Politics & Policy

Parsing Clapper

DNI Clapper on Capitol Hill, February 2014 (Reuters photo: Gary Cameron)
What he said was probably true, but what he didn’t say was more revealing.

In Monday’s Morning Jolt, Jim Geraghty usefully outlined some intriguing statements made by former Obama national intelligence director James Clapper regarding the FISA surveillance controversy. Clapper’s remarks, in an interview by NBC’s Chuck Todd on Meet the Press on Sunday, are being taken as a blanket denial of the allegations that the Obama administration used the Justice Department and FBI to investigate Trump-campaign figures, potentially including Trump himself.

But what Clapper said is far from a wholesale rejection of the allegations. To be sure, General Clapper’s statements convincingly shoot down the claim that Trump himself was wiretapped by the government. But to my knowledge, no one has made that claim other than President Trump, in a series of controversial tweets on Saturday morning. Clapper’s statements do nothing to undermine the overarching allegation that the Obama Justice Department investigated associates of Trump who had varying connections to his campaign.

I’m going to assume the truth of General Clapper’s statements. Understandably, many commentators stress that, in the past, he has been caught testifying to things that were untrue (denying bulk metadata collection by intelligence agencies) or ridiculous (asserting that the Muslim Brotherhood is “largely secular”). Making false or misleading statements under oath is serious business, so obviously this history weighs on Clapper’s credibility.

Still, I’ve never believed he was fundamentally a shady character. On the metadata issue, he gave an untrue answer to a senator who intentionally asked an unfair question about classified information in a public setting (though that, of course, is no justification for answering falsely). On the Muslim Brotherhood, he was dutifully toeing the Obama line — not admirable, but not shocking. Those things aside, Clapper is a longtime soldier and intelligence pro, generally well regarded by his peers. I’m giving him the benefit of the doubt that, in the Sunday interview, he was trying in good faith to walk the difficult tightrope of answering questions accurately while not compromising sensitive or classified information.

Now, before parsing General Clapper’s statements, let’s rehearse the allegations that have been made about Obama-administration investigative activity against the Trump circle — understanding (as I underscored in yesterday’s column) that we are necessarily speculating based on reporting that we cannot verify because the relevant documents (if they exist) have not been disclosed.

The claim pertinent to Clapper’s interview is that the Obama Justice Department went to the FISA court in June 2016 with a broad warrant that may have focused on a server in Trump Tower, may have “named” Donald Trump (but not necessarily targeted him for surveillance), and did target a number of Trump’s associates. The FISA court is said to have denied the warrant — meaning there was no eavesdropping authority, so presumably no wiretapping was done. Later, in October, the Obama Justice Department is said to have presented the FISA court a narrower application that did not mention Trump but did target some of his associates. That application is said to have been granted.

The existence of neither application has been confirmed, but the evidence is stronger on the latter. As I excerpted in the column, the New York Times reported in mid-January that the FBI was conducting a “counter-intelligence” investigation (which very likely means a FISA investigation), in which it was reviewing “intercepted communications” of Trump associates (Paul Manafort, Roger Stone, and Carter Page are mentioned). Having first titillated readers with the specter of Trump-campaign collusion with Russia, the Times ultimately conceded that the investigation may have had nothing to do with Trump, the Trump campaign, the 2016 election, or the Putin regime’s hacking of e-mail accounts; it may instead relate to the Trump associates’ business dealings with persons and entities connected to Russia. With that as background, let’s parse Clapper’s statements as Jim outlines them.

Having first titillated readers with the specter of Trump-campaign collusion with Russia, the Times ultimately conceded that the investigation may have had nothing to do with Trump, the Trump campaign, the 2016 election, or the Putin regime’s hacking of e-mails.

Clapper Statement: For the part of the national-security apparatus that Clapper oversaw, “there was no such wiretap activity mounted against the president, the president-elect at the time, or as a candidate, or against his campaign.” 

Me: The director of national intelligence does not “oversee” the entirety of the government’s national-security apparatus. By statute, for example, the attorney general (who of course runs the Justice Department) oversees the process of requesting and executing electronic surveillance under the Foreign Intelligence Surveillance Act (see Title 50 U.S. Code, Sec. 1801 et seq.). Nevertheless, though he would not have overseen it, I assume Clapper would have been aware of any FISA wiretap activity targeting Donald Trump.

Other than Trump’s tweet (which I do not mean to minimize), there has been no allegation that Trump himself was wiretapped. The claim is that there was a FISA application in June 2016, in which the Justice Department sought to wiretap some of Trump’s associates and perhaps Trump himself (it is not clear that Trump was targeted; he was allegedly “named”). If there was a June application, it is said to have been denied by the FISA court. Therefore, wiretapping would not have been conducted as result of it. And obviously, Trump was neither president nor president-elect at that time — he was a candidate running for president.

As for the assertion that there was no wiretapping “against [Trump’s] campaign,” the claims about wiretapping have never focused on the campaign qua campaign. The claim has been that associates of Trump with varying degrees of connection to the campaign and/or to a Trump Tower server were targeted for surveillance and wiretapped.

In other words, Clapper did not deny any allegation that anyone following this story carefully had made. Clapper’s denial is responsive only to Trump’s tweet. Had it not been for Trump’s tweet, Clapper’s denial would be irrelevant — it does not refute the prior reporting. Nothing in this denial undermines the allegation that Trump associates with connections to the campaign were subjected to wiretapping.

Clapper Statement: When NBC’s Chuck Todd asked him whether he could confirm or deny whether there existed a FISA court authorization for surveillance of Trump as a candidate or of Trump’s campaign, Clapper declared, “I can deny it.”

Me: Again, the media reporting indicates that the only FISA application “naming” Trump was denied by the FISA court (i.e., the alleged June application). Thus, no one has been alleging that there is a FISA order authorizing the electronic surveillance of Trump or his campaign (as opposed to surveillance of some of Trump’s associates who had attenuated ties to the campaign). Even Trump’s tweets, alleging that he had been wiretapped, did not claim there was a FISA court authorization for this alleged tapping.

Clapper Statement: Asked again whether there was a FISA court order to monitor Trump Tower, Clapper said, “Not to my knowledge.”

Me: I do not believe anyone has alleged that there was a FISA court order authorizing electronic surveillance at Trump Tower. Assuming there was a FISA application in June, it may have targeted devices that were in Trump Tower, but that application is said to have been denied. As for the October application that was granted, it may not have targeted Trump Tower, but it still could have targeted devices that moved through Trump Tower at least some of the time.

For example, Paul Manafort, a Trump associate whose communications were reportedly intercepted by the government at some point, lived in Trump Tower, and until August, he was chairman of the Trump campaign headquartered in Trump Tower. If there were, say, FISA authorizations to monitor his cell phone, they would likely have resulted in monitoring at Trump Tower. In addition, there have been at least some suggestions that former national-security adviser Michael Flynn was at Trump Tower (where much of the transition activity took place) when he made the phone calls and wrote texts to Russian ambassador Sergei Kislyak. Undisputed reporting indicates that the December call to Kislyak that ultimately led to Flynn’s dismissal was intercepted and eavesdropped on by the FBI. I strongly suspect that this is because the FBI, under FISA, was monitoring the phone of Kislyak. So even if neither Flynn nor Trump Tower was targeted for FISA surveillance, it may well be that some of Flynn’s communications from Trump Tower were intercepted pursuant to court-authorized FISA surveillance.

Clapper Statement: If any wiretap order authorizing monitoring at Trump Tower occurred, he would “certainly hope” that he would be aware of it. “I can’t speak for other authorized entities in the government or a state or local entity,” he added.

Me: Again, it has not been alleged that Trump Tower was a court-authorized surveillance target, and it wouldn’t have needed to be in order for communications to be intercepted there if persons who were targeted by FISA orders frequented Trump Tower. And the fact that Clapper cannot speak for other investigative entities underscores that, while his position as national intelligence director was not unimportant, it did not provide oversight authority over all FISA surveillance.

In sum, and scrutinized carefully, General Clapper’s statements do not refute the claim that the Obama Justice Department sought and obtained FISA surveillance authorization targeting associates of then-candidate Donald Trump — associates who were connected to his campaign to varying degrees. And bear in mind that while the media and Democrats are now using Clapper’s statements to try to downplay Obama-administration investigation efforts against Trump associates, they were very content for the last four months to have Americans believe an aggressive investigation was underway. As I explained in yesterday’s column, fueling the public perception that Trump and his campaign were under investigation has been essential to propping up the false narrative of collusion between the Trump campaign and the Putin regime to “hack the election.”

On that score, as Jim’s Morning Jolt concludes:

There’s also this rather important, seemingly blanket denial of collusion from Clapper: Clapper was also asked on “Meet the Press” if he had any evidence that the Trump campaign was colluding with the Russian government while the Kremlin was working to influence the election. “Not to my knowledge,” Clapper said, based on the information he had before his time in the position ended.

I’m betting that if the United States government ever actually had evidence of such an earth-shattering conspiracy, the director of national intelligence would have known about it.

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