NOTE: An earlier version of this story stated that a FISA warrant was received by the FBI. There is conflicting reporting on this point. The story has been updated to more accurately reflect this uncertainty.

In a series of tweets Saturday morning, President Donald Trump took to Twitter to accuse his predecessor of tapping his phone in the month leading up to the election. “How low has President Obama gone to tapp[ing] my phones during the very sacred election process,” Trump tweeted. “This is Nixon/Watergate. Bad (or sick) guy!”

Five things you need to know

  • While it is highly unlikely that President Obama personally ordered anyone to tap the phones in Trump tower, the FBI has been actively pursuing several overlapping investigations that relate to connections between Trump confidants and Russia.
  • Any communications between Trump associates and Russian officials would almost certainly have been intercepted as part of the U.S. intelligence community’s routine monitoring of Russian intelligence officers and government officials. No action would have been required of Obama. 
  • Stories in the British press have reported that the FBI sought, and apparently received, a FISA warrant. Caution is warranted. American news outlets have never been able to corroborate the British reporting and there are other reasons to doubt this as well.
  • Even if there was a FISA warrant, it would not have targeted Trump directly. Even the British reports do not support the claim that it targeted phones in Trump tower. Rather, the British stories claim it focused on the activities of two Russian banks and the peculiar behavior of a computer server registered to the Trump Organization.
  • The complexity and arcane processes governing national security investigations provide fertile conditions for conspiracy theories. Presidents do not have the power to unilaterally order wiretaps on U.S. persons. If Obama did specifically order a wiretap targeting Trump, it would be a scandal of epic proportions. However, from what we know, there’s no evidence to suggest he did.

A Suspicious Server and a ‘Silent Coup’

Trump’s tweet-storm coincides with the publication of a Brietbart story reportedly making the rounds in Trump world on Friday. In it, radio talk show host Mark Levin outlined what he said was a silent “silent coup” plotted by President Obama in the closing days of his administration to undermine his successor. Based on the publicly available evidence, Levin’s theory is  far-fetched. The truth is probably far less dramatic. And, at the center of the story is (drumroll please) yet another email server.

Julian Sanchez has an excellent post sorting through Levin’s arguments over at Just Security.

The White House says that Trump’s tweet was based on several articles, most of which are also cited by Levin.  The most significant (and controversial) of these is a November article by Louise Mensch, of Heat Street, a British news site. According to Mensch’s report, “the FBI sought, and was granted, a FISA [Foreign Intelligence Surveillance Act] court warrant in October…after evidence was presented of a server” registered to the Trump Organization “and its alleged links to two banks; SVB Bank and Russia’s Alfa Bank.

This should be viewed cautiously, well-sourced U.S. journalists who have been covering this story every day have as yet not been able to corroborate this report. 

The FBI’s interest was piqued late last spring when a group of academic computer scientists reviewing Domain Name Server (DNS) logs, a sort of central address book that helps internet traffic find its way around the web, noticed something strange in the DNS requests coming from a disused server registered to the Trump Organization. It seemed to be communicating almost exclusively with two servers registered to Russian-based Alfa bank. It wasn’t necessarily nefarious, but it was odd. Considering that around that same time, in June of last year, cybersecurity researchers concluded that the Russian government had been behind attacks on the DNC’s email system, it was alarming enough to investigate further.

According to a BBC report, the FBI is said to have sought the warrant “to intercept the electronic records from two Russian banks.” The order, the BBC story claims, targeted foreign entities rather than President Trump or his associates directly.

“Their first application, in June, was rejected outright by the judge. They returned with a more narrowly drawn order in July and were rejected again. Finally, before a new judge, the order was granted, on 15 October, three weeks before election day. Neither Mr Trump nor his associates are named in the FISA order, which would only cover foreign citizens or foreign entities – in this case the Russian banks. But ultimately, the investigation is looking for transfers of money from Russia to the United States…”

The New York Times, which has not reported that a FISA warrant was involved. According to the Times, after examining data from the server the FBI determined that the servers’ odd behavior might be explained by something more innocuous, like a misaddressed email bouncing back and forth between the servers.

Careful Denials

President Obama and former administration officials deny that there was any FISA warrant issued targeting Trump or his staff. Appearing on NBC’s Meet the Press Sunday, former Director of National Intelligence James Clapper said that, speaking for the intelligence community, there was “no wiretap activity mounted against the president, the president-elect at the time, or as a candidate, or against his campaign.” Clapper confirmed that if the FBI had received such an order, he would have been aware of it. 

Former President Barack Obama’s spokesman Kevin Lewis also denied Trump’s accusation. “A cardinal rule of the Obama Administration was that no White House official ever interfered with any independent investigation led by the Department of Justice,” Lewis said. “As part of that practice, neither President Obama nor any White House official ever ordered surveillance on any U.S. citizen. Any suggestion otherwise is simply false.” 

Presidents do not have the power to unilaterally order a wiretap on Trump, or any U.S. ‘person.’ Even if there had been a wiretap order on Trump’s phones, it would be requested by the attorney general rather than the president. A wiretap requires first obtaining a warrant from a Federal judge. To do so, the government must demonstrate that there is probable cause that the target of the wiretap has committed a serious crime or, in the case of FISA warrants, is an agent of a foreign power.

Trump’s Phones Weren’t Tapped; but the Russians’ Were

No credible source, including the ones cited by the White House, assert Trump’s phones were tapped. Trump can rest easy. Unless…

Any conversations with Russian officials would be intercepted as part of the routine surveillance that U.S. intelligence agencies conduct on Russian government officials. There would be no need for Obama to tap Trump’s phone to pick-up conversations with Russians, the Russians’ phones are almost certainly being listened to anyway. Clearly conversations between Trump’s former National Security Advisor Michael Flynn and Russian Ambassador Sergei Kislyak were monitored. However, there are strict FISA “minimization procedures” restricting how such incidental collections of conversations involving U.S. persons could be used. David Kris of Lawfare provides a good explanation of how this applied in the Flynn case:

“It is certainly true that U.S. intelligence services can get orders from the Foreign Intelligence Surveillance Court to monitor foreign officials. The Russian ambassador, simply by virtue of his nationality and official position, is an “agent of a foreign power” under FISA and hence a valid target for wiretapping. It is publicly known and acknowledged that the U.S. government uses FISA to wiretap foreign embassies and consulates…

“…In some cases, when an intelligence agency issues a report based on a wiretap, minimization requires the issuing agency to substitute a generic reference in place of a U.S. person’s name—e.g., ‘Ambassador Kislyak said that he was looking forward to watching the Grammy Awards on television and that he was hoping that [U.S. Person] would win an award.’ [Intelligence reports aren’t always exciting as you think.]

“But a U.S. person’s name can be used when it is necessary to understand the foreign intelligence information in the report, and no serious argument can be made that Flynn’s identity was not necessary to understand the intelligence significance of his call with Ambassador Kislyak.”

 Political Jujitsu

Attorney General Jeff Sessions’ recusal last week represented only the latest maddening drip in a Chinese water torture inflicted by a string of Russia-related revelations that keep knocking the legs out from under White House denials.

While nothing has emerged so far that provides conclusive evidence of any wrongdoing, memories of Trump associates seem to get unusually hazy when it comes to their dealings with Russia. Judging by how often Trump aides have been forced to clarify their statements, team Trump must feel more misunderstood than a teenage goth listening to Morrissey on repeat.

The White House’s preferred tactic – deny it all as fake news and attack the media – has been in a losing battle with real news of late. Turning the tables on Obama puts Trump back on the familiar conspiratorial ground he happily plowed for many years with his birther claims.

Whether intentional or not, President Trump’s accusation is a brazen feat of political jujitsu. In turning the tables on Obama, he shifts the debate and puts himself back on offense. Defending a claim that, however preposterous, is nearly impossible to prove untrue is much easier than disputing facts that are staring everyone in the face.

 

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