Former Attorney General Michael Mukasey was a guest on ABC’s This Week Sunday, where he told fill-in host Martha Raddatz that this situation is the difference between being correct and being right. President Trump was probably right to think that Trump Tower was the subject of surveillance ordered by the Department of Justice through the Foreign Intelligence Surveillance (FISA) Court, but not correct in his explosive allegation that President Obama tapped his phone.
Raddatz asked what evidence he has to back up his theory. Mukasey based it on previous news reports and Rep. Adam Schiff (D-CA), the ranking member of the House Intelligence Committee who is working on the scope of a likely investigation into the Trump campaign’s relations with Russia, who said he wanted to talk to the counterintelligence agents at the FBI. Mukasey says that’s a telling sign that this was an intelligence gathering operation, not a criminal one. Mukasey reiterated the role of the FBI, which is to investigate crimes and gather intelligence, with latter formally becoming part of the agency’s purview in 2008.
Mukasey added that the FBI reportedly tried to get a wiretap based on their criminal investigation function in June of 2016 and were rejected. They later got an electronic surveillance order in October of 2016. Raddatz asked if this means that there were suspicious activity between the Trump administration and the Russians, which Mukasey said all it means is that the DOJ felt that someone at Trump Tower might have been acting as an agent to the Russian government for whatever reasons—not necessarily dealing with the election. He also reiterated that the FBI keeps track of anyone, Russian, Korean, Italian, Chinese etc., who act as agents of foreign governments.
Guy had an excellent post of this incident, where he said that we should wait and see what happens since the Obama officials who are denying the story have zero credibility for lying about how they sold the Iran Deal and the collection of metadata from American citizens by the NSA. If Trump has the evidence, he has the power to declassify documents that back up his claims, specifically the FISA warrants. Yet, on the other hand, Trump’s shoot from the hip mentality also casts his claims in doubt. It could be a situation that we may never know for a long time.
There seems to be some corroboration between news outlets concerning the failed FISA court warrant request from June and the reason for the October warrant stems from the allegation that a server in Trump Tower might be connected to two Russian banks, but that’s not been confirmed. Wired added that it’s very hard to obtain a FISA warrant without compelling evidence, especially against American citizens. You would have to be accused of being acting against the interests of the United States, with evidence to substantiate such claims; information that we the public will probably never know. Yet, it also points to the other side of these allegations by Trump that could damage his administration:
FISA court judges serve seven-year appointments, so the court’s composition doesn’t ebb and flow with the political tides. What’s more, specific laws adopted in the wake of Watergate prevent the very activity Trump accuses Obama of.
What you could tap them for? Acting as a foreign power, or as an agent of a foreign power. In other words, spying against US interests with both knowledge and intent.
Federal authorities must demonstrate not just probable cause, but that a given phone line serves primarily to undermine US interests. It’s difficult, for instance, to obtain a warrant to wiretap a shared office, for fear of picking up innocent third-party conversations.
First, based on previous reporting and the nature of FISA courts, any wiretaps within Trump Tower would be legal. And they would stem from overwhelming evidence that the Trump campaign, or someone within it, has unsavory ties to Russia or another foreign power. Otherwise, it’s unlikely those wiretaps would exist at all.
If federal authorities did have cause to listen in on Trump Tower, though, and they provided enough evidence for a FISA court to approve the snooping, Obama is not the one who ought to worry.
It’s a wait-and-see game—and one that, as Guy mentioned before, could end up being a very long wait.