Thus opens a new can of worms. Assuming there is an order, does this amount to White House interference with an ongoing DOJ investigation?
But a senior White House official said that Donald F. McGahn II, the president’s chief counsel, was working to secure access to what Mr. McGahn believed to be an order issued by the Foreign Intelligence Surveillance Court authorizing some form of surveillance related to Mr. Trump and his associates.
The official offered no evidence to support the notion that such an order exists. It would be a highly unusual breach of the Justice Department’s traditional independence on law enforcement matters for the White House to order it to turn over such an investigative document.
Any request for information from a top White House official about a continuing investigation would be a stunning departure from protocols intended to insulate the F.B.I. from political pressure.
Another question: How does this square with the White House’s new position that Congress should investigate wiretapping as part of its Russia probe and that it’ll have no further comment on the matter? Does that mean McGahn is giving up his search for the order, or does it mean he discovered that there is no order and this is his and Trump’s way of punting?
Also, why are Trump and McGahn only concerned about this now, when reports of a FISA order targeting Trump’s associates have been floating around for months? The Heat Street story alleging that an order had been obtained by the FBI last October was published on November 7, the day before the election. The Guardian and BBC stories corroborating that were published in January. The fact that McGahn is only now springing into action — and that the White House is leaking that fact to the Times — reeks of political damage control, something being done not because of sincere alarm over the FISA order, in which case McGahn would have acted already long ago, but because the Trump White House is suddenly scrambling for evidence to boost the boss’s credibility after yesterday morning’s tweets.
In fact, Benjamin Wittes argues that, thanks to Trump, McGahn should no longer need to go looking for anything. Arguably, Trump’s tweets yesterday had the effect of declassifying any FISA order directed at his associates. That being so, the FBI should feel free to produce the order itself and to comment on it. Wittes framed his point as questions to Trump:
To the extent any wiretap you revealed yesterday was previously classified, your tweets have declassified the fact of its existence. Do you agree that the FBI, DOJ, and the FISA Court are now at liberty to confirm the existence of any FISA surveillance that may have been taking place at Trump Tower or against its occupants?…
You say that there was “Nothing found” in the wiretapping of Trump Tower. Are you thereby declassifying the fruits of any surveillance that may have taken place? Will you?…
To whatever extent you have revealed FISA surveillance in a series of tweets, with which agencies, if any, did you consult before declassifying presumably sensitive material about a foreign counterintelligence investigation that is by most accounts still ongoing?
Does Trump really want another high-profile Comey press conference, this time laying out precisely why the FBI was suspicious of, say, Paul Manafort’s communications with Russia? How do you suppose that would play politically for the White House?
Relatedly, I recommend this meticulous Julian Sanchez post from yesterday sifting through Trump’s tweets and comparing them with what the public record on the alleged FISA order does — and doesn’t — support. It’s true, notes Sanchez, that several outlets have reported that a FISA order exists. But no one’s asserted that the order involved wiretapping phones. No one’s claimed the order was illegally obtained. No one’s alleged that the Obama White House intervened and demanded that the FBI seek the order. And no one’s reported that “the campaign” writ large was targeted, merely a few specific people connected to it. The closest anyone’s come to claiming that Trump himself was targeted was the Heat Street piece, which noted that Trump had been “named” in the initial FISA application that was rejected last June. But “named” can mean a lot of things. It doesn’t mean he was a target of the order. Sanchez:
It’s worth noting here that, contra Trump’s claim on Twitter, none of the articles in question claim that phones were tapped. Indeed, it’s not even entirely clear that the order the FISC finally issued in October was a full-blown electronic surveillance warrant requiring a probable cause showing. If the FBI was primarily interested in obtaining financial transaction records, corporate documents, and (depending on both the facts and the FISC’s interpretation of the FISA statute) perhaps even some stored e-mail communications, that information might well have been obtainable pursuant to a §215 “business records” order, which imposes only the much weaker requirement that the records sought be “relevant to an authorized investigation.” The BBC’s use of the word “intercept” to describe the investigators’ aim, as well as Mensch’s characterization of the order as a “warrant,” both suggest full-blown electronic surveillance, but reporters aren’t always particularly meticulous about their use of legal terms of art, and similarly, sources with indirect knowledge of an investigation may not be scrupulously exact about the distinction between an “order” and a “warrant.”
The alleged target of the October FISA order was a Trump server that had been interacting with a Russian bank. There appears to have been nothing suspicious about that in hindsight, but it may be that the feds were investigating Manafort and a few others for other contacts with Russia and wanted to know if the server was involved in that. If so, that’s a long way from Obama tapping Trump’s phones for political reasons. A New York Times story on January 19th did report that the feds had obtained “wiretapped communications” apparently involving Manafort, Carter Page, and Roger Stone, but it’s unclear if those wiretaps have any connection to Trump Tower, Trump himself, or the FISA order issued in October. There may have been an entirely different order granted targeting Manafort et al. in other locations.
Jazz noted in his post earlier that James Clapper denies that any FISA order was issued against Trump or against “anything at Trump Tower,” although Clapper’s lied often enough over the last few years that you’re forgiven for not trusting a word he says. Here’s another denial, though, from someone who might be in a position to know as well — Marco Rubio, a member of the Senate Intelligence Committee that’s been investigating Russian interference in the campaign. The Committee’s been briefed by Comey several times as well as by other intelligence officials. You would think, at some point, the subject would have come up whether the Bureau has amassed its evidence by targeting the president’s confidantes with wiretaps in the building in which he lived and worked. Rubio, though, claims not to know what Trump was talking about in yesterday’s tweets. Hmmm.