Washington is in need of fainting couches. On Saturday, President Donald Trump tweeted that his predecessor, Barack Obama, ordered a wiretap on him before the election. Legislators and pundits are horrified. The swamp is stunned.
So let's unpack this. To be sure, what Trump tweeted is almost certainly false. Since the creation of the Foreign Intelligence Surveillance Court, a president cannot just order the FBI or the NSA to eavesdrop on a U.S. citizen. Justice Department lawyers have to ask that secret court for a warrant.
By Sunday evening, news outlets were reporting that FBI director James Comey had urged the Justice Department to clarify the record and say no such wiretap was ordered. In this respect Trump got it wrong.
This, though, is not the end of the story. What Trump should have tweeted is that he suspects many Obama administration alumni are selectively disclosing to the public details of his associates' phone calls and meetings that appear related to an ongoing investigation into his ties to Russia. That's not the same as spying on one's political opposition. But it's an abuse of power nonetheless.
Let's start with former National Security Adviser Michael Flynn. His phone calls were incidentally collected in routine monitoring of communications of Russian nationals. This means that while there was likely no warrant to tap Flynn's phone calls, the government listened in on his calls with the Russian ambassador to Washington, Sergei Kislyak, and those conversations were then made public.
The original Washington Post story about the transcripts of the Flynn calls was sourced to nine current and former officials. That's important. Monitored communication of U.S. citizens is some of the most sensitive intelligence protected by the U.S. government. It appears in this case that Flynn's conversations were widely distributed.
More recent reporting has supported this. The New York Times last week disclosed that White House aides in the final days of Obama's presidency took unusual steps to widely distribute within the government intelligence suggesting ties between Russia and Trump and his associates. The Times reported that these officials ordered up intelligence reports and made sure they were at a low enough classification level that many more government officials could read them.
On top of that, Attorney General Loretta Lynch signed an order on Jan. 3 making it easier for the National Security Agency to share raw intercepts of emails and phone calls with the rest of the intelligence community. Before this rule change, such intercepts were scrubbed to black out the names of innocent people who were monitored incidentally.
The Times report posited that the Obama initiative on Trump and Russia was aimed at preserving intelligence and protecting sources, fearing the new administration would try to bury the reports once it came into power. This explanation, however, seems farfetched. So far, the Trump White House staff has shown itself to be amateurs. In the first six weeks of his presidency, Trump has not been able to fill key slots in the national security bureaucracy. Meanwhile, his administration faces a barrage of sensitive leaks from anonymous officials, suggesting many in his government are disloyal to their commander in chief.
Of course, Trump and his cabinet have created problems for themselves. If Attorney General Jeff Sessions hadn't said during his confirmation hearing that he had not met with the Russian ambassador, then that meeting wouldn't have been much of a scandal. It's not unusual for senators on the Armed Services Committee to meet with ambassadors. Trump also does himself no favors when he bizarrely equates Vladimir Putin's lethal behavior with past U.S. actions, as he did on Super Bowl Sunday in an interview with Fox News.
But misremembering meetings and over-the-top praise of the Russian president is not evidence of collusion with a foreign power's intelligence operation. What's more, on substantive policy, thus far Trump has not lifted sanctions on Russia or pulled out of NATO. Indeed, he has mused about withdrawing from the nuclear arms control treaty negotiated by Obama in his first term during his own reset with Russia.
So far, the FBI has told the House and Senate intelligence committees as well as senior White House staff that it has yet to turn up evidence of collusion between the Trump campaign and the Russians on their hacking and influence campaign against the 2016 elections. At the same time, U.S. officials tell me that the FBI has not yet closed this investigation.
It's also significant here that according to the last director of national intelligence, James Clapper, there was no Foreign Intelligence Surveillance Act warrant to monitor Trump or his campaign. Surely, if the U.S. intelligence agencies had real evidence that Trump's associates were collaborating with Russian spies, they would have gone to the FISA court.
Nonetheless, there is much we don't know. It's possible that the explosive leaks about Trump associates including Flynn, Sessions, former campaign manager Paul Manafort, political operator Roger Stone and former Russia adviser Carter Page are the tip of the iceberg. Or these leaks may be nothing more than rumor and innuendo.
If it's the latter, then the Obama officials who spread out the intelligence on Trump and Russia, and those who then leaked it, are prejudicing the FBI's investigation before it finishes. That's not whistleblowing. That's political warfare.