Published by The Lawfare Institute
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President Trump took a brief break from his busy schedule of bungling the federal response to coronavirus and modeling disastrous presidential leadership in a crisis to, once again, make a fool of his attorney general.
At 10:44 a.m. on March 12, with the Dow Jones having shed nearly 2,000 points since the markets had opened, the president tweeted:
Many Republican Senators want me to Veto the FISA Bill until we find out what led to, and happened with, the illegal attempted “coup” of the duly elected President of the United States, and others!— Donald J. Trump (@realDonaldTrump) March 12, 2020
Trump did not mention Attorney General William Barr in issuing this veto threat concerning the bipartisan compromise bill to reauthorize expiring Foreign Intelligence Surveillance Act (FISA) authorities. He didn’t need to. The day before, on behalf of the Trump administration, Barr had issued a statement that described the bill as follows:
I have reviewed the House FISA bill and support its passage. The bill contains an array of new requirements and compliance provisions that will protect against abuse and misuse in the future while ensuring that this critical tool is available when appropriate to protect the safety of the American people.
I am pleased that the bill contains a number of provisions Director Wray and I put forward to address past failures, including compliance failures that the Inspector General has identified for us in his recent audit work. The IG’s analysis and recommendations have helped shape our proposals. The Director and I will promulgate additional, implementing rules that advance these reforms.
It is of the utmost important [sic] that the Department’s attorneys and investigators always work in a manner consistent with the highest professional standards, and this overall package will help ensure the integrity of the FISA process and protect against future abuses going forward. This legislation deserves broad bi-partisan support.
The House had passed the bill with exactly what Barr sought: a broad, bipartisan, 278-to-136 vote. The next morning, with the Senate poised to send it to the president’s desk, Trump publicly slipped a knife between Barr’s ribs, suggesting he might veto the bill his own administration had endorsed.
This isn’t the first time Trump has played this sort of game with a FISA reauthorization. On Jan. 11, 2018, with the so-called 702 program set to expire and the House set to vote on a reauthorization package, Trump tweeted,
“House votes on controversial FISA ACT today.” This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?— Donald J. Trump (@realDonaldTrump) January 11, 2018
He tweeted this at a moment in which the vote was in doubt, the morning after his own administration had issued a Statement of Administration Policy saying, “The Administration supports House passage of the House Amendment to S. 139, the FISA Amendments Reauthorization Act of 2017.”
In 2018, the 702 program was reauthorized after a brief scramble set off by the president’s expression of disapproval. This time around, the result of Trump’s tweet is that the Senate did not take up the bill immediately and the authorities actually lapsed for a time on March 15. Beware the Ides of March, sayeth the soothsayer. Or, as Senate Intelligence Committee Chairman Richard Burr quipped, “I hope we don’t have an attack this weekend.”
The truth is that a short lapse likely will not lead to any disaster. Charlotte Butash and Margaret Taylor have provided an excellent summary of what’s in the bill. For present purposes, what matters is that the bill would reauthorize three authorities—the lone-wolf FISA provision, the roving wiretap provision and the business records provision—while imposing modest new protections on the FISA process generally and ending the already-defunct telephony metadata program. The likelihood that any of the expiring provisions will be essential during their period of lapse is not all that great. Existing orders under these authorities will remain valid; problems will arise only if the government needs to seek new orders. So of all the risks the United States is taking right now as a result of President’s Trump’s leadership, this one is relatively small.
But that said, allowing the provisions to lapse is really dumb. And, as a matter of policy, it’s a total non sequitur. None of these provisions has anything to do with the issues the inspector general found with respect to the Carter Page FISA applications. And those issues with the Page application, in turn, are well short of what the president believes them to be; they were not a coup attempt, and they weren’t an effort to spy on his campaign. The business records provision merely gives the FBI the power to subpoena documents in national security cases with secrecy adequate for counterintelligence matters; how exactly does letting it expire respond to the problems the inspector general identified? Even more unfathomable is the idea that the lone-wolf provision, which Congress passed in response to the case of would-be al-Qaeda terrorist Zacarias Moussaoui after Sept. 11, has anything to do with any of this.
But don’t try to fathom it; there is no rational explanation. It’s a presidential temper tantrum in the midst of a genuine crisis. It has no logic beyond personal narcissism. It’s not about the merits of any provision of FISA or what additional protections may be needed. It’s about nothing more than Trump’s conspiracy theories of his own mistreatment. And if he has to make a fool of his attorney general to bang the drum about those theories, he’s more than happy to do so. He will do it blithely, perhaps not even knowing he is doing it.
Barr said recently that Trump’s tweeting was making it impossible for him to do his job running the Justice Department. The attorney general was speaking in the specific context of presidential comments about ongoing criminal matters, but this situation is a vivid example of his point. Barr had been part of a delicate negotiation to thread a legislative needle on a matter that is institutionally important to the Justice Department and the FBI and politically sensitive for both legitimate and illegitimate reasons. While Barr has been a bad actor on any number of things, including stoking conspiracy theories about spying on the Trump campaign, the department appears to have played an appropriate role here, and the result was a bill that the department—along with a solid bipartisan majority of the House—could live with. The president stopped the bill, at least for now, with a single tweet after the attorney general had endorsed it.
But hey, there were no attacks over the weekend; the Ides of March came and went. So the Senate has next week to pick up the pieces.