Should the Acting Attorney General Provide FISA Court Orders to White House Counsel?

By Jane Chong
Sunday, March 5, 2017, 5:30 PM

In his perplexing tweetstorm yesterday, possibly prompted by nothing more than some blend of Mark Levin and Breitbart, President Trump accused former President Obama of wiretapping him in Trump Tower before the election. In a response some have described as meaningless spin, President Obama’s spokesman denied that the Obama administration had “ever ordered surveillance on any U.S. citizen.”

The Trump administration seems determined to take this somewhere—perhaps to retroactively justify a series of irresponsible tweets. Yesterday afternoon the New York Times reported:

[A] senior White House official said that Donald F. McGahn II, the president’s chief counsel, was working on Saturday to secure access to what Mr. McGahn believed was an order issued by the Foreign Intelligence Surveillance Court authorizing some form of surveillance related to Mr. Trump and his associates.

The official offered no evidence to support the notion that such an order exists. If one does, it would be highly unusual for a White House to order the Justice Department to turn over such an investigative document, given the traditional independence of law enforcement matters.

Later the Times cited another administration official who seemed to backtrack on the idea that McGahn had any intention of doing anything other than “gleaning information” from the Justice Department “without impeding or interfering with an investigation.” And in another twist this morning, on "Meet the Press," former Director of National Intelligence James Clapper stated that “there was no such wiretap activity mounted against the president, president-elect, candidate or campaign."

So let’s say there is no FISA Court order for surveillance on Trump or his associates—or that there could be but that the White House presently has no factual basis for claiming so. The problem with any White House attempt to “glean[] information” that may or may not exist with respect to an ongoing Justice Department investigation is that it requires prodding the various agencies for material. And that prodding could contravene a lot of custom and established department independence.

That in turn creates a question: if McGahn seeks out this kind of intelligence information from the Justice Department notwithstanding convention, must the Attorney General oblige him? Put differently, how reasonable would it be for the AG—or the acting AG, following Sessions’s recusal—to block the White House’s attempt to obtain national security information, whether real or nonexistent, where seeking it seems to threaten political interference with the Justice Department’s investigative powers?

On this general subject, Jeff Stein of Newsweek quotes a Justice Department official who says that President Trump can declassify whatever he wants and, as “consumer-in-chief” of U.S. intelligence, is entitled to obtain directly from the department any records related to the surveillance of him and his associates. But classification actually has little to do with the issue at hand because the question is not whether the President “can” view the order. Of course he can. The classification system is itself an executive creation—specifically, it is a creature of a Truman-era executive order—and it doesn’t prevent the President from seeing anything. As president, however, Trump is indeed the top intelligence dog and the very consumer that the system is designed to best serve; withholding requested intelligence from him is odd.

That said, a close examination of the general legal and policy landscape yields a strong argument that the attorney general is not categorically obliged to provide Trump any and all foreign intelligence-related information that he requests.

For an articulation of the middle ground between the President’s supremacy when it comes to intelligence consumption and the need to protect the Justice Department from White House interference in ongoing investigations, recall again that 2009 Eric Holder memo setting out limitations on communications between the White House and Justice Department. So far, the memo has mostly captured the public interest for the various provisions that suggest the inappropriateness of political aides like Stephen Miller and Reince Priebus contacting and attempting to instruct various Justice Department entities. But here’s the provision that strikes me as relevant—in a non-technical, common-sense way—to this particular situation:

In order to ensure the President's ability to perform his constitutional obligation to "take care that the laws be faithfully executed," the Justice Department will advise the White House concerning pending or contemplated criminal or civil investigations or cases when—but only when—it is important for the performance of the President's duties and appropriate from a law enforcement perspective.

If turning over the supposed FISA order or related materials is not “important for the performance of the President’s duties and appropriate from a law enforcement perspective,” the acting AG should refuse to do it. This is a reasonable principle irrespective of whether the 2009 memo remains in force under Jeff Sessions, as we are talking about what should be the philosophical baseline of any Justice Department that takes its independence seriously. Right now, we have nothing to suggest that McGahn’s quest to obtain FISA materials pertaining to the Russia investigation is important for or intended to enhance, say, the President’s ability to execute his duties as commander-in-chief, and plenty to suggest that providing the White House that information might be inappropriate from a law enforcement perspective. If the acting AG himself isn’t presented with anything more, then there is no reason to facilitate White House entanglement in this investigation.

It’s worth noting that to the extent that Trump and McGahn’s concerns about the alleged wiretaps derive from Trump’s capacity as their purported subject, rather than from his supervisory role as President, the FISA statute already establishes a process by which the legality of such surveillance can be challenged. Consider how straightforward this case would be if Trump were simply a defendant in a criminal case whose communications had been subjected to surveillance and, on his behalf, his attorney sought disclosure of the relevant FISA application, order, or related materials by way of the process laid out in the statute. He could then move to compel the disclosure of the classified materials per 50 U.S.C. §§ 1806 and 1825 as part of his criminal defense. These provisions explicitly provide that the court must unseal materials arising out of FISA electronic surveillance and physical searches “to the extent that due process requires discovery or disclosure.”

As the FISA Court of Review explained in a rare decision in 2002, after the defendant makes this motion, “the decision whether to allow a defendant to obtain FISA materials is made by a district judge on a case by case basis,” as is the finding “whether such a decision protects a defendant's constitutional rights.” That process unfolds as follows: the Attorney General may (and reliably does) oppose the request for disclosure by filing an affidavit stating that the disclosure “would harm the national security of the United States,” per 50 U.S.C. §§ 1806(f) and 1825(g). The Court must then “review in camera and ex parte the application, order, and such other materials relating to the surveillance [or physical search] as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted,” and may order disclosure only if it “is necessary to make an accurate determination of the legality of the surveillance.” If the court’s review indicates the surveillance was lawfully authorized and conducted, then the defendant and defense counsel don’t get access. Motion denied.

Of course, President Trump is not an ordinary defendant and McGahn is not ordinary defense counsel. More importantly, the matter at hand is not a criminal case resembling Watergate but a publicly still-fuzzy investigation about events that may or may not have happened, with all sorts of national security tentacles. In national security matters, the system by default treats the President as the ultimate deciding authority, not a source of vulnerability. So, unsurprisingly, the FISA statute yields no special insights about what should be done here.

But examination of the statutory process is, like the Holder memo, helpful in ballparking a principled answer as to what an independent AG should do; in fact, it gets us to approximately the same place. That process is designed to ensure the AG does not turn over FISA materials if he believes that the disclosure “would harm the national security of the United States.” If the acting AG believes that is true here, or if, as with an ordinary criminal defendant, Trump’s purported concern is simply to ascertain the legality of the surveillance, the acting AG should decline to provide the FISA materials to McGahn.

If it seems awkward for the acting AG to suggest that disclosure to his boss in the White House would harm U.S. national security, note that this need not entail throwing Trump or White House counsel under the bus. In ordinary FISA cases, many courts have stressed the generic proposition that defense counsel’s trustworthiness is not the dispositive factor in disclosure decisions. Rather, “Congress has a legitimate interest in authorizing the Attorney General to invoke procedures designed to ensure that sensitive security information is not unnecessarily disseminated to anyone not involved in the surveillance operation in question, whether or not she happens for unrelated reasons to enjoy security clearance.” So, too, when it comes to any disclosure request from McGahn or the White House more generally. (Consider, for example, the continuing flood of leaks from the White House. Do we really want all kinds of sensitive Russia-related information unnecessarily being passed around that space?)

As to the second point, if McGahn’s concern lies in reviewing and ensuring the legality of the supposed wiretapping of Trump Tower, that’s not a valid reason to put in a direct request to the Justice Department for access to sensitive FISA materials, or for the Department to comply. Congress has already put into place the elaborate system described above to address questions about legality. If the Russia investigation leads to criminal prosecution, the surveillance subjects will have ample opportunity to engage that system. In any event, according to Sean Spicer, Trump is requesting that the congressional intelligence committees examine whether executive investigative powers were abused in the lead-up to the election. That’s a more appropriate channel for pursuing supposed legality questions, though Trump's request was redundant even before House Intel Chairman Devin Nunes released his statement today explicitly pledging to oblige. These issues have been sufficiently hyped and politically charged since revelations of Michael Flynn’s conversations with Russian ambassador Sergey Kislyak that I can’t imagine Congress would fail to look into the basis for and process by which any FISA surveillance affecting U.S. persons was conducted.

As for any lingering questions about the acting AG’s capacity to push back against the purported wishes of the White House in this manner: of course he can, up until the point Trump politically dares to remove him. For more than a hundred years, the Supreme Court has repeatedly emphasized that Congress has, by way of 28 U.S.C. § 516 and other provisions, vested in the Attorney General the power to conduct all litigation on behalf of the United States. “The Attorney General is the head of the [Justice Department], and its functions are all to be exercised under his supervision and direction.” In its Supreme Court brief in United States v. Nixon, the United States addressed the authority of the Attorney General vis-a-vis the President by way of some helpful historical examples:

Congress frequently confers powers and duties upon subordinate executive officials, and in such situations the President's function as Chief Executive does not authorize him to displace the designated officer and to act directly in the matter himself. As long as the officer holds his position, the power to act under the law is his alone. A familiar example of this basic principle was illustrated by President Andrew Jackson's legendary battle over the Bank of the United States. Two Secretaries of the Treasury refused to obey the President's command to withdraw deposits from the Bank, a function entrusted to the Secretary by law. The President's only recourse was to seek a third, who complied with Jackson's wish. See generally Van Deusen, The Jacksonian Era, 1828-1848, pp. 80-82 (1959). Attorney General Roger Taney gave a similar opinion to President Jackson, advising him that as long as a particular United States Attorney remained in office, he was empowered to conduct a particular litigation as he saw fit, despite the wishes of the President. See 2 Op. Att'y Gen. 482 (1831).

As the cited examples suggest, the President could, of course, always fire the attorney who defies his wishes (the acting AG here is Dana Boente only for the time being; Deputy Attorney General nominee Rod J. Rosenstein’s confirmation hearing begins Tuesday and he is expected to be speedily confirmed). And in this instance, Trump might attempt to argue he should be granted greater-than-usual political latitude to do so in light of the national security vectors in play. But that’s a risk that a responsible attorney general committed to exercising independent judgment should take. In the United States, we have a long history of attorneys general doing precisely that, as modeled most recently by former Acting Attorney General Sally Q. Yates.