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Law & the Courts

Do Any Sources Go on the Record Anymore?

From the first Morning Jolt of the week:

Do Any Sources Go on the Record Anymore?

In this entire epic allegation of Russian collusion with the Trump campaign to influence or even swing the 2016 presidential election… how many on-the-record sources have we heard from?

Last week, we noticed that “U.S. officials” could tell NBC News that the Yemen raid yielded no significant intelligence and “American officials” could tell the New York Times that computers and cellphones seized offered “insights into new types of hidden explosives the group is making and new training tactics for militants.” A difference in assessments that stark is hard to chalk that up to a mundane difference of opinion on the value of the intelligence. It’s hard to shake the feeling that some officials are leaking a false version of events, hiding behind anonymity, in an effort to influence public perceptions.

So far, the story of alleged Russian collusion with Trump has relied just about entirely on anonymous sources. Take, for example, this morning’s news:

F.B.I. director, James B. Comey, asked the Justice Department this weekend to publicly reject President Trump’s assertion that President Barack Obama ordered the tapping of Mr. Trump’s phones, senior American officials said on Sunday. Mr. Comey has argued that the highly charged claim is false and must be corrected, they said, but the department has not released any such statement.

Mr. Comey, who made the request on Saturday after Mr. Trump leveled his allegation on Twitter, has been working to get the Justice Department to knock down the claim because it falsely insinuates that the F.B.I. broke the law, the officials said.

A spokesman for the F.B.I. declined to comment. Sarah Isgur Flores, the spokeswoman for the Justice Department, also declined to comment.

Look, Trump’s claim could very well be nonsense, and probably is. But if it is akin to claiming that pigs can fly, or that Elvis ran off with Bigfoot, etcetera, you would think everyone associated with law enforcement in the Obama era would happily go on the record and declare the accusation is nonsense.

We received an on-the-record denial from Obama’s spokesman:

A cardinal rule of the Obama Administration was that no White House official ever interfered with any independent investigation led by the Department of Justice. As part of that practice, neither President Obama nor any White House official ever ordered surveillance of any U.S. citizen. Any suggestion otherwise is simply false.

Of course, that statement denies that President Obama ordered wiretapping of President Trump or his associates. It doesn’t deny that Trump or his associates were wiretapped.

We already know that some Trump officials’ conversations with foreign officials were picked up by U.S. intelligence services, because the wiretaps were “aimed” at the foreign officials. If you call a foreign official or diplomat, you really don’t have any expectation of privacy:

It is certainly true that U.S. intelligence services can get orders from the Foreign Intelligence Surveillance Court to monitor foreign officials. The Russian ambassador, simply by virtue of his nationality and official position, is an “agent of a foreign power” under FISA and hence a valid target for wiretapping. It is publicly known and acknowledged that the U.S. government uses FISA to wiretap foreign embassies and consulates. So, the Journal may be right that Flynn was picked up on a wiretap of the Russian ambassador.

Is everyone 100 percent absolutely certain that at no point, based upon Trump officials’ chats with foreign (possibly Russian) agents, did further wiretapping go on — wiretapping that was focused less on the foreign officials and more on figures associated with the Trump campaign? One-hundred percent certain? Hand-on-a-Bible willing to swear to it?

You must read former prosecutor Andy McCarthy on these subjects:

[In June], the FISA court reportedly turned down the Obama Justice Department’s request, which is notable: The FISA court is notoriously solicitous of government requests to conduct national-security surveillance (although, as I’ve noted over the years, the claim by many that it is a rubber-stamp is overblown).

Not taking no for an answer, the Obama Justice Department evidently returned to the FISA court in October 2016, the critical final weeks of the presidential campaign. This time, the Justice Department submitted a narrowly tailored application that did not mention Trump. The court apparently granted it, authorizing surveillance of some Trump associates. It is unknown whether that surveillance is still underway, but the New York Times has identified – again, based on illegal leaks of classified information – at least three of its targets: Paul Manafort (the former Trump campaign chairman who was ousted in August), and two others whose connection to the Trump campaign was loose at best, Manafort’s