National Security & Defense

James Clapper’s Non-Denial Denials, Revisited

Former U.S. Director of National Intelligence James Clapper attends a hearing, November 17, 2016 (Carlos Barria/Reuters)
The former intelligence chief never actually refuted Obama administration spying on Trump.

It would be peculiar if, as he now claims, James Clapper did not know about the Obama administration’s monitoring of Paul Manafort. At the time, which appears to have been the autumn of 2016, Clapper was Obama’s national intelligence director. The (dubious) raison d’être of the Office of the Director of National Intelligence (ODNI) — a post-9/11 layering of yet more bureaucracy atop bureaucratic sprawl — was to ensure efficient information flow through the “community” of U.S. intelligence agencies.

That said, it is a gross exaggeration to contend, as some are doing, that new revelations about the surveillance of Manafort, the former chairman of the Trump campaign, show that Clapper lied in a March 2017 interview by NBC’s Chuck Todd. Instead, what we now know proves what I warned at the time of the interview: It was a mistake to construe Clapper’s answers to Todd as a blanket denial of Obama spying on the Trump campaign.

Carefully parsed, Clapper’s comments left open the possibility — which some of us regarded as a high probability — that Manafort and other Trump associates had been under Obama-administration surveillance.

Much is being made of Clapper’s assertion that “there was no such wiretap activity mounted against the president, the president-elect at the time, or as a candidate, or against his campaign.” But what commentators are omitting is a critical qualification that I highlighted right after the interview (as did our Jim Geraghty and NBC News itself). Clapper made clear that he could only speak, as NBC put it, “for the part of the national security apparatus that he oversaw.”

Why was that significant? As I elaborated:

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 [FISA] (see Title 50 U.S. Code, Sec. 1801 et seq.).

The surveillance of Manafort was conducted under FISA. It would have been known to the Justice Department, which presents warrant applications to the Foreign Intelligence Surveillance Court, and to the FBI, which conducts the investigations. But the surveillance operation would be known to the national intelligence director only if the Justice Department, the FBI, and whoever else was in the loop chose to share it with him. Apparently, they did not — confirmation that the ODNI is the excrescence many of us predicted it would be.

At the time of Clapper’s interview, the front-burner topic was whether Trump himself had been monitored. The president had just alleged, in a series of tweets, that his phone lines had been tapped at Trump Tower. I assumed (as I’m sure Clapper did) that Clapper would have been informed if Trump had been targeted for FISA surveillance when he was a candidate or president-elect. But even if that is a safe assumption, it does not mean that Clapper would have been alerted to every surveillance of a Trump subordinate or associate.

What about Clapper’s denials of wiretapping against Trump’s campaign, and at Trump Tower?

Well, let’s put aside for the moment the salient caveat that Clapper was not responsible for (or apparently very well informed about) FISA surveillance. As we also pointed out at the time:

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.

The reporting indicated that the Obama Justice Department had received authorization from the FISA court sometime in October 2016. By then, Manafort’s brief stint as Trump campaign chairman had been over for about two months. He may have remained an informal adviser to the candidate (like his longtime associate Roger Stone), but Manafort was no longer part of the campaign. Thus, Clapper’s answers to questions framed in terms of the campaign did not cover relevant people who, at the time of the surveillance, lacked formal ties to the campaign — people such as Manafort and Stone.

As for monitoring at Trump Tower, Clapper took pains to say that there had been none “to my knowledge.” Moreover, a question framed in terms of monitoring that targeted Trump Tower would miss monitoring that incidentally picked up communications at Trump Tower. Thus, as I wrote back in March, the FISA surveillance

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 told Todd that he “certainly hope[d]” he would have been made aware of any order authorizing Trump Tower surveillance; he reiterated, however, that “I can’t speak for other authorized entities in the government or a state or local entity.” Thus, I concluded:

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.

If you scrutinized what Clapper actually said, you knew the media were overplaying their hand.

The Clinton/Obama-friendly media went ballistic over President Trump’s tweeted accusation that President Obama had wiretapped him. Not content to refute that narrow allegation, the press tried to demolish a more explosive (and more likely) possibility, namely that the Obama administration had spied on Trump associates and campaign officials during and after the campaign — and after the administration had bent over backwards to insulate Hillary Clinton from prosecution.

That conclusion had been drawn by a number of us, attentively sifting through the media’s own reporting. Democrats and their media allies countered by inflating Clapper’s carefully qualified naysaying into a full-blown denial. If you scrutinized what Clapper actually said, you knew they were overplaying their hand. And now we know they were wrong.


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