If you woke up Saturday morning scratching your head as to what the heck President Donald Trump was talking about when he tweeted that Obama had his “wires tapped” in Trump Tower just before his victory, you are not alone.
So what happened?
The best that we can tell, Trump is referring to a Breitbart article which was published Friday night that makes reference to attempts by U.S. intelligence agencies to obtain a warrant from the Foreign Intelligence Surveillance Court (FISA) to monitor communications involving Donald Trump and several advisers. The interesting thing is that this isn’t a new development. In fact, several outlets including Mother Jones, The Guardian, The National Review, and Heat Street have been reporting on this alleged activity over the last couple of months.
Here is the best summary we could find of the Obama administration’s efforts to wiretap Trump associates. From a January 11, 2017 Guardian article:
Trump then questions in a Tweet on Saturday morning if this is legal and even makes analogies to Nixon/Watergate.The Guardian has learned that the FBI applied for a warrant from the foreign intelligence surveillance (Fisa) court over the summer in order to monitor four members of the Trump team suspected of irregular contacts with Russian officials. The Fisa court turned down the application asking FBI counter-intelligence investigators to narrow its focus. According to one report, the FBI was finally granted a warrant in October, but that has not been confirmed, and it is not clear whether any warrant led to a full investigation
So is it legal?
While the analogies to Watergate are totally misplaced (as that involved an illegal break-in), the underlying questions about the legality of these wiretaps are indeed important ones. So far, there is no indication that the Obama administration acted “illegally” if they did indeed intercept communications from Trump Tower.
“The problem with the President’s question is that the standards for FISA are so low and easily satisfied (with little judicial review) that it is difficult to establish any illegality under the law,” wrote George Washington Law Professor Jonathan Turley.
The FISA procedures were put in place in the aftermath of the Nixon-era scandals. To obtain a FISA warrant, the government needs to demonstrate probable cause that the “target of the surveillance is a foreign power or agent of a foreign power.” On top of that, the agents must prove that the main purpose of the surveillance is to obtain “foreign intelligence information