The conditions for why he could be wiretapped, however, don’t make him look any better
President Donald Trump is making a very big accusation against his predecessor: that former President Barack Obama, during the presidential campaign, wiretapped his phone conversations!
The proof of this allegation, of course, is thin. Trump provided no evidence himself, and it seems that he lifted it off of a FOX News segment where the host suggested that there may have been a possibility, maybe, of this happening, possibly.
From NBC News:
On Friday, Fox's Brett Baier asked House Speaker Paul Ryan whether he was concerned "that the Obama Administration may have been surveilling members of the Trump campaign in a pretty detailed investigation during the election?"Ryan’s response to that question was honest, and pretty mild mannered:
Ryan responded by saying: "I don't think that's the case."Trump, however, had a different approach. The avid cable news watcher took to Twitter, and fired off a series of tweets in an angry rant against Obama.
Trump’s path to his conclusion on Obama’s alleged wiretaps is very circumspect, at best. He gets his information from a guy asking a theoretical question on a cable news network. That hardly justifies blatant accusations thrown out for the entire Twitterverse to see.
But let’s give the president the benefit of the doubt for a moment. Let’s pretend that Obama did in fact tap his phones in Trump Tower. Even if that’s the case — and again, that’s a big stretch, considering the evidence we have so far — the conditions needed to tap a person’s telephone are very strict, and require probable cause before it can occur.
From Cornell University’s Legal Information Institute:
Because of their similarity to searches and seizures, the Fourth Amendment Warrant Clause applies to electronic surveillance as well. Obtaining a warrant for electronic surveillance requires showing probable cause, describing in particularity the conversation to be intercepted, providing a specific time period for the interception of the communications device, and noticing the property owner unless law enforcement can show exigent circumstances.(Emphases added in bold.)
As with ordinary searches and seizures, exigent circumstances may serve as grounds for law enforcement to dispense with first obtaining a warrant. If law enforcement encounters a situation threatening a person's life, a conspiracy threatening the national security, or a conspiracy suggesting organized crime, then law enforcement may proceed without first acquiring a warrant.
This is important stuff — the president cannot just tap anyone’s phones willy-nilly. They need to have probable cause to do so. And in circumstances where the president doesn’t need a court order, they need to be able to eventually defend the action as being pertinent to certain circumstances, including instances where the nation’s security may be compromised.
Federal law is also quite clear on the need to inform members of Congress of the wiretapping:
An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808(a) of this title.So here’s what this all boils down to: President Trump is upset about the fact that someone said that maybe, it could have happened, that the former president tapped his phone communications.
FOR THAT TO BE THE CASE, there had to have been probable cause requiring the need to tap Trump’s phones in the first case; or, failing that, a necessary reason to do so without a warrant, including Trump’s life being in danger or a matter of national security.
So there are four possibilities for what actually happened:
- Trump’s phone was tapped because his personal safety was endangered;
- Trump’s phone was tapped and a warrant describing the need to tap it was obtained;
- Trump’s phone was tapped without a warrant, but the Obama administration had a compelling national security interest in doing so that they felt could be upheld in a court of law;
- Or the whole thing is bunk, because, after all, the only proof Trump has that his phones were tapped by the federal government is a spotty presumption of a TV host on FOX News.