We need an independent look at the FBI's handling of Trump's campaign
© Greg Nash

As many have pointed out over the past week, President Trump’s tweets alleging that President Obama ordered wiretapping of the Trump campaign are not only free of evidentiary support, they are nonsensical. But aside from the interesting fact that the tweets themselves may be subject to federal records laws, as the House Oversight Committee warned this week, Trump’s tirade is significant because it actually reveals the need for an independent investigation of the FBI’s actions concerning its investigation of the Trump campaign, though not for the reason the president thinks.

First, let’s just review how our surveillance law works. To begin with, the president doesn’t initiate law-enforcement or surveillance activity against a U.S. citizen — the FBI does. Moreover, the Obama administration had a clear policy that no White House official could ever interfere with any independent investigation led by the Department of Justice. Indeed, it is likely this scrupulous impartiality actually hurt Hillary ClintonHillary Rodham ClintonHannity: I won't discuss Seth Rich story for now "out of respect for the family" Clinton slams Trump's budget: 'An unimaginable level of cruelty' Trump’s crisis of legitimacy MORE’s campaign because neither the White House nor the Attorney General was willing to order FBI Director James Comey to stay silent in the days leading up to the election, even though Comey’s comments about Clinton’s emails were both contrary to long-standing FBI policy and possibly illegal under the Hatch Act, which prohibits official capacity action intended to influence the outcome of a partisan election.

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Second, even if the FBI wants to conduct surveillance on a U.S. citizen, it must first obtain approval from an independent panel of judges, who review such requests under the Foreign Intelligence Surveillance Act (FISA). News reports suggest that the FBI did in fact make multiple requests to the FISA court last year and that the court ultimately did permit the FBI to conduct surveillance on Russian banks that might be transferring money to, and communicating with, the Trump campaign.

 

But far from suggesting a nefarious Obama-initiated witch hunt, the approval of the FISA court indicates that the FBI had met its burden of showing sufficient probable cause or at least that the material to be collected was sufficiently relevant to an authorized investigation.  In any case, if the FBI did gather intelligence, that says more about the seriousness of the investigation into the Trump campaign’s ties with Russia than it does about possible vendettas hatched by the Obama White House.

Third, the president has the power to declassify almost any document he wants. If there were any surveillance conducted by the FBI of the Trump campaign or its Russia connections, the material collected could easily be declassified and released to the public to prove that those Russia connections are as innocent as the White House insists. His refusal to do so is yet another suggestion that Trump really does have something to hide when it comes to his longtime association and business dealings with Russia.

In short, there is simply no indication that the FBI was engaged in an illegal probe ordered by the White House or even how such a probe could be initiated.

However, a need for an independent investigation does exist, though ironically for the opposite reason Trump thinks. Far from investigating the Trump campaign too aggressively, the FBI might actually be guilty of not investigating aggressively enough both the Trump campaign’s Russia connections and the Russian cyber-interference with the election. As far back as April 2016, the CIA was reportedly provided “a tape recording of a conversation about money from the Kremlin going into the U.S. presidential campaign,” which had been passed on by an intelligence agency from a Baltic State.

In addition, the now infamous Steele dossier was provided to the FBI in July 2016, describing among other matters the coordination between Russian intelligence and the Trump campaign of cyber-attacks on the Democratic National Committee and other Clinton campaign associates. Further, the FBI apparently had evidence of this Russian hacking months before informing high-level officials at the DNC about the incursion. Yet, according to Reuters, despite all of this information, the various Trump-Russia “inquiries were shifted into low gear weeks ago because the FBI wanted to avoid any impact on the election.”

Thus, there is a very real possibility that the FBI soft-pedaled its investigation about Russian efforts to aid the Trump campaign while releasing to the public in highly unorthodox and possibly illegal fashion information about Hillary Clinton’s emails just before the election. This suggests the need for an independent investigation of the FBI’s handling of the Trump-Russia information, but for precisely the opposite reason as Trump’s recent tweet storm alleges.

Paul Schiff Berman is the Walter S. Cox Professor of Law at George Washington University and the author of Global Legal Pluralism, published by Cambridge University Press in 2012.


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