After six weeks of nonstop politics, engaged citizens on both sides of the political spectrum may have wished for a peaceful weekend free of news from Washington D.C. Too bad for them! On Saturday morning, President TrumpDonald John TrumpNearly 300 former national security officials sign Biden endorsement letter DC correspondent on the death of Michael Reinoehl: 'The folks I know in law enforcement are extremely angry about it' Late night hosts targeted Trump over Biden 97 percent of the time in September: study MORE unleashed a tweet storm accusing his predecessor of tapping his phone in the month prior to the election.

Let’s review what President Trump is claiming. He writes that “Obama has had my ‘wires tapped’ in Trump Tower,” that the tap happened “in October, just prior to Election,” and, most importantly, that an application for a wiretap had been “(t)urned down by court earlier.”

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President Trump did not provide evidence to support these claims, and he may be making up facts about an application for a wiretap. But let’s take him at his word for three important reasons.

 

First, if law enforcement officials unsuccessfully applied for a wiretap, as Trump claims, then a government document exists in which federal law enforcement officers swear under penalty of perjury that there was probable cause to believe that Trump had or would commit a serious federal crime. Both liberals concerned with presidential overreach and conservatives concerned about misdeeds of the prior administration would like to see such a document.

Second, if a court eventually did authorize a wiretap, then a United States judge decided prior to the election that there was probable cause to believe that Trump had or would commit a serious federal crime.

Third, even if Trump’s claims are not true, it is a good opportunity for engaged citizens to consider the existing legal protections against government searches of our private information.

Wiretapping, like any other governmental search, is subject to the limitations of the Fourth Amendment, which provides that people are “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Ordinarily, law enforcement must obtain a warrant to search a person’s possessions.

The Fourth Amendment requires “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched” for a court to issue a warrant.

Congress enacted statutes applying these Fourth Amendment principles in the context of wiretapping. Wiretapping is generally illegal, with necessary exceptions for law enforcement. Federal law enforcement officers can seek a wiretap for investigations related to a long list of serious crimes, such as espionage, bribery of public officials, sex trafficking, and the like.

When a federal law enforcement officer wants to tap a phone, monitor a computer, or bug a room, he or she must first get the authorization of a lawyer in the Department of Justice. The officer and lawyer then jointly apply for permission “in writing” and submit the application to a “Federal judge of competent jurisdiction,” meaning in normal cases a federal trial court judge.

The application must provide “details as to the particular offense that has been, is being, or is about to be committed” and “the identity of the person, if known, committing the offense.”

The trial court will grant the warrant only if three preconditions exist (there are more requirements, but these three are the most relevant):

  • First the court must conclude that “there is probable cause for belief that an individual is committing, has committed, or is about to commit” a serious federal offense.

  • Second, the court must find that “particular communications concerning that offense will be obtained through such interception.”

  • Finally, because wiretapping is so intrusive, the court must conclude that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous."

This discussion puts aside warrants under the Foreign Intelligence Surveillance Act, because that statute requires a “Manchurian Candidate” scenario. FISA would require that the target (then candidate Donald Trump) was “an agent of a foreign power,” and that a significant purpose of the wiretap is to obtain “foreign intelligence information.”

What does this mean for the citizens and journalists who want to know if Trump is telling the truth? They should try to obtain a copy of the relevant application for a wiretap and the court order refusing that application, which the president mentions in his tweet. Although these purported documents would be sealed (and thus confidential), they “shall be disclosed... upon a showing of good cause” before a federal judge.

If the application for a wiretap doesn’t exist, then President Trump has created “alternative facts.” It’s up the American people, rather than any court of law, to determine the response to that possibility.

William Fernholz is a lecturer-in-residence at the UC Berkeley School of Law and the director of its appellate and competitions programs.


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