First, as Obama officials well know, under the FISA process, it is technically the FISA court that “orders” surveillance. And by statute, it is the Justice Department, not the White House, that represents the government in proceedings before the FISA court. So, the issue is not whether Obama or some member of his White House staff “ordered” surveillance of Trump and his associates. The issues are (a) whether the Obama Justice Department sought such surveillance authorization from the FISA court, and (b) whether, if the Justice Department did that, the White House was aware of or complicit in the decision to do so. Personally, given the explosive and controversial nature of the surveillance request we are talking about – an application to wiretap the presidential candidate of the opposition party, and some of his associates, during the heat of the presidential campaign, based on the allegation that the candidate and his associates were acting as Russian agents – it seems to me that there is less than zero chance that could have happened without consultation between the Justice Department and the White House.
Second, the business about never ordering surveillance against American citizens is nonsense. Obama had American citizens killed in drone operations. Obviously, that was not done in the U.S. or through the FISA process; it was done overseas, under the president’s commander-in-chief and statutory authority during wartime. But the notion that Obama would never have an American subject to surveillance is absurd.
Third, that brings us to a related point: FISA national-security investigations are not like criminal investigations. They are more like covert intelligence operations – which presidents personally sign off on. The intention is not to build a criminal case; it is to gather information about what foreign powers are up, particularly on U.S. soil. One of the points in FISA proceedings’ being classified is that they remain secret – the idea is not to prejudice an American citizen with publication of the fact that he has been subjected to surveillance even though he is not alleged to have engaged in criminal wrongdoing.