Trump: Obama was tapping my phones; Update: Obama: No, I didn’t
For eight years, Barack Obama blamed George W. Bush for the performance of his own economic policies. Donald Trump has managed to eclipse that by accusing his predecessor of bugging his communications. Earlier today in a series of tweets, Trump lashed out at Obama for his “McCarthyism” and his surveillance of Trump’s communications as part of the probe into Russian interference in the election:
President Donald Trump on Saturday accused his predecessor Barack Obama of “tapping” his phone during last year’s White House campaign, without providing evidence of the explosive charge.
“I’d bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!” Trump wrote on Twitter.
“How low has President Obama gone to tapp (sic) my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!” he wrote in another tweet. …
The businessman-turned-politician, who has accused his political foes of conducting “a total witch hunt” on Saturday directed his Twitter tirade at his Democratic predecessor.
“Terrible! Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!” Trump wrote a day after departing Washington for a weekend getaway at his Mar-a-Lago Florida resort for the fourth time in five weeks.
What’s the purpose of this accusation? The adage the best defense is a good offense goes all the way back to George Washington, in substance if not in form. “[O]ffensive operations, often times, is the surest, if not the only (in some cases) means of defence,” wrote the first president in the conclusion of a letter to John Trumbull not long after leaving office, and not long before he died. A series of leaks have kept the White House on the back foot ever since taking office (or even before that), and Trump may have decided to go on the attack as a means of playing defense. Unless Trump has some substantive evidence for that charge, though, all it does is perpetuate the negative narrative.
But does he? Mark Levin alleged on Thursday that the previous administration of seeking a FISA warrant against Trump and his associates to do exactly what Trump accuses Obama of doing (via RealClearPolitics):
“There’s a much bigger scandal here: We have a prior administration. Barack Obama and his surrogates, who are supporting Hillary Clinton and her party, the Democratic Party. Who were using the… intelligence activities to surveil members of the Trump campaign, and to put that information out in the public. Those are police state tactics. Nothing Flynn or Sessions has done is even in the same category as that,” Levin said.
“The question is: Was Obama surveilling top Trump campaign officials during the election?” he asked.
“We absolutely know this is true, the FBI did a preliminary criminal investigation based on a potential connection between a server in Trump Tower and a couple of Russian banks. That turned out to be a dry hole, but one of the most outrageous things I’ve ever seen… totally uncovered by the media. Instead of closing the investigation, the Obama administration tried to turn it into a FISA court investigation in June . Apparently the first application they submitted named Trump.”
“Even the FISA court said no. There wasn’t enough evidence to make out probable cause involving Donald Trump,” he said. “In the middle of the campaign the administration was actively having Trump investigated.”
This is actually not a new revelation; in fact, the Guardian reported it on January 11th. The Obama administration allegedly did ask the FISA court for permission to surveil Trump and his operation at Trump Tower. Despite an almost unbroken series of approvals for such warrants by FISA courts, that time they refused to grant one. However, that wasn’t the end of the effort:
The Guardian has learned that the FBI applied for a warrant from the foreign intelligence surveillance (Fisa) court over the summer in order to monitor four members of the Trump team suspected of irregular contacts with Russian officials. The Fisa court turned down the application asking FBI counter-intelligence investigators to narrow its focus. According to one report, the FBI was finally granted a warrant in October, but that has not been confirmed, and it is not clear whether any warrant led to a full investigation.
Heat Street reported last November that the FBI did get a FISA warrant on their second try. Just before the election, the White House went back to the FISA court with a warrant that didn’t specifically name Trump — and this time got the warrant:
Two separate 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.
Contrary to earlier reporting in the New York Times, which cited FBI sources as saying that the agency did not believe that the private server in Donald Trump’s Trump Tower which was connected to a Russian bank had any nefarious purpose, the FBI’s counter-intelligence arm, sources say, re-drew an earlier FISA court request around possible financial and banking offenses related to the server. The first request, which, sources say, named Trump, was denied back in June, but the second was drawn more narrowly and was granted in October after evidence was presented of a server, possibly related to the Trump campaign, and its alleged links to two banks; SVB Bank and Russia’s Alfa Bank. While the Times story speaks of metadata, sources suggest that a FISA warrant was granted to look at the full content of emails and other related documents that may concern US persons.
