On March 4, Trump issued a series of tweets, stating that Barack Obama had put his office in New York under surveillance
“just before the victory.” Calling Obama “bad (or sick) guy,” Trump went so far as to liken the surveillance to “McCarthyism” and a new “Nixon/Watergate.” For nearly a year, reports have dribbled out from major media that there was surveillance being conducted on the Trump campaign, while there appeared to be little inquiry into whether it was warranted in the search for any Russian influence over the 2016 presidential election.
During the course of the campaign, the Justice Department and FBI did in fact investigate associates of Donald Trump, including Paul Manafort and Roger Stone. Manafort was briefly the director of Trump’s campaign organization, while Stone has long been a friend and advisor.
A former attorney general who served under George W. Bush, Michael Mukasey
, said today that Trump is probably right about the surveillance on Trump Tower. “I think he’s right in that there was surveillance and that it was conducted at the behest of the attorney general — at the Justice Department,” Mukasey told ABC’s “This Week.”
Two secret warrants
Various media reports indicate that before June 2016, Obama’s Department of Justice under Attorney General Loretta Lynch investigated the above advisors and possibly Trump himself out of concerns over possible connections to Russian financial institutions. Initial reports found no evidence of criminal wrongdoing. Indeed, even as late yesterday, Sen. Chris Coons (D) told journalist Chris Matthews that he knew of “no hard evidence” linking the Trump organization to Russian financial institutions.
Apparently not satisfied, the Justice Department resorted to appealing under the Foreign Intelligence Surveillance Act to obtain court permission to for electronic surveillance, including wiretaps and email hacks, against “agents of a foreign power.” FISA applications to the Foreign Intelligence Surveillance Court and the evidence gathered are classified. It was only because information about the investigation was leaked to the press, a felony, that it became public knowledge.
The first request from the Obama administration to the Federal Intelligence Surveillance Court (FISC) was sent immediately after Obama’s attorney general, Loretta Lynch, met with former president Bill Clinton on the tarmac of the Phoenix Sky Harbor International Airport in June 2016. The meeting caused considerable speculation and rumors about the nature of the discussion between Obama's attorney general and the former president. The Justice Department reportedly “named” Trump in the application, but it is not clear whether Trump himself was considered by the Obama administration to be an alleged Russian agent. However, Trump made it clear in his March 4 tweet that he believes that he indeed was a target, writing “President Obama . . . tapp[ed] my phones[,]” thus making it possible that Trump himself was targeted rather than merely being mention in the FISA application.
This first application was denied by the Foreign Intelligence Surveillance Court.
Tarmac Meeting and Hillary Clinton’s tweet
A second request to the Federal Intelligence Surveillance Court request was submitted that October, before the election, apparently to delve further into supposed connections between Trump and Russia. Hillary Clinton issued a tweet on October 31 that said that “computer scientists have uncovered a covert server linking the Trump organization to a Russian-based server.”
Apparently unsatisfied, the Obama administration returned to the FISA court and filed a narrowly defined application that did not name Trump. In October, the court granted the authorization of surveillance on Trump associates. That surveillance may be ongoing. It was the New York Times that identified (basing itself on illegal leaks of classified material) Paul Manafort, Roger Stone, and investor Carter Page. The January report in the New York Times report conceded that the FISA investigation may have nothing to do with Trump, the campaign, or alleged Russian efforts to interfere in the U.S. election by hacking email accounts.
Subsequent to Trump’s furious tweets, Obama’s spokesman Kevin Lewis issued a statement:
“A cardinal rule of the Obama Administration was that no White House official ever interfered with any independent investigation led by the Department of Justice. As part of that practice, neither President Obama nor any White House official ever ordered surveillance on any U.S. citizen. Any suggestion otherwise is simply false.”
There are various issues to be noted in the denial issued in Obama’s name. According to Andrew McCarthy of the National Review, “there is less than zero chance that could have happened without consultation between the Justice Department and the White House.” In addition, despite various media reports to the contrary, FISA national-security investigations are not criminal investigations. They are covert operations to ferret out the activities of foreign powers and their agents, which presidents must personally authorize.
There is nothing wrong, in principle, with a president’s ordering surveillance of a potential foreign agent who may be helping a foreign power threaten the United States. After the enactment of FISA during the Carter administration in 1978, there had been bipartisan agreement that despite the FISA process, the president retains authority under Article II of the Constitution to order surveillance without a court authorization.
However, conducting surveillance without warrants is controversial. When George W. Bush ordered warrantless wiretapping of suspected terrorists in the wake of the 9/11 attacks, he was criticized for endangering constitutional rights.
According to McCarthy, it would not be inappropriate for a president to direct warrantless surveillance against even American targets if the president believed that the targets were agents of foreign powers posing a threat to the US. While he wrote that there is no clear evidence that shows that any surveillance or requests for surveillance against presidential candidate Trump was done outside of the FISA process.
A scandal of Watergate dimension
However, McCarthy warned that it would be a “scandal of Watergate dimension if a presidential administration sought to conduct, or did conduct, national-security surveillance against the presidential candidate of the opposition party.” He goes on to say that “Unless there was some powerful evidence that the candidate was actually acting as an agent of a foreign power, such activity would amount to a pretextual use of national-security power for political purposes. That is the kind of abuse that led to Richard Nixon’s resignation in lieu of impeachment.”
All the while that the Justice Department was seeking to surveil Trump and his associates on the basis of an assertion that were agents of Russia, the very same Justice Department closed its criminal investigation against Hillary Clinton despite evidence of misconduct on her part that threatened national security. McCarthy wrote, “This appears to be extraordinary, politically motivated abuse of presidential power.”
The New York Times quoted White House counsel Donald F. McGahn II today as saying that the White House is now “working to secure access” to “an order issued by the Foreign Intelligence Surveillance Court authorizing some form of surveillance related to Mr. Trump and his associates.” This may mean that the White House wants to review the Obama Justice Department’s FISA applications and orders for surveillance of Trump associates, and perhaps Trump himself, from June and October 2016.
Media praised wiretapping whistle-blower in 2005, 2013
In 2013, whistle-blower Russ Tice, a former intelligence analyst, claimed that the NSA ordered wiretaps on telephones connected to Barack Obama who was running for the US Senate in 2004. Tice was celebrated for also blowing the whistle in 2005 on what he alleged to be massive unconstitutional domestic spying across multiple agencies. He went public with the latter claim in 2005, admitting that he was a source in a New York Times report that revealed the Bush administration's use of warrantless wiretapping of international communications in the U.S. This forced Bush to admit that a small number of Americans had been targeted, even while Tice maintained that the NSA practice was gathering records for millions of Americans. The NSA denied the allegations.