TRUMP CAN ORDER WIRETAP PROBE
President doesn’t need Congress to answer question
IF Donald Trump wants to know whether he was the subject of surveillance by the United States government, he may be uniquely positioned to get an answer.
In a series of weekend tweets, the president accused his predecessor, Barack Obama, of ordering wiretaps on his phones but offered no proof to back the claim. The White House then called on Congress to investigate the allegations.
But former government lawyers say Trump hardly needs Congress to answer this question.
“The intelligence community works for the president, so if a president wanted to know whether surveillance had been conducted on a particular target, all he’d have to do is ask,” said Todd Hinnen, head of the Justice Department’s National Security Division during the Obama administration and a National Security Council staff member under George W. Bush.
The latest storm began on Saturday when Trump tweeted: “Is it legal for a sitting president to be ‘wire tapping’ a race for president prior to an election? Turned down by court earlier. A NEW LOW!”
He followed up with: “How low has president Obama gone to tap my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”
The Justice Department, not the president, would have the authority to conduct such surveillance, and officials have not confirmed any such action.
Through a spokesman, Obama said neither he nor any White House official had ever ordered surveillance on any American citizen.
Obama’s top intelligence official, James Clapper, also said Trump’s claims were false, and a US official said the FBI asked the Justice Department to rebut Trump’s assertions.
Why turn to Congress, Trump spokesman Sean Spicer was asked on Monday.
“My understanding is that the president directing the Department of Justice to do something with respect to an investigation that may or may not occur with evidence may be seen as trying to interfere,” Spicer said.
“And I think that we’re trying to do this in the proper way.”
Senator John McCain, chairman of the Armed Services Committee, said on Monday that Trump needed to give more information to the American people and Congress about his wiretapping accusations.
“The dimensions of this are huge,” McCain said.
“It’s accusing a former president of the United States of violating the law. That’s never happened before.”
As for the genesis of a possible wiretap, it is possible the president was referring to the Foreign Intelligence Surveillance Act, a 1978 law that permits investigators, with a warrant, to collect the communications of someone they suspect of being an agent of a foreign power.
That can include foreign ambassadors or other foreign officials who operate in the US whose communications are monitored as a matter of routine for counterintelligence purposes.
The warrant application process is done in secret in a classified process. But, as president, Trump has the authority to declassify anything. And were such a warrant existed, he could move to make it public as well.
If the president demands to know what happened, “the Justice Department can decide what’s appropriate to share and what’s not”, said Amy Jeffress, another former Obama administration national security lawyer.
The Justice Department applies for the warrants in a onesided process before judges of the secretive Foreign Intelligence Surveillance Court.
Permission is granted if a judge agrees that there’s probable cause that the target is an agent of a foreign power.
Trump also could have been referring to wiretapping authorised under the Omnibus Crime Control and Safe Streets Act of 1968.
The Justice Department can obtain a warrant for that surveillance by convincing a judge that there’s probable cause to believe the target has committed or is committing a crime.
The White House turned on Sunday to Congress — which is already investigating ties between Trump associates and Russians — for help finding evidence to support his assertions.
For Congress, getting to the bottom of this should not be difficult, said Dan Jones, a former Senate investigator and president of the Penn Quarter Research and Investigations Group.
“It’s a knowable, ‘yes or no’,” Jones said.
If the answer is there was no such warrant, he said, the next step would be to ask the president why he made the claim. “That information would then be investigated to find out if it’s right or wrong.”
It’s accusing a former president of the United States of violating the law. That’s never happened before.
SENATOR JOHN MCCAIN Armed Services Committee chairman