Bear in mind that the FBI’s link to the FISA court would have been on counter-intelligence and not in criminal investigations. Criminal warrants go through normal courts, while FISA warrants deal with intelligence, espionage, and counter-terrorism that normally would not directly produce criminal prosecutions. NRO’s Andrew McCarthy wrote about this almost two months ago, and mentioned it on my show Thursday afternoon as well. McCarthy worries that the Obama administration abused the FISA system to jump-start a criminal probe where no probable cause existed for one:
Again, agents do not ordinarily draw FISA requests around possible crimes. Possible crimes prompt applications for regular criminal wiretaps because the objective is to prosecute any such crimes in court. (It is rare and controversial to use FISA wiretaps in criminal prosecutions.) FISA applications, to the contrary, are drawn around people suspected of being operatives of a (usually hostile) foreign power. …
To summarize, it appears there were no grounds for a criminal investigation of banking violations against Trump. Presumably based on the fact that the bank or banks at issue were Russian, the Justice Department and the FBI decided to continue investigating on national-security grounds. A FISA application in which Trump was “named” was rejected by the FISA court as overbroad, notwithstanding that the FISA court usually looks kindly on government surveillance requests. A second, more narrow application, apparently not naming Trump, may have been granted five months later; the best the media can say about it, however, is that the server on which the application centers is “possibly” related to the Trump campaign’s “alleged” links to two Russian banks — under circumstances in which the FBI has previously found no “nefarious purpose” in some (undescribed) connection between Trump Tower and at least one Russian bank (whose connection to Putin’s regime is not described).
That is tissue-thin indeed. It’s a good example of why investigations properly proceed in secret and are not publicly announced unless and until the government is ready to put its money where its mouth is by charging someone. It’s a good example of why FISA surveillance is done in secret and its results are virtually never publicized — the problem is not just the possibility of tipping off the hostile foreign power; there is also the potential of tainting U.S. persons who may have done nothing wrong. While it’s too early to say for sure, it may also be an example of what I thought would never actually happen: the government pretextually using its national-security authority to continue a criminal investigation after determining it lacked evidence of crimes.
Most of this was known before the inauguration, so why is Trump tweeting about it now? The continuing leaks prompted Levin to revisit it on Thursday, and that Joel Pollak put together a timeline of the issue at Breitbart yesterday. The timeline makes a few of the subsequent leaks about Team Trump look a little more than just coincidental — although they certainly may still be just coincidences. The recent reporting around this from Levin and Pollak would have certainly come to Trump’s attention, and that’s why Trump made the accusations today.
Are they true, however? AFP notes that Trump made the accusation “without providing evidence,” which is tough to do in a tweet, but that doesn’t make them false, either. The circumstantial evidence surrounding the two FISA requests and the warrant granted by the court certainly suggests that some form of surveillance at Trump Tower did take place, although whether those were wiretaps on Trump’s phones has still not been established. It may not end up being true that Trump’s phones were bugged, but the circumstances show that it’s not necessarily just a paranoid fantasy, either.
This should be rather easy to clear up, though. Guess who’s in charge of counter-espionage and the intelligence community these days? Newly installed Director of National Intelligence Dan Coats can perform an investigation into the conduct of the probe and report back to Congress as to whether an outgoing administration tapped the phones of a political candidate for president, and whether or not they found anything that would have given them reasonable cause to do so.
Update: Of course, the FBI works within the Department of Justice, so Jeff Sessions might be a better focus for transparency in this case — or, since he’s recused himself on these issues, acting deputy Attorney General Dana Boente should be able to clear it up. If it’s true, then let’s have it out in the open, along with all the findings of the probe. If not, then Trump owes everyone a retraction.
Update: Sen. Chris Coons’ allegations that the FBI had transcripts of calls that showed collusion between Team Trump and Russia might be what actually prompted the tweet storm. If they weren’t wiretapping Trump’s facilities, how did they get the transcripts? That assumes, of course, that Coons knows what he’s talking about. (Via Garance Franke-Ruta.)
Update: Edited two brief passages for better clarity.
Update: Obama has issued a sharp denial through his spokesman:
Noted, but the FBI did try to get a FISA surveillance warrant on Trump and/or his operation at Trump Tower in the summer, according to multiple reports, and succeeded in getting one in October for people around him according to other reports. Investigators at the FBI may have done that on their own, but they did so in Loretta Lynch’s Department of Justice. One would think that a request to get a counter-espionage warrant that includes surveillance on a major-party presidential candidate or campaign would need some approvals from pretty high up the hierarchy. It seems difficult to believe that the FBI’s attorneys would go to the FISA court for that kind of request just on the say-so of field agents. Possible, but rather unlikely.
Update: Heat Street’s Louise Mensch reported in November (same link as above) that the first FISA application specifically named Trump in the warrant. I’ve changed “apparently” to “allegedly,” though, because that’s the issue at hand in this allegation.