TrumpTapgate

University of Tennessee Prof. Glenn Harlan Reynolds:

So President Trump set off a firestorm over the weekend with a series of tweets alleging that Obama had tapped Trump Tower. But getting hung up on imprecise language in the president’s tweets isn’t the right way to look at things. What seems to be at true is that the Obama administration spied on some of Trump’s associates and we don’t know exactly how much information was collected under what authority and who was targeted.

As former prosecutor Andrew McCarthy summarizes in National Review, the Obama Justice Department considered a criminal investigation aimed at a number of Trump’s associates. When they didn’t find anything criminal, they converted the investigation into an intelligence probe under the Foreign Intelligence Surveillance Act. Elements of that story have been confirmed by The New York Times, the BBC and McClatchy newspapers.

FISA surveillance has to be approved by a special court, which almost always allows the government to spy on people when asked. But when the Justice Department asked to spy on several of Trump’s associates, the court refused permission, according to the BBC. As McCarthy writes, this is notable because “the FISA court is notoriously solicitous of government requests to conduct national security surveillance.”

Not taking no for an answer, the Obama administration came back during the final weeks of the election with a narrower request that didn’t specifically mention Trump. That narrower request was granted by the court, but reports from the Guardian and the BBC don’t mention the tapping of phones..

Former Obama officials issued denials that the former president had anything to do with it, which McCarthy calls “disingenuous on several levels.” Others have characterized them as a “non-denial denial.”

First, as Obama officials well know, under the FISA process, it is technically the FISA court that ‘orders’ surveillance. And by statute, it is the Justice department, not the White House, that represents the government in proceedings before the FISA court. So, the issue is not whether Obama or some member of his White House staff “ordered” surveillance of Trump and his associates. The issues are (a) whether the Obama Justice Department sought such surveillance authorization from the FISA court, and (b) whether, if the Justice Department did that, the White House was aware of or complicit in the decision to do so. Personally, given the explosive and controversial nature of the surveillance request we are talking about — an application to wiretap the presidential candidate of the opposition party, and some of his associates, during the heat of the presidential campaign, based on the allegation that the candidate and his associates were acting as Russian agents — it seems to me that there is less than zero chance that could have happened without consultation between the Justice Department and the White House.

And as journalist Mickey Kaus commented on Twitter, there’s a reason why presidents name trusted allies as attorney general. As close as former attorney general Loretta Lynch was to Obama, and as supportive as she was of his political goals, it seems very unlikely that this was some sort of rogue operation.

It’s certainly not impossible to believe that the Obama administration spied on Trump. Obama wouldn’t be the first president to engage in illegal surveillance of opposition candidates, and his administration has been noted for its great enthusiasm for domestic spying. In an effort to plug embarrassing leaks, the Obama administration spied on Associated Press reporters and seized the phone records not only of a Fox News reporter but also of his parents. Obama’s political allies even alleged that his CIA spied on Congress.

Nor is it unbelievable that under the Obama administration, supposedly non-partisan civil servants would go after political opponents. After all, the notorious IRS scandal was about exactly that.

Trump has called for a congressional investigation, but what this really needs is a special prosecutor, someone from outside the politically tainted Justice Department, to look into the political abuse of surveillance laws by the Obama administration. Maybe, upon investigation, it will turn out that nothing improper happened — that this is a lot of smoke, but that there’s no fire. But we can’t know without an investigation, and if there really were political abuses of the Justice Department and the intelligence surveillance process, those guilty should not simply be exposed but go to jail. Such abuse strikes at democracy itself.

Note that FISA surveillance is severely limited and requires information from surveillance to be kept very secret or, if not relevant, deleted. If those limits were exceeded, if Obama officials lied to the court, or if the information was — as it appears to have been — excessively shared within the government, or leaked to outsiders, those are all serious crimes, as First Amendment attorney Robert Barnes notes.

Watergate brought down a presidency, but if the worst suspicions here are borne out, we’re dealing with something worse. Hopefully not, but there’s no way to tell at this point. As The Washington Post has been saying lately, “Democracy dies in darkness.” Let’s shine some light on what the Obama administration was doing during this election.

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