Trump: I think Susan Rice may have committed a crime

He made a big, bold, eye-grabbing claim on March 4th when he accused Obama of wiretapping him at Trump Tower, only to have Comey debunk that on national television. Now he’s making a big, bold, eye-grabbing claim about Susan Rice’s criminal liability in allegedly having requested the “unmasking” of Trump staffers in surveillance reports, even though no one else in a position to know has claimed she acted illegally. Devin Nunes, the Republican who uncovered the reports revealing Team Obama’s “unmasking” practices (with White House help), specifically said that the surveillance that included Trump staffers incidentally appears to have been conducted legally. And unless I missed it, Nunes hasn’t named Rice as an “unmasker.” Those reports naming her come from anonymous sources.

It’d be next to impossible to prove that Rice tried to unmask anyone illegally since it would have been up to some U.S. intel agency like the NSA and FBI to grant or deny her request. (Presumably they’d have some record of her making a request that ended up being denied, but how hard would it be for Rice to cook up an explanation that the request was made for valid intelligence, rather than political, reasons?) It’d be much easier to prove Rice was guilty of a crime if you could show that she leaked an unmasked report, but that’s another charge that no one has credibly leveled at her as far as I’m aware of. If Rice was unmasking people last year and leaking, why didn’t those surveillance reports turn up in the media during the campaign?

“I think it’s going to be the biggest story,” Mr. Trump said in an interview in the Oval Office. “It’s such an important story for our country and the world. It is one of the big stories of our time.”

He declined to say if he had personally reviewed new intelligence to bolster his claim but pledged to explain himself “at the right time.”

When asked if Ms. Rice, who has denied leaking the names of Trump associates under surveillance by United States intelligence agencies, had committed a crime, the president said, “Do I think? Yes, I think.”

He later told Fox News he thought Rice “may have” committed a crime, in case you find that distinction relevant. Someone on Twitter today floated a provocative idea: If Rice was telling the truth yesterday when she said she’d never leaked, and if it’s true that any “unmasking” attempts were done legally, what’s to stop her from suing Trump for defamation here? Normally the chief deterrent to a defamation suit would be not wanting to lend extra publicity to a falsehood, but when the president is accusing you of a crime in an interview with the New York Times, you’re already pegging the publicity meter. Even if the suit is delayed or ends up being thrown out because it’s hard to defame a public figure (even if the defamer is the most public figure in the world), it’d be an interesting political gambit. Rice would need to show that Trump accused her of a crime with reckless disregard for whether that’s true or false; courts wouldn’t like the idea of the president being sued for a careless utterance, especially if the discovery process would implicate national security, but courts also don’t seem to like Trump much. Letting the suit proceed might get him to be a bit more circumspect in which misdeeds he accuses members of the former administration of having committed.

But all of that assumes that she’s innocent. Here’s an interesting passage from last night’s WSJ:

A Republican official familiar with deliberations by GOP lawmakers on the House Intelligence Committee said that the names of two U.S. citizens who were part of Mr. Trump’s transition team have been unmasked in intelligence reports.

One is Mr. Flynn and the other hasn’t been identified, said the official. The report involving Mr. Flynn documented phone conversations he had in late December with the Russian ambassador to the U.S.

The official said Ms. Rice had requested the unmasking of at least one transition official—not Mr. Flynn—who was part of multiple foreign conversations that weren’t related to Russia.

So it wasn’t Rice who tried to unmask Flynn; there was a second official who unmasked him. And she did successfully unmask another Trump transitional official, although it wasn’t related to Russia. Huh. Two things about that, though. One: If the second Trump transition team member hasn’t been identified publicly, then obviously Rice (and anyone else who saw the report) hasn’t leaked it. No crime there. Two: Flynn’s conversations with Kislyak would seem like a textbook case of justifiable legal unmasking, given that there was obviously foreign intelligence value in knowing if Russia was about to shift any part of its foreign policy in response to promises made by the incoming administration. Knowing whom Kislyak was talking to would have been important in gauging how credible any hints of lifting sanctions might be. Leaking Flynn’s name and his conversation with Kislyak was clearly a crime, but the mere fact of unmasking him for in-house intelligence purposes seems like hard terrain in which to plant a criminal case. But then, that’s not really the point of the WSJ story. The point is, if it’s true, we now have multiple Obama officials trying to unmask multiple Trump transition members. How widespread was that practice?

Oh, elsewhere in the Times interview, Trump vouched for Bill O’Reilly as a “good person” and said of the multiple settled sexual harassment lawsuits against him, “I think he shouldn’t have settled; personally I think he shouldn’t have settled. Because you should have taken it all the way. I don’t think Bill did anything wrong.” That’s definitely a fight that Trump should want to have right now given his “Access Hollywood” history and the growing backlash to O’Reilly in the midst of trying to get health-care restarted, dealing with the Syria WMD attack, and trying to jumpstart tax reform and infrastructure spending. Way to pick ’em.