David Kris was assistant attorney general for national security from 2009 to 2011. He served as a national security adviser to the Clinton campaign in 2016.
The president’s wiretap tweetstorm on Saturday produced the expected reactions, some of them inaccurate. Here are three points about the legal questions in play and three broader questions about what is really going on.
First, the U.S. government needs probable cause, signatures from government officials and advance approval from a federal court before engaging in wiretapping in the United States. There are some narrow exceptions, for things such as short-term emergencies, which are then reviewed by a judge promptly after the fact. This is not something that the president simply orders.
Under the law governing foreign intelligence wiretaps, the government has to show probable cause that a “facility” is being used or about to be used by a “foreign power” — e.g., a foreign government or an international terrorist group — or by an “agent of a foreign power.” A facility is something like a telephone number or an email address.
A U.S. citizen or permanent resident alien can’t be an agent of a foreign power unless he or she, for example, “knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States.” There are other ways that Americans can be agents of a foreign power, but all of them require criminal conduct. For a visiting foreigner such as the Russian ambassador, the standards are different: He can be an agent of a foreign power simply because he is acting as the officer of a foreign government.
Second, there is no requirement that the facility being wiretapped be owned, leased or listed in the name of the person who is committing the offense or is the agent of a foreign power. In other words, a wiretap of Trump Tower does not require probable cause that President Trump was committing a crime. If I am a spy, and I use a phone in some building to call my handler at the Russian Embassy, then the government can wiretap that phone even though its owner may be entirely innocent and unaware of my clandestine intelligence activities.
Third, government officials, including the president, don’t normally speak publicly about wiretaps. Indeed, it is in some cases a federal crime to disclose a wiretap without authorization, including not only the information obtained from the wiretap, but also the mere existence of a wiretap with an intent to obstruct it. With respect to intelligence wiretaps, there is an additional issue: They are always classified, and disclosure of classified information is also generally a crime. The president enjoys authority over classified information, of course, but at a minimum it would be highly irregular to disclose an intelligence wiretap via Twitter.
Beyond those three legal points, what is really going on here? As usual, Trump’s motives are hard to discern. Maybe he was trying to seize a news cycle and shift attention away from Attorney General Jeff Sessions’s recusal from any investigation into Russian attempts to influence the election and related issues. Maybe Trump concluded that a congressional investigation into his Russia connections is inevitable and wanted to enlarge its scope to address something, anything, about the Obama administration. I have even heard the theory that he wanted to promote the investigation to give his team an excuse to defer public comment pending its outcome, although that is certainly not his M.O. so far. Maybe he was just venting.
Whatever his motives, the effects of the president’s tweetstorm are coming into focus. First, he has increased congressional, media and public demand for information. It seems more likely than ever that there will be some form of independent investigation into the Russia connection, even if it also embraces the question of whether President Barack Obama ordered a tap on Trump Tower (which should not take long to resolve).
Second, Trump also may be understood by the Justice Department and the FBI as signaling a policy shift toward disclosure rather than secrecy in ongoing investigations. This is not unprecedented, and perhaps FBI Director James B. Comey will take him at his tweet and provide the desired information, at least to Congress, whether it involves wiretaps of Trump Tower or other wiretaps and investigative measures.
Third, Trump is spending at a terrific rate the accumulated credibility capital of the office he occupies. There may come a day when he needs to speak seriously, and to be taken seriously, at home or abroad. On his present course and speed, that will be a hard day. If this were “House of Cards,” it would all be very entertaining. As it is, existing institutions, both domestic and international, are going to have to adapt to this new feature of our world.
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