Yesterday’s press conference by White House Spokesman Sean Spicer seemed uncomfortably close to a Saturday Night Live parody as Spicer spared with CNN and other news outlets over President Trump’s wiretapping allegations. I actually was sympathetic with Spicer on one point: the media continues to take a literal meaning of Trump’s reference to “wiretap.” Some after the first tweet, I stated on CNN that I did not believe that Trump was speaking literally and that he likely meant “surveillance.” I have written and litigated in the field of surveillance over the course of decades and the use of “wiretap” to mean surveillance is a common, if inartful, practice — particularly among older Americans. That does not mean that Trump’s allegation of surveillance is true or supportable. That should be the focus, not this recurring rhetorical point. However, there has been a truly shocking lack of discipline among high-ranking Trump staffers in their public comments, including comments that have undermined the immigration orders. A good example of that ongoing problem is the suggestion that British intelligence surveilled Trump for Obama. This allegation had no place in a White House briefing and led to a reported embarrassing apology from the Administration to the British and a promise not to repeat it. It appears that there was no James Bond contract to surveil and the Administration is again shaken not
stirred scripted. [UPDATE: CNN is reporting late Friday that Sean Spicer has denied that any apology has been made to Britain. For its part, Fox News reportedly is saying that it has no support for the allegation raised by Judge Napolitano]
The United States and Great Britain are members of the Five Eyes alliance – a joint intelligence co-operation agreement of the United States, England, Australia, Canada and New Zealand. The agreement expressly states that it cannot be used to circumvent national laws. In other words, GCHQ could not engage in the alleged surveillance without not just breaking U.S. law but the agreement.
Spicer repeated a conspiracy theory that the secretive Government Communications Headquarters (GCHQ) were used into avoid any “American fingerprints” — an allegation that the British immediately called “totally untrue and quite frankly absurd.” Other British leaders called the allegation “shameful.”
Spicer attributed the theory to Andrew Napolitano. On March 14th, Judge Napolitano made the following statement:
Three intelligence sources have informed Fox News that President Obama went outside the chain of command. He didn’t use the NSA, he didn’t use the CIA, he didn’t use the FBI and he didn’t use the Department of Justice.
He used GCHQ. What is that? It’s the initials for the British intelligence-finding agency. So, simply by having two people saying to them president needs transcripts of conversations involving candidate Trump’s conversations, involving president-elect Trump, he’s able to get it and there’s no American fingerprints on this. Putting the published accounts and common-sense together, this leads to a lot.
At the White House, Spicer said:
“Three intelligence sources have informed Fox News that President Obama went outside the chain of command. He didn’t use the NSA. He didn’t use the CIA. He didn’t use the FBI, and he didn’t use Department of Justice.
“He used GCHQ. What is that? It’s the initials for the British spying agency.
“They showed simply by having two saying to them the President needs transcripts of conversations involving candidate Trump’s conversations involving President-elect Trump, he’s able to get and there is no American fingerprints on this.”
The subsequent apology reportedly came from both Spicer and the U.S. government. This is obviously embarrassing not just for Spicer but the country as a whole. It reveals a continued free-lancing and improvisational character of Administration officials in their public comments. That is particularly serious when it involves the White House spokesman who is supposed to maintain a coherent and well-supported position for the Administration.
The Administration cannot simply careen in this fashion from controversy to controversy. Once again, the valid point (concerning the use of “wiretap”) was lost in the firestorm created by the reference to the conspiracy theory.