If you woke up Saturday morning scratching your head as to what the heck President Donald Trump was talking about when he tweeted that Obama had his “wires tapped” in Trump Tower just before his victory, you are not alone.
So what happened?
The best that we can tell, Trump is referring to a Breitbart article which was published Friday night that makes reference to attempts by U.S. intelligence agencies to obtain a warrant from the Foreign Intelligence Surveillance Court (FISA) to monitor communications involving Donald Trump and several advisers. The interesting thing is that this isn’t a new development. In fact, several outlets including Mother Jones, The Guardian, The National Review, and Heat Street have been reporting on this alleged activity over the last couple of months.
Here is the best summary we could find of the Obama administration’s efforts to wiretap Trump associates. From a January 11, 2017 Guardian article :
The Guardian has learned that the FBI applied for a warrant from the foreign intelligence surveillance (Fisa) court over the summer in order to monitor four members of the Trump team suspected of irregular contacts with Russian officials. The Fisa court turned down the application asking FBI counter-intelligence investigators to narrow its focus. According to one report , the FBI was finally granted a warrant in October, but that has not been confirmed, and it is not clear whether any warrant led to a full investigation
Trump then questions in a Tweet on Saturday morning if this is legal and even makes analogies to Nixon/Watergate.
So is it legal?
While the analogies to Watergate are totally misplaced (as that involved an illegal break-in), the underlying questions about the legality of these wiretaps are indeed important ones. So far, there is no indication that the Obama administration acted “illegally” if they did indeed intercept communications from Trump Tower.
“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,” wrote George Washington Law Professor Jonathan Turley.
The FISA procedures were put in place in the aftermath of the Nixon-era scandals. To obtain a FISA warrant, the government needs to demonstrate probable cause that the “target of the surveillance is a foreign power or agent of a foreign power.” On top of that, the agents must prove that the main purpose of the surveillance is to obtain “foreign intelligence information.”
“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,” Turley explained.
So bottom line: if the Obama administration intelligence agents followed the proper protocols, had evidence, got approved by Main Justice, and presented their application to a FISA judge, and were approved, it is likely that any wiretapping was legal under U.S. law.
“Well, putting aside there is no indication Trump himself was the target of the FISA warrant (it appears to have been aimed at four of his associates), yes, it CAN be legally done,” Bradley Moss, an attorney and national security expert explained to LawNewz.com.
Would President Obama have to sign off on this FISA warrant as Trump implies?
No, not necessarily. Under the law, the warrant application needs to be signed off by the Attorney General. So based on the timing of these applications if the reports are true, it is likely that Loretta Lynch knew about them and approved them.
“The President can technically request the warrant but it still has to go through the process. Obama couldn’t authorize it on his own. The AG still has to sign off and the FISA judge still has to authorize the warrant,” Moss explained.
Trump is right that if the warrant involved four of his aides, some of his communications may have been intercepted too, and perhaps what happened warrants further investigation.
“If somehow several people in DOJ all got together and were asked to fabricate evidence to present to the FISA judge that would be illegal,” Moss explained. “But so far that is not what we are hearing happened.”
Turley further adds, “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.”
This matter is probably deserving of further investigation, but so far, there is no indication of anything illegal.