Yesterday, I wrote about the strategy and tactics for investigating the Trump/Russia connection. As you may imagine, I got a number of responses which are unpublishable in these pages. To my surprise, however, at least two lawyers whom I respect asked a question of the form "what about investigating the Obama wiretap order" and suggesting, implicitly, that my failure to include an investigative plan for that allegation was evidence of incompleteness, if not bias. Because they were serious questions (unlike some of the other inquiries I got!) I thought I would treat the suggestion with respect and answer more fully. I would not include the Obama/Wiretap allegation in a Russia/Trump investigative plan for at least three independent reasons:
1) The investigations are not really connected. As discussed yesterday, there is a plausible (albeit unproven and perhaps unprovable) overarching thesis of investigation to the Russia/Trump allegations—namely that the allegations of influence, contacts, and cover-up are directly derived from allegations of counter-intelligence influence. This may or may not be true—but as a thesis for investigation it has coherence. The Obama/Wiretap allegations don't fit into the thesis—rather they are completely disconnected from it and therefore not well-suited to inclusion in the investigative plan. NOTE: This is not to say that the two are factually completely disconnected—indeed the alleged wiretap was (if it happened) probably in service of one of the Russia/Trump investigations identified and likely was targeted at the Russian end of the conversation (as seems to be the case with General Flynn's ill-fated calls to the Ambassador). Rather, this is to say that the motivations are unrelated, if not completely opposed to one another and thus don't fit into the same strategic investigation, even if we credit the allegations.
2) Unlike the Russia/Trump allegations, the Obama/Wiretap allegation is simply not credible. As noted, there is significant doubt that such a wiretap order was even entered. Its origins appear to lie in a conspiracy theory without any factual basis. For me (and here I speak personally) the allegation is of a piece with the suggestion that there were 3-5 million illegal votes; that Ted Cruz's family was involved in the JFK murder; and that President Obama was not born in Hawaii.
Still, to honor the request, if this were, in fact, my investigation, the thesis for this investigation would NOT be "the government got a wiretap order, that authorized an interception which may have involved someone at Trump Tower." For if that were the allegation it would have no legs—after all the lawful issuance of a warrant authorizing interception is ... well ... legal authorization. The thesis would, instead, have to be either: a) that in securing the warrant the warrant applicant knowingly lied to the court; or b) that no warrant was applied for or received but interception nonetheless occurred. And to give credence to President Trump's suggestion there would have to be a subsidiary thesis that these occurred because President Obama directly or indirectly ordered them to happen. Had any of this actually happened it would be a plausible criminal case.
The investigative plan would be simple -- get copies of any and all FISA and Title III applications and orders relating to Russia and or President Trump issued in the last 2 years. Review same. Interview FBI agents assigned to any cases relating to such orders. Interview IT service providers for Trump Tower. All of the evidence that relates to these allegations is presumably within the United States and readily available. All of which brings me to the third factor:
3) Since the allegation is of misconduct by the former President, the current President and/or the Congress are well-situated to investigate. There is no formal conflict of interest and thus no need for an independent investigation. To be sure, as a matter of discretion, the AG might appoint a special counsel (much as President Obama did to investigation the actions of the CIA under President Bush) but it isn't necessary as either a matter of law or a matter of appearance. If Congress really were interested, it could put this one to bed (one way or the other) in a matter of weeks, I think.