Trump’s End Game In The Obama Wiretapping Lie

This all started because Trump can’t rid himself of the stink of Russian interference.
03/07/2017 08:58 pm ET Updated Mar 08, 2017
Jonathan Ernst / Reuters

Donald Trump’s Twitter tantrum accusing President Obama of wiretapping him is so strange that it needs to be unpacked. Why is Trump peddling this line of BS, and what is his end game?

It’s not terribly complicated. In terms of the underlying facts, there are only four possibilities, and three of them look like complete non-starters.

Based on how Trump has conducted himself in the past, his motives and planned end game are not much in doubt either.

Possibility 1: The Title III Wiretap Act

Government authorities can legally intercept telephone calls and other electronic communications under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the so-called “Wiretap Act.” Although the Wiretap Act generally prohibits wiretapping, it includes an exception allowing state and federal authorities to intercept communications in certain criminal investigations.

This doesn’t mean that government authorities can just go out there and wiretap anybody they want. A wiretap is a “search and seizure,” and is therefore subject to the Fourth Amendment’s prohibition against “unreasonable searches and seizures.”

The Fourth Amendment provides that a search warrant can be issued only upon a showing of “probable cause,” supported by an oath or affirmation. That means that the U.S. Constitution requires that a government authority seeking a search warrant must go to a court, armed with evidence of probable cause, and convince a judge to issue the warrant.

The Wiretap Act has built-in Fourth Amendment protections. It requires a “full and complete statement of the facts and circumstances” of the suspected criminal activity, as well as a detailed description of the nature and location of the place to be wiretapped, the type of communications to be intercepted, and the persons suspected of participating in those communications.

If the Wiretap Act had been used by the Obama administration to spy on Trump, there would be no guessing game. The Department of Justice, under the leadership of the Attorney General, would have been the party obtaining and acting upon the warrant. There would be a clear written record of seeking and obtaining the court order, and the Justice Department and the FBI would know about it.

The absence of any support for Trump’s statement by his own Department of Justice, and the flat-out denial of the truth of the statement by the Director of the FBI, can be taken as near conclusive proof that whatever Trump thinks he’s talking about, it’s not something that was done under the Title III Wiretap Act.

But suppose, for the sake of argument, that there was a Title III wiretap against Trump. Maybe we just don’t know about it yet.

That would be even worse for Trump than getting caught in another lie.

It would mean that a U.S. Attorney, upon a detailed showing of probable cause of criminal activity, convinced a federal court judge to issue a wiretap warrant against Trump.

A showing of probable cause that Trump engaged in criminal activity would most likely throw Trump out of the frying pan of being caught lying and into the fire of impeachment.

Possibility 2: A FISA Warrant

A law called The Foreign Intelligence Surveillance Act of 1978 (“FISA”) authorized federal law enforcement agencies to obtain warrants for electronic surveillance of a “foreign power or an agent of a foreign power” suspected of spying for a foreign government. An agent of a foreign power could include an American citizen.

The Act created a special court, called a FISA Court, to determine whether a warrant would be granted in any specific case. If a government agency wants permission to wiretap a foreign agent, it must convince one of the eleven judges on the FISA court to issue a warrant.

The public, of course, doesn’t know if a wiretapping warrant has been sought or obtained in any given case. For obvious reasons of national security, the FISA court operates in secret.

But senior security and law enforcement officials would know, and do know, whether their agencies have sought or obtained a FISA warrant against any specific individual. And it goes without saying that the Director of National Intelligence and the Director of the FBI would know if a FISA warrant had been obtained to wiretap a candidate for President of the United States.

Here, we know with something approaching absolute certainty that the Obama administration did not obtain a FISA warrant to wiretap Donald Trump or his campaign associates. We know this because both Obama’s Director of National Intelligence, James Clapper, and the Director of the FBI, James Comey, have unequivocally denied the existence of any such warrant. And they would know.

So don’t put your money on any of the investigations revealing that the Obama administration obtained a FISA warrant to wiretap Trump.

Possibility 3: Obama Really Did It

OK, now we get down to what Trump really accused Obama of doing. In order to believe Trump, we would have to believe that Obama set up a clandestine Watergate-type plumbers unit to illegally bug Trump Tower.

Obama, of course, has flatly denied this through a spokesperson. And there is absolutely no evidence supporting such an accusation. Most importantly, it would be completely out of character for this decent, cautious constitutional scholar to commit a stupid and reckless criminal act that could not only ruin his entire legacy, but also send him from the White House to the Big House.

Folks, don’t back this horse.

Possibility 4: Trump is Lying

‘Nuff said.

Take this one to the bank.

The End Game: The Aiken

If there’s one thing we don’t have to guess about, it’s how the end game is going to play out.

It couldn’t be more straightforward: Trump pulled a Pee-wee, executed by a Whopper, which morphed into a Kellyanne, and will end in an Aiken.

Uh, maybe I better explain.

This all started because Trump can’t rid himself of the stink of Russian interference in the 2016 election.

The entire U.S. intelligence community has made it clear that the Russians did, in fact, interfere with the election, and that they did so with the specific purpose of helping Trump. These conclusions, by themselves, don’t necessarily implicate Trump in Russia’s criminal activity. But there are enough signs pointing in that direction to raise suspicion.

During the campaign, Trump himself called upon the Russians to leak emails stolen from the DNC, and used the stolen emails time and again on the campaign trail.

To make a long story short, there’s enough Russian smoke in the room to have Trump gasping, and looking for the nearest fire extinguisher.

Two of Trump’s most loyal supporters have admitted lying, or at least carelessly uttering misleading falsehoods, about their communications with the Russian ambassador prior to Trump taking office. One of them, former National Security Advisor Michael Flynn, resigned when he was caught. The other, Attorney General Jeff Sessions, had to recuse himself from any DOJ investigation into Russia’s interference with the election.

And that’s not all. The infamous “dossier” compiled by a former British MI6 agent contains serious, even shocking, allegations that the Russians had a trove of compromising information about Trump that they could use as leverage against him. The allegations include complicity in Russia’s attempts to undermine the 2016 election. While the contents of the dossier remain largely uncorroborated, the allegations are still out there.

All of this has led to a flood of Congressional and law enforcement investigations into the Russian interference. The FBI is conducting investigations, and it appears that there will be at least five investigations conducted in the House and Senate.

At least some of those investigations will necessarily look for any evidence that Trump, his associates, or anybody else was acting in concert with the Russians, or was otherwise complicit in their interference with our election. They will look for evidence of a quid pro quo.

While the committees conducting the congressional investigations are largely controlled by Republicans, some of whom have been loyal to Trump (so far), there are enough independent thinkers involved to be relatively confident that most, if not all, of the facts will eventually come out.

To make a long story short, there’s enough Russian smoke in the room to have Trump gasping, and looking for the nearest fire extinguisher.

Trump’s go-to fire extinguisher is what I call the Pee-wee. Whenever he gets in serious trouble, he tries to change the narrative by accusing his accusers of his own transgressions. Or, as Pee-wee Herman would say, “I know you are, but what am I!”

Trump whipped out the Pee-wee on his Russia problem last weekend. In an epic Twitter tantrum, he attempted to turn around the charge of election tampering by accusing Obama of exactly what he himself stands suspected of doing.

He called out his big gun, the Whopper, a big lie made up out of thin air, to deflect attention from his own transgressions and change the narrative. Obama is the one who really tampered with the election, not Trump. Obama wiretapped him! Nixon! Watergate!

The problem with this Whopper is that it is so manifestly false that even his most subservient staffers won’t try to defend it on its own terms. Instead, they use The Kellyanne, a defensive tactic that ignores what Trump actually said, pretends he said something else, and then defends the “something else.”

Deputy White House Press Secretary Sarah Huckabee Sanders pulled a Kellyanne on national television last weekend. She defended Trump for saying things that he never said. Huckabee Sanders insisted that there is “wide reporting suggesting that [Obama’s] administration, whether it was directly ordered by this president specifically, his administration could have done this.”

Forget that this word salad has almost nothing to do with what Trump actually said (“Just found out that Obama had my ‘wires tapped’ . . . “how low has President Obama gone to tap my phones” . . . “This is Nixon/Watergate. Bad (or sick) guy”). There was nothing in Trump’s tweets about “wide reporting” or whether Obama did this “directly,” or “his administration could have done this.”

White House Press Secretary Sean Spicer performed the same two-step. Rather than addressing Trump’s direct accusation that Obama wiretapped him, Spicer pulled a full Kellyanne: “I think that there’s no question that something happened. The question is, is it surveillance, is it a wiretap or whatever? . . . But there’s been enough reporting that strongly suggests that something occurred.”

Never mind that Trump didn’t say that “something” happened, or raise a “question,” or “whatever,” or “suggest” that there has been “enough reporting” to suggest that “something” occurred. None of that. He flat out accused Obama of having him wire tapped.

By defending Trump for saying something that he never said, the White House is trying to set up the next link in the mendacity chain. The Aiken is coming!

Vermont Senator George Aiken is credited for a highly creative proposal to end the Vietnam war. Just “declare victory” and get out of Dodge.

The Aiken, simply put, is declaring victory even when you have lost. The idea is to salvage at least a shred of dignity from a lost cause.

That is exactly what the Trump administration is setting up here. At the end of the day, when all of the investigations are done and the reports issued, the preposterous accusation that Obama wire tapped Trump Tower will be thoroughly debunked. Trump’s lie will be fully exposed.

But the reports will find “something.”

For instance, we already know that government wiretaps of the Russian embassy captured the Ambassador’s conversation with Michael Flynn. And it is likely that somewhere along the way, the government obtained legal Title III or FISA wiretaps against Russian or other foreign agents that captured conversations with Americans who were incidentally caught up in the web, but were not the targets of the wiretap.

That will be enough for Trump to declare victory. Total and complete vindication! Forget that his accusations against Obama will have been disproved. Forget that there is nothing nefarious or Nixonian about legally obtained interceptions of communications by foreign agents. Declare victory and scram.

The Aiken is just around the corner. Wait for it!

Philip Rotner is an attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow Philip on Twitter at @PhilipRotner.

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