Below is my column in The Hill Newspaper on the disclosure of the possible surveillance of Trump campaign staff and a decision to “unmask” and distribute transcripts of those interceptions. Fox has reported that there is a “smoking gun” linking the Obama Administration. However, Nunes later went on CNN and seemed to backtrack a bit in saying that he did not actually see the evidence. Evidence will reportedly be brought to Capitol Hill this week.
On the 40th anniversary of the publication of The Shining, Stephen King must be wondering if Washington is working on its own sequel. For the last couple months, Washington has been on edge, like we are all trapped in Overlook Hotel with every day bringing a new “jump scare,” often preceded by a telltale tweet. Indeed, a Twitter whistle has replaced suspenseful music to put the entire city on the edge of their seats.
In this Shining sequel, however, people are sharply divided on who is the deranged ax-wielding villain in this lodge, the president or the press. Ironically, with the recent disclosure that some of the Trump campaign may indeed have been subject to surveillance, the president is looking more like Danny Torrance, a character dismissed for constantly muttering “redrum, redrum” until someone finally looked in a mirror at the reverse image to see the true message.
The curious thing about President Trump is that his method and language in communications often mask legitimate issues or concerns. This may be such a case with the disclosure that indeed some Trump officials may have been subject to surveillance under the Obama administration.
Trump triggered this particular jump scare with the tweet on March 4 that he “just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!” He followed with such tirades as “How low has President Obama gone to tap my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”
The media pounced and rightfully demanded proof to support such a charge. When it was clear that no evidence would be produced, the media (again rightfully) pummeled the White House for failing to support one of the most alarming claims ever made by a president against a former president.
However, that is when the media seemed to switch roles and fell into a loop of repeating the same accusation over and over again like Jack Torrance endlessly typing “all work and no play makes Jack a dull boy.” The media seemed so delighted by the quagmire created by Trump’s tweet that it refused to acknowledge reasonable interpretations of the tweet or the possibility that there might have been surveillance.
One of the most telling examples of media mania was the insistence that Trump was referring only to wiretapping and no other form of surveillance. From the earliest days of the scandal, I balked at that narrow reading. As someone who has written and litigated in the surveillance field for over three decades, the narrow reading is absurd.
“Wiretap” has often been used as a generality for surveillance, particularly among those of Trump’s generation. It is the same colloquial meaning as when the Supreme Court commonly used “eavesdropping” to refer to surveillance.It was not limiting decisions like Katz v. United States to circumstances where people hid in the eaves of homes and listened to conversations within.
There is no reason to assume that Trump meant solely the act of an actual wiretap when he put wiretap in quotations as opposed to surveillance. Yet, when this obvious point was made by White House spokesman Sean Spicer, the media lit up over the White House was changing its allegation.
Likewise, referring to President Obama as tapping phones can reasonably be understood as the Obama administration, not specifically President Obama, venturing to Trump Tower in some disguise as a repairman to tap a phone. Yet, the media has continued to express alarm that the “facts are changing” when the White House made that obvious point about these tweets.
Now, Rep. Devin Nunes (R-Calif.), chairman of the House Intelligence Committee (who previously said he knew of no evidence to support the allegation) has disclosed that he has seen evidence that Trump presidential transition officials had their communications monitored during the Obama administration (though Nunes later suggested that he might not have actually seen the evidence of the surveillance).
He also said that the inadvertent interceptions were then subject to “unmasking” where intelligence officials actively and knowingly attached the names of the parties to transcripts and then circulated the information widely within the intelligence community. If true, that would clearly support a part of the president’s allegations and raise very serious questions about the improper use of surveillance. It would be Trump’s ultimate “redrum” moment.
Yet, when this disclosure was made by the chair of the House Intelligence Committee, CNN and other news outlets immediately proclaimed that it did not prove anything about the Trump allegations — again emphasizing that he said Obama “wiretapped” Trump’s phone. That is like saying that an alleged victim is not to be believed because he said that some “second story man broke into my home” when the evidence showed that there was no second story on the house and the burglar entered through an open window. The point is whether Trump campaign staff were subject to surveillance under the Obama administration.
Of course, the original tweets were poorly worded and inappropriate as a way for a president to raise this issue. Moreover, the inadvertent surveillance is rightfully distinguished from the original suggestion of a targeting of Trump. However, this would still be a very serious matter if intelligence officials acted to unmask the names and distribute them. The masking of names is meant to protect innocent people from such inadvertent interception as part of the minimization procedures in the surveillance area.
The White House appears unwilling to address the exaggeration and unfairness of the original allegation, while most of the media seems entirely unwilling to admit that there might indeed be an alarming abuse of surveillance rules.
In the end, I suppose our Shining sequel is even more scary than the original because you cannot entirely trust anyone in the Beltway Hotel. It is nothing but jump scares and creepy moments. Citizens are left running in the maze with Danny yelling that in this game “the Loser has to keep America clean.” Redrum.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School.