Executive Branch

Eight Buckets of Cold Water for the Trump Wiretap Story

Stewart Baker
Sunday, March 5, 2017, 6:53 PM

As with all things Trump, the media is so eager to trash the President that it has turned a serious story into a partisan melee. What both sides need are a few buckets of cold water. Here are eight.

1. The Obama camp’s initial denial was spin.

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As with all things Trump, the media is so eager to trash the President that it has turned a serious story into a partisan melee. What both sides need are a few buckets of cold water. Here are eight.

1. The Obama camp’s initial denial was spin.

Most media outlets treated the Obama camp’s initial denial of misdeeds as conclusive. Typical was CNN, which ran the story under the headline “Trump’s baseless wiretap claim.” But the denial was actually quite limited. Obama’s spokesman said, “Neither President Obama nor any White House official ever ordered surveillance on any US citizen. Any suggestion otherwise is simply false."

That’s true enough, but more or less irrelevant. Under current law, the President doesn’t order surveillance, The Attorney General does. Who thinks that if Loretta Lynch and not President Obama ordered surveillance of the Trump campaign we could all kick back and stop worrying about politicization of national security?

The Obama camp was so relentlessly on-message that one couldn’t help wondering what questions it was avoiding. But to be charitable, maybe no one who was talking actually knew the details of the FBI surveillance decisions, so they stuck to a line that had traction and that they knew was true. That seems plausible in light of a more recent and firmer denial by former Director of National Intelligence James Clapper. But his statement too has limits, as we’ll see.

2. Trump’s tweets are not “unsupported.”

Diving deep into Roget’s Thesaurus, media outlets were quick to call the President’s charges “baseless,” “unfounded,” and “without evidence.” What they seem to mean is that he didn’t footnote his tweets. But any halfway decent reporter could have found the source of the President’s charge—a Breitbart article that built on earlier reports by the BBC and Heatstreet. These articles make quite specific claims that the Obama administration used the Foreign Intelligence Surveillance Act to investigate alleged Russian ties to the Trump campaign. Most media outlets have been surprisingly incurious about those claims, or at least slow to investigate them, as though they were somehow beneath the dignity of real reporters already swamped with their Roget’s research.

The charitable interpretation of this “unsupported” meme is that the President actually could find the truth of the matter and didn’t. In this interpretation, the President only needs to ask the Justice Department whether there was such a FISA surveillance order, and he should have done that before he tweeted.

Well. It’s certainly true that FISA surveillance is the most fanatically papered process in government. The Justice Department could provide a conclusive answer to the question of what it surveilled by releasing some of that paper. Let’s imagine how that conversation goes.

POTUS: General Sessions, I didn’t wake you did I?

AG: No, Mr. President. I’m always up this early on Saturdays.

POTUS: So the thing is, I’m reading these allegations that Obama wiretapped me and my campaign. I’m outraged, and ready to condemn him, but I don’t want to go off all unsupported and without a basis in fact. You see?

AG: Yes, Mr. President.

POTUS: Good. I’d like you over at the White House right away to give me a complete briefing on any and all surveillance conducted on me or anyone connected to my campaign as part of an investigation into ties to Russia. When can you get here?

AG: Uhhh...

Maybe the New York Times and CNN would understand that this kind of request is just part of the fact-checking they expect from any President before he tweets. But I’m guessing not. Instead, they’d accuse him of compromising an investigation and intelligence sources and methods. The more you think about it, the harder it is to see how the President could have satisfied the media’s demand that his view have a deeper “basis in fact.”

3. It’s plausible, but probably not scandalous, that Obama administration used FISA to investigate Trump-Russia ties.

Any Russian effort to influence the American election is a deadly serious national security concern, and the FBI has an obligation to investigate such charges. According to Breitbart, Heatstreet, and the BBC, the FBI went to the FISA court twice with requests to investigate the charges. The first time was in June 2016, and the scope was wide. It focused on campaign finances, Russian banks, and named members of the Trump team. Still according to these outlets, the FISA court turned that request down. But it granted a narrower order in October, focused on a single Trump server suspect of links to a Russian bank and not on Trump insiders.

These are all claims about classified information, so I don’t know if they’re true, but nothing about them sounds the least bit odd. Anyone not in a coma during the 2016 campaign knows that by June charges of ties between the Trump campaign and the Russian government were common. By October, a dubious but hard to disprove claim had surfaced of a surreptitious communication channel between a Trump server and a Russian bank. If true, these were serious national security concerns. And the way to find out if they were true was to launch an FBI investigation, which would almost certainly involve the use of FISA.

The problem is that deciding to open an investigation is inextricably tied to partisan politics. Open it, and the Bureau is siding with Hillary Clinton. Refuse to open one, and the Bureau is helping Donald Trump. And indeed that’s exactly how Breitbart and Donald Trump have interpreted reports that an investigation was opened.

4. FISA court rejections of government surveillance requests aren’t rare.

Presumably as evidence that the investigation was in fact politically motivated, Breitbart and others note that the FISA court “uncharacteristically” turned down the Justice Department’s surveillance request. Breitbart is right that the FISA court rarely turns Justice down flat. But it often sends Justice back to do more work or to limit the request. Call it a soft rejection. According to a letter by the Chief Judge of the court, soft rejections happen to about a quarter of all requests. (The letter has since disappeared from its original location but can be found here. H/t for the research to Marcy Wheeler.)

5. FISA court surveillance may not be especially spooky.

Everyone seems to assume that a FIS surveillance order means that the full force of the intelligence community’s intrusive technology will be aimed at the target. But the judicialization of intelligence collection means that a lot of FISA “surveillance” orders look a lot like, well, bank subpoenas or telephone company billing record requests. There are hints in some of the Breitbart/Heatstreet/BBC stories that the FBI may simply have sought payment records from Russian banks or the “to” and “from” metadata associated with a Russian bank server. (See also this well-informed analysis by Julian Sanchez.) That’s not the stuff of spy novels. But as we’ve forced intelligence agencies more and more into the same legal channels as police agencies, we should not be surprised to discover that they’re using police tools.

That kind of takes the wind out of everybody’s sails, I realize. But maybe not everything is the occasion for a good old fashioned partisan freakout.

6. A FISA surveillance order on Russian ties to the Trump campaign doesn’t mean that anyone in the campaign was a Russian agent.

It’s true that the target of a FISA order must be an agent of a foreign power, but anyone acting for the Russian government might qualify, including Russian spies and embassy officials as well as state-owned or even state-influenced banks. An order focused on those parties could easily be issued based on evidence that they were trying to influence the Trump campaign, without implying that they had had any success. Of course, surveilling a Russian official talking to a Trump campaign official inevitably means surveilling the Trump official too, as Mike Flynn learned to his cost. From his point of view, and perhaps from the President’s, this is hard to distinguish from surveillance of the Trump campaign. Who’s right? It depends on whether you trust the Obama administration to avoid partisan temptation in using FISA. In other words, it’s another partisan pitfall created for intelligence agencies by the Russian influence campaign.

The last two points put in perspective DNI Clapper’s statement on "Meet the Press": “There was no such wiretap activity mounted against the president-elect at the time as a candidate or against his campaign.” He’s not ruling out surveillance that would pick up Trump officials’ communications, and he’s not ruling out records requests that are less intrusive than wiretaps, quite possibly because he’s sure he’d remember a wiretap order against the Trump campaign but not something more preliminary or aimed in a different direction.

7. We don’t have to rely on speculation and leaks to find out whether the Obama administration improperly surveilled the Trump campaign.

The suspicions raised by the President and his media sources are serious. I don’t think the answer is for the Trump administration to declassify records from the FISA court. Those records will need to be redacted, and claims of selective redaction will give conspiracy theorists on the left a field day. In any event, the suspicion that the surveillance was really targeting Americans on the Trump campaign requires an investigation that goes beyond bland written filings before the FISA court.

The House and Senate intelligence committees are already investigating Russian efforts to influence the U.S. election. Their staffs are fully cleared, and they can go well beyond the written record. They will already be examining the same events as the Justice Department would have relied on to seek a surveillance order. Their report will hopefully be bipartisan, and it can summarize classified information with fewer charges of bias than anything produced by the Justice Department. Why not just fold this issue into the investigation that’s already ongoing?

As I was editing this for publication, I discovered that the White House had just issued a statement suggesting precisely this course. Sigh. I guess that means no self-respecting member of the media or the Democratic party will support the idea. That’s too bad, because...

8. There’s a serious issue buried in this mess.

I don’t have much doubt that Vladimir Putin tried to mess with the U.S. election. And, while it’s not working out the way Putin hoped, a lot of other countries could well be inspired to try the same thing. There will certainly be more claims of foreign interference with our elections to investigate. We need a way to run those investigations without turning every such one into a partisan brawl. We need safeguards that both parties will trust, in or out of power.

We already have a lot of intelligence oversight mechanisms, but they aren’t well suited to this problem. To ensure accountability in surveillance decisions, FISA adopts a particularly doubtful mechanism. It kicks all decisions about surveillance upstairs, so that they’re made only by political appointees—the very people who probably ought to be recusing themselves from such decisions.

So if we ask the intelligence committees to review the President’s surveillance charges, we also ought to ask them to recommend changes in FISA procedures. They should fashion new rules for future investigations of foreign governments that try to shape our elections.

Because if anything is certain, it’s that we’re going to need those rules—no later than 2020.

Stewart A. Baker is a partner in the Washington office of Steptoe & Johnson LLP. He returned to the firm following 3½ years at the Department of Homeland Security as its first Assistant Secretary for Policy. He earlier served as general counsel of the National Security Agency.

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