The talk of yesterday, and most likely the talk of today, is President Trump’s claim that he was the subject of electronic surveillance by the Obama administration.

Let’s review what we have.

Paul Ryan seems to acknowledge that some sort of wiretap operation was carried out against either Trump or members of his campaign. I understand Jay Caruso’s point, that in a literal sense Trump’s personal phone may not have been tapped, but that is rather legalistic argument. It is along the line of “you say I shot you with a .45-cal and actually I used a .380, so it didn’t happen.” Ryan clearly acknowledges that a FISA warrant was directed against either Trump or someone/something in Trump’s campaign. That is significant because either the warrant was issued legally… or not. Either way, unpleasantness awaits someone.

Obama’s speechwriter, Jon Favreau makes the same point about the denials put out by Obama’s spokesman and allies. They deny Obama himself ordered the wiretap. At no point do they deny a wiretap was executed.

Last night, there was an interview on FoxNews. The show featured a journalist/author named Cathy Areu being interviewed by Kimberly Guilfoyle. While this is not a masterpiece of the interviewing art, it is interesting.

TRANSCRIPT

GUILFOYLE: While we are watching and waiting for more details to emerge surrounding President Trump’s accusations of wiretapping against the Obama administration, one DC insider says it definitely happened. Cathy Areu is that insider. She’s a liberal journalist who served as a senior adviser in the Bush administration. And she joins me now. Cathy, what do you know?

AREU: My sources this morning, my source, from the White House told me she thinks it is all true. She said there were concerns that Trump, and this is from the White House and the administration, so inside the White House, there was concern that Trump and his surrogates may have been colluding with the Russians as a possible bargaining chip to influence the election. Therefore a wiretap was conducted.

GUILFOYLE: Okay. So the idea is, in fact, that they went ahead and believed this information was correct. Went to the FISA court. Then based on probable cause, put the evidence forward, and said we have this information and believe it, therefore we want this granted. It just seems highly suspicious, because that seems to be used for improper means. We want to spy on them to see what they are doing during this election process. This tight race between, at the time, candidate Trump and Hillary Clinton.

AREU: Right. And my source believes it. After seven and a half years with the Obama administration, had heard that there were concerns and she said she is not sure who secured the warrant. That was her one question. Who secured the warrant? But the White House and the administration they were concerned and they did discuss the wiretapping.
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AREU: My source, direct quote, said the intelligence community did it’s due diligence given the threat of the Russian influence so it was merely due diligence by conducting the wiretapping.

I don’t know how credible the source used by this Cathy Areu person is — probably as credible as any of the other sources on the Russia mess — but the idea that you can get a FISA wiretap to just be sure is, assuredly, not how any of this works.

The story is also receiving more respectful coverage at Politico. First they tell us how difficult it is:

Digital surveillance experts told POLITICO that a president-ordered wiretap of candidate Trump’s phone in Trump Tower is not only improbable, but would likely cross a legal line. Officials must meet a high bar to tap the phone of an American citizen on American soil, especially if that person is a political candidate. Presidents are not allowed to request or order wiretaps — that is left to law enforcement agents, with court approval.

Then they tell us how it could have been done:

First, they may have come upon Trump Tower phone calls if a targeted foreign agent was on the other end of the line — this method comes from the Foreign Intelligence Surveillance Court. Or Trump Tower digital chatter might show up while digging through the vast quantities of data hoovered up via more sweeping foreign surveillance programs.

Second, the FBI could have also asked for a so-called “pen register” or “tap and trace device,” which only record the parties involved in a phone call. These requests have a lower bar for approval.

And then they tell us, yeah, it probably happened:

While it’s unknown if any of these scenarios occurred, it’s “very likely that the people in the Obama administration had access to the communication of senior Trump officials in the run-up to the election, because they have very, very broad authority,” said Cindy Cohn, executive director of the Electronic Frontier Foundation, which has advocated for revising surveillance laws.

And given the ongoing FBI-led investigation into potential ties between Trump’s associates and Russian officials, it’s plausible that law enforcement officials and intelligence agencies had an interest in — or simply came across — the communications in Trump Tower, specialists said. The government is also investigating an alleged Russian plot to use cyberattacks and disinformation to help Trump win.

According to news reports, the FBI last summer went to the Foreign Intelligence Surveillance Court — which approves clandestine spying efforts — asking for warrants to monitor four members of Trump’s team suspected of having improper exchanges with Russian officials. After being rebuffed, officials reportedly narrowed their request and got approval in October to monitor a computer server in Trump Tower to establish whether there were ties to Russian banks.

But such surveillance would be vastly different than the type of direct wiretapping Trump raised in his Tweet storm Saturday morning.

Again, we have the legalistic focus of a) Obama did not personally attach a listening device to Trump’s phone and b) Trump’s personal phone may not have been tapped so there isn’t a story here. I would just point out that the Watergate burglars were not in George McGovern’s office, they were in the offices of the DNC. If this is true, the issue of who and what was the subject of surveillance is rapidly going to become a footnote that no one is going to read because the implications of a President using the intelligence apparatus of the United States against a political candidate is enormous.

And lastly there is a very interesting analysis in LawNewz. I pointed out a similar analysis yesterday, via JustSecurity, that logically pulls together the various threads that we have to provide background and context. This is another such article.

This bring us to Watergate-on-Steroids, or #ObamaGate. Here are the problematic aspects of the Obama surveillance on Trump’s team, and on Trump himself. First, it is not apparent FISA could ever be invoked. Second, it is possible Obama’s team may have perjured themselves before the FISA court by withholding material information essential to the FISA court’s willingness to permit the government surveillance. Third, it could be that Obama’s team illegally disseminated and disclosed FISA information in direct violation of the statute precisely prohibiting such dissemination and disclosure. FISA prohibits, under criminal penalty, Obama’s team from doing any of the three.
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At the outset, the NSA should have never been involved in a domestic US election. Investigating the election, or any hacking of the DNC or the phishing of Podesta’s emails, would not be a FISA matter. It does not fit the definition of war sabotage or a “grave” “hostile” war-like attack on the United States, as constrictively covered by FISA. It is your run-of-the-mill hacking case covered by existing United States laws that require use of the regular departments of the FBI, Department of Justice, and Constitutionally Senate-appointed federal district court judges, and their appointed magistrates, not secretive, deferential FISA courts.

Out of 35,000+ requests for surveillance, the FISA court has only ever rejected a whopping 12. Apparently, according to published reports, you can add one more to that — even the FISA court first rejected Obama’s request to spy on Trump’s team under the guise of an investigation into foreign agents of a pending war attack, intelligence agents apparently returned to the court, where, it is my assumption, that they did not disclose or divulge all material facts to the court when seeking the surveillance the second time around, some of which they would later wrongfully disseminate and distribute to the public. By itself, misuse of FISA procedures to obtain surveillance is itself, a crime.

This raises the second problem: Obama’s team submission of an affidavit to to the FISA court. An application for a warrant of any kind requires an affidavit, and that affidavit may not omit material factors. A fact is “material” if it could have the possible impact of impacting the judicial officer deciding whether to authorize the warrant. Such affidavits are the most carefully drawn up, reviewed, and approved affidavits of law enforcement in our system precisely because they must be fully-disclosing, forthcoming, and include any information a judge must know to decide whether to allow our government to spy on its own. My assumption would be that intelligence officials were trying to investigate hacking of DNC which is not even a FISA covered crime, so therefore serious questions arise about what Obama administration attorneys said to the FISA court to even consider the application. If the claim was “financial ties” to Russia, then Obama knew he had no basis to use FISA at all.

Since Trump was the obvious target, the alleged failure to disclose his name in the second application could be a serious and severe violation of the obligation to disclose all material facts. Lastly, given the later behavior, it is evident any promise in the affidavit to protect the surveilled information from ever being sourced or disseminated was a false promise, intended to induce the illicit surveillance. This is criminalized both by federal perjury statutes, conspiracy statutes, and the FISA criminal laws themselves.

That raises the third problem: it seems the FISA-compelled protocols for precluding the dissemination of the information were violated, and that Obama’s team issued orders to achieve precisely what the law forbids, if published reports are true about the administration sharing the surveilled information far-and-wide to promote unlawful leaks to the press. (See my post on this subject.)

The thing to keep in mind here is that the author is making assumptions, which he identifies, of what probably happened to enable the various reported actions to have occurred. Keep in mind, that we are still working without any actual facts which means this story is every bit as substantial as the stories of Trump’s ties to Russia.

What all of this seems to be saying is that there was a desire by the Obama administration to for surveillance, of some sort, directed against either Trump, himself, or his close associates. It seems that eventually some sort of surveillance actually took place. From the information we have that surveillance seems to have involved the use of a FISA warrant and that warrant may have been issued based on a misleading affidavit indicating the target of the surveillance was someone other than Trump or members of his campaign.

The administration is sure enough of the claim that it has asked Congress to investigate Obama’s alleged wiretapping as part any investigation into Russian meddling in the 2016 campaign. This is a very high stakes gamble because there is no doubt Devin Nunes will go there even if Richard Burr doesn’t have the guts to do so. If it is investigated and found to be false the political fallout from that will resonate for the remainder of Trump’s term. And if it is investigated and found to be true, life is going to be very unpleasant for a lot of folks and no amount of legacy defense for Obama is going to work.