On Saturday morning, President Trump tweeted about some wiretaps. Here’s the actual wording from three of his messages:
Terrible! Just found out that Obama had my “wires tapped” in Trump Tower just before the victory. Nothing found. This is McCarthyism! Is it legal for a sitting President to be “wire tapping” a race for president prior to an election? Turned down by court earlier. A NEW LOW! How low has President Obama gone to tapp my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!
I find this fascinating for several reasons:
First, the court that Trump is referring to is the secretive “Foreign Intelligence Surveillance Court”, aka the “FISA” court. This court was created back in the 70’s, but it was relatively obscure until 2013 when Edward Snowden released one of its bombshell orders authorizing the NSA to monitor all phone calls in United States, even domestic calls between American citizens. It might seem strange that making a court order public would be so controversial, but that’s one of the special powers FISA has: everything it does is classified and closed to the public, including its hearings and proceedings. More on this below.
Secondly, it’s surprising that Trump “just found out”, because it’s not as if these wiretaps are, err, new news. A website called Heat Street broke this story back in early November, reporting that “two sources with links to the counter-intelligence community have confirmed to Heat Street that the FBI sought and was granted, a FISA court warrant in October, giving counter-intelligence permission to examine the activities of “U.S. persons” in Donald Trump’s campaign with ties to Russia”. The Guardian website also reported on this back in January. Assuming that these wiretaps were actually implemented by the FBI — which, technically, is not where Obama worked — it’s fair to assume that any conversation between Trump’s family and/or campaign staff with Russian government officials has been intercepted, and those conversations have been documented. And there’s no shortage of people who could be involved: recently-resigned National Security Advisor General Flynn, Attorney General Jeff Sessions, former campaign manager Paul Manafort, foreign-policy advisor Carter Page, White House aide Jared Kushner … all have had meetings with Kremlin representatives, and everything they said could be in a PDF somewhere.
Regarding Trump’s “turned down by court earlier” comment, the Heat Street website clarifies that. Specifically, the FBI had requested a FISA warrant back in June of 2016 to investigate the weird Internet communications between a computer in Trump’s offices and a Russian bank (reported by the New York Times). According to the Heat Street’s sources, the original warrant request was denied in June, but the FBI came back in October with more evidence and a slightly narrower request, and that warrant was granted.
Finally, here’s the really interesting bit: remember how FISA court proceedings are confidential? Turns out, the courts have previously ruled that President has authority to declassify pretty much anything that’s not explicitly exempt from declassification (e.g., the Atomic Energy Act codifies some nuclear secrets that cannot be undone without Congress). So I have to wonder: now that the Trump has confirmed via a Tweet that the FISA warrant was issued, has he accidentally declassified it? Because if he has, it would mean that the warrant and its request would then be subject to a Freedom of Information Act request, as might be anything *obtained* from that wiretap.
Of course, just because there’s an investigation doesn’t mean that anything illegal actually occurred. On the other hand, General Flynn did resign after learning that a transcript of his conversation with Ambassador Vislyak existed. Maybe not because of what it contained, but still. So it could all turn out to be nothing. Or it could be the sound of an onion peeling.
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