs a new scriptwriter., So much for the left.

      3. I am trying to keep a level head about Trump. Some of the things he is doing is nuts and dangerous, and sometimes he does normal things and the media goes bonkers. There is a hyper-reaction to everything Trump does on both sides and one must look at every report rationally.

        There is simply not enough information to know what is going one. However there is one curious thing, Trump has full access to all US intelligence. He could get the truth about this in about 30 minutes, the then has the legal authority to declassify anything that he finds. So the calls for a congressional investigation are a bit odd since he could put the matter to rest quickly.

  5. Trump would like this quote, I think:

    “Mad Matter: “Have I gone mad?”
    Alice: “I’m afraid so. You’re entirely bonkers. But I’ll tell you a secret. All the best people are.”

    1. When will CIA-groomed Obama release his college transcripts, proof that he entered Pakistan in 1981 on a valid U.S, passport, proof that his SS# is valid despite being a # for Connecticut, source of his college funding, proof he didn’t file for admission to college as a foreign exchange student, and how he happened to get a job at CIA-front IBC. There are more mysteries about Mr. Obama – including the never-fully truth about his birthplace.

      1. Obama will never release all of his sealed documents. That would expose him as the fraud he is. But one can hope that Trump lets it rip and goes after Obama in every legal way he can. Got to fight dirty -just like Obama and the Dims do.

        1. How about an amendment to the Constitution banning socialism in any of it’s forms. ANY.

  6. Isaac…
    -G. Gordon Liddy felt–and may still believe— that bugging the Democrats office in the Watergate complex was the patriotic thing to do.
    You have more in common with Liddy than I would have thought.

    1. Let’s have a HUGE investigation. Oh wait, the FBI is already investigating Trump and his cronies.

  7. Hypothetically, for the sake of argument, if Obama did have DDT’s offices bugged it would have been prudent, in the best interests of the US and its citizens, and negligent if he hadn’t. After all we are dealing with a buffoon who deals on a regular basis with Russia. We are dealing with a megalomaniac that is perhaps the most dangerous person alive. We are, in fact, dealing with the primary threat to our country and all it stands for.

    DDT would be the first to come up with the argument that it is the responsibility of the only person that can save the world to do everything to safeguard his world, if DDT had bugged someone’s offices. This is not only hypocritical of DDT but incredibly asinine and insecure. DDT is the President. Why doesn’t he simply get on with the job instead of languishing on these issues. Obama is gone. There is no opposition. This anal behavior illustrates one thing and one thing only. DDT is mentally unbalanced.

  8. I sense Professor Turley has bent over backwards to give President Trump the benefit of the doubt over these last few weeks (some of this being well deserved by Trump) but that this patience is now wearing just a little bit thin: “stream of consciousness” indeed. Or perhaps, if one adjusts for the reserved cautious language of those who deal in law, the vernacular version would sound more like stripping paint with a jack hammer. Can’t tell.

    In any event, Trump’s impulsive candor can at best be considered a mixed blessing in situations like this. I confess this is the first time I have felt concern should the stakes be more along the lines of, “Damn I want to hit something,YES!, that little red button will do.” (I assume it’s red). Of course the red button is not quite that simple, but the image is more to be suggestive than literal.

    The only way Trump can get out of this other than by capitulation to the powers that be, is by bringing out the whole truth of the Deep State and Democrat as well as Republican involvement in it, for the American people to see – and yet, because of the way we are so amazingly and so thoroughly conditioned to our respective tribes rather than to the actual movers and shakers behind those tribes, I think it would be a totally lost effort.

    That leaves capitulation and that almost certainly means escalation of tensions with Russia.

    Like the effects of climate change, I think we are simply in for the ride as is Trump.

      1. Yes, this is a good point, but it’s not that simple or easy. You declassify a little, and – out of context – it will prove nothing or be ambiguous. You declassify a lot, and you unleash a civil war. Just look at this site or a site like DKOS.

        1. Trump’s election was an insurgency. His must use the full power of his office to destroy his enemies if they have over-played their hand. He must do this decisively. First make sure you are right. Then, go ahead!

      2. Speaking of that, I wonder how hard a time Bernie would have had. Seriously, he would be subjected to the same thing for almost the same reasons unless he towed the line with Russia.

        The powers that be don’t care if Trump is flamboyant or if Bernie is polished. They simply want them to do what they tell them to do.

        1. Bernie would have been called a communist by the right wing. With Trump it more than likely involves hidden financial transactions.

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