Since last Saturday morning, when President Trump alleged on Twitter that his predecessor, Barack Obama, had illegally “tapped” his phone at Trump Tower, there has been an unusual amount of attention paid to the Foreign Intelligence Surveillance Act, or FISA. I have already written here about how FISA warrants work in practice based on my experience as a former FBI counterintelligence agent. But national security junkies, conservative pundits, and Trump’s Twitter followers are still indulging in theories about how Obama could have personally targeted the Republican presidential nominee for warrantless surveillance. I decided to put on my tinfoil hat and take a close look at each one of these possibilities.
Let’s start with the “emergency FISA” theory. Some of the new amateur FISA experts online have been posting 50 U.S.C. Section 1802, the so-called “emergency FISA” option buried in the long and convoluted FISA statute. The first line of this section states that “the President, through the Attorney General, may authorize electronic surveillance without a court order.” Sounds like a smoking gun, right? Not so fast. Remember that when FISA was passed in 1978, Congress was reacting to Richard Nixon’s gross abuse of presidential power in Watergate, as well as to revelations of widespread warrantless domestic spying on American citizens by the FBI and CIA. Congress didn’t want to tie the President’s hands completely in case he needed to respond quickly to a major threat (which, incidentally, would have been the Russians), but it also knew all too well the consequences of an executive branch run amok.
So Congress followed up with some fine print. First, any order by the President to conduct emergency surveillance without a warrant can only be used to intercept “communications exclusively between or among foreign powers,” not U.S. persons like then candidate Trump. Further, the Attorney General must certify under oath that the surveillance is necessary; transmit that certification to the FISA court under seal after consulting with the Director of National Intelligence; and report to both the House and Senate Intelligence Committees that the surveillance took place. Congressional Republicans would love to be able to back up Trump’s accusation, rather than try awkwardly to evade questions about it. The fact that they are apparently as clueless as everyone else means we can safely dismiss the emergency FISA theory.
Okay, you might think. So the law wouldn’t have let Obama order a warrantless search. But who says he followed the law? According to this theory, Obama presumably called his minion, FBI Director Jim Comey—the same guy who refused to authorize warrantless wiretapping after 9/11, and whose revelation about Hillary Clinton emails found on a computer in October may have cost her the election—and told him, “To hell with FISA, just get it done.” The problem here is that our wire communication providers, like Google and Verizon, are privately owned and operated. That means the government has to get the cooperation of these companies to spy on any individual inside the country. (Federal law does let the government order ISP and telecom providers to conduct “programmatic” surveillance on non-U.S. persons located abroad, but that’s very different.) Cut to the scene where Comey tries ordering a telecom CEO, on behalf of the President of the United States, to commence surveillance on a presidential nominee. Here’s where the bored-looking CEO props his feet on his desk and says the five words every law enforcement officer hates to hear: “Do you have a warrant?”
“The President can’t just send the Attorney General over to pick up a FISA warrant like it’s a Starbucks latte.”It’s not that corporate executives are passionate about Fourth Amendment rights. It’s that insisting on a warrant saves them the two things they care most about: time and money. For one thing, a private company has neither the authority or expertise to figure out which investigations have a legitimate basis and which ones don’t—it’s much easier to let courts make that decision for them. More importantly, they could face major civil liability if any of their users find out that they handed private information over to the government wholesale. And if that user happens to be a litigious billionaire who tends to get irate on Twitter, well, you can see why even a Biblical-sounding command from the President might not seem so impressive.
We finally get to the claim most popular among not just Trump supporters on Twitter, but also some journalists who should know better. I call this the “fake FISA” theory. In this version of events, Obama did get a FISA warrant to tap Trump’s phone—he just did it with phony evidence. Here’s Andrew C. McCarthy, writing in the National Review:
Nevertheless, whether done inside or outside the FISA process, it would be a scandal of Watergate dimension if a presidential administration sought to conduct, or did conduct, national-security surveillance against the presidential candidate of the opposition party. Unless there was some powerful evidence that the candidate was actually acting as an agent of a foreign power, such activity would amount to a pretextual use of national-security power for political purposes. That is the kind of abuse that led to Richard Nixon’s resignation in lieu of impeachment.
Moreover, it cannot be glossed over that, at the very time it appears the Obama Justice Department was seeking to surveil Trump and/or his associates on the pretext that they were Russian agents, the Obama Justice Department was also actively undermining and ultimately closing without charges the criminal investigation of Hillary Clinton despite significant evidence of felony misconduct that threatened national security.
This appears to be extraordinary, politically motivated abuse of presidential power.
The key word there is “pretext.” According to McCarthy, Obama got a FISA judge to sign off on a warrant despite not having evidence of any real connection to Russia. The problem with that theory is that it would require an absolutely enormous conspiracy. The President can’t just send the Attorney General over to pick up a FISA warrant like it’s a Starbucks latte. Obama would have had to convince a dozen or more FBI investigators and DOJ lawyers to go through the motions of creating a phantom investigation and fabricate evidence supporting a FISA application. Since the application would be based on sworn affidavits, each member of the conspiracy—up to and including the highest echelons of the Justice Department and possibly Obama himself—would have to commit perjury. Meanwhile, they would have to count on the federal judge sitting on the FISA court to accept the flimsy evidence supporting the warrant, not ask too many questions, and sign off on it. Then everyone would have to pray none of their co-conspirators reveal the whole thing to the press. While I’ll admit that this theory has a sexy, Enemy of the State appeal to it, our actual government is (un)fortunately too clunky, leaky, and bureaucratic to pull it off.
I hesitate to claim that anything is impossible in a reality where the bounds of possibility are tested almost daily. But in a world of probabilities, none of the above theories hold water. In fact, there are two more likely scenarios. One is that there was a legal warrant targeting the Russians, not President Trump, on a compromised communications device or facility located in Trump Towers. If this is true, then the promised congressional investigation may be a Pyrrhic victory for the anti-Trump camp, since it could also expose our attempts to thwart foreign intelligence activity and give the Russians a handy insight into our methods and sources. The other is that there was never any surveillance to begin with. As Shakespeare wrote, “Nothing will come of nothing.” Let’s hope that in this case that’s true.