Ten More Questions for President Trump
Yesterday, I posed ten questions for President Trump in response to his bizarre Twitter temper tantrum accusing his predecessor of wiretapping Trump Tower in the days before the election.
In the hours after I did so, a variety of media organizations began reporting—unsurprisingly, I suppose—that the President’s tweets were not based on any information that came from within the executive branch—indeed, that the White House was now scrambling to find some evidence to substantiate the president’s statements. Here’s how the New York Times characterized it:
His aides declined to clarify on Saturday whether the president’s allegations were based on briefings from intelligence or law enforcement officials — which could mean that Mr. Trump was revealing previously unknown details about the investigation — or on something else, like a news report.
But a senior White House official said that Donald F. McGahn II, the president’s chief counsel, was working to secure access to what Mr. McGahn believed to be 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. It would be a highly unusual breach of the Justice Department’s traditional independence on law enforcement matters for the White House to order it to turn over such an investigative document.
Any request for information from a top White House official about a continuing investigation would be a stunning departure from protocols intended to insulate the F.B.I. from political pressure. It would be even more surprising for the White House to seek information about a case directly involving the president or his advisers, as does the case involving the Russia contacts.
After the White House received heavy criticism for the suggestion that Mr. McGahn would breach Justice Department independence, a different administration official said that the earlier statements about his efforts had been overstated. The official said the counsel’s office was looking at whether there was any legal possibility of gleaning information without impeding or interfering with an investigation. The counsel’s office does not know whether an investigation exists, the official said.
If you are finding Lawfare useful in these times, please consider making a contribution to support what we do.
Also yesterday, the estimable Julian Sanchez writing on Just Security, penned this excellent explainer piece about what he thinks is really going on. I find entirely plausible Sanchez’s suspicion that Trump is really just channeling and garbling accounts in news stories about surveillance around the campaign that have been kicking around for some time.
All that said, Sanchez's account is speculative. And we thus still have on our hands a definitive presidential statement that his phones were “wiretapped” by his predecessory. Unless and until the President retracts those statements or amends them to comport with Julian’s sense (which I share) of what the reality probably is, I think we all have an obligation to take the words of the President of the United States seriously.
So in that spirit, here are ten more questions for President Trump on the subject of his tweetstorm yesterday:
- To the extent any wiretap you revealed yesterday was previously classified, your tweets have declassified the fact of its existence. Do you agree that the FBI, DOJ, and the FISA Court are now at liberty to confirm the existence of any FISA surveillance that may have been taking place at Trump Tower or against its occupants?
- Do you agree that, to whatever extent no such surveillance was taking place, the fact of its absence—which is to say the fact that you were either lying or making up facts or repeating allegations published in Breitbart with no idea of their accuracy—is also not classified?
- Will you similarly declassify any material the underlying FISA application may contain so that the public can understand the basis or lawlessness of the alleged Obama surveillance of your campaign and business?
- You say that there was “Nothing found” in the wiretapping of Trump Tower. Are you thereby declassifying the fruits of any surveillance that may have taken place? Will you?
- You say that the surveillance was “Turned down by court earlier.” Are you thereby declassying the fact of and waiving any privacy interests in any earlier application to the FISA Court or to any federal district court under Title III—and in any rulings that any court may have made on the subject?
- To whatever extent you have revealed FISA surveillance in a series of tweets, with which agencies, if any, did you consult before declassifying presumably sensitive material about a foreign counterintelligence investigation that is by most accounts still ongoing?
- To whatever extent you have revealed FISA surveillance in a series of tweets, was your National Security Adviser, Gen. H.R. McMaster, aware that you intended to declassify sensitive material about a foreign counterintelligence investigation that is by most accounts still ongoing?
- You say that you “bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!” Are you planning to bring suit against Obama or anyone else under either 50 U.S.C. § 1810—which provides for civil remedies for “[a]n aggrieved person, other than a foreign power or an agent of a foreign power . . . who has been subjected to an electronic surveillance”—or under 18 U.S.C. § 2520—which provides that “any person whose wire, oral, or electronic communication is intercepted . . . in violation of [criminal wiretap law] may in a civil action recover from the person or entity, other than the United States, which engaged in that violation”?
- To the extent no such surveillance took place or you have grossly mischaracterized it, do you have any concerns that you might have imputed grave misconduct to your predecessor—in the language of New York Times v. Sullivan—with “‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not”?
- If so, have you or your counsel considered the question of whether a tweet from the @realDonaldTrump Twitter account that contains a slander or a libel is an official presidential act for which you are immune from liability under Nixon v. Fitzgerald or whether it is personal conduct for which you might be subject to suit under Clinton v. Jones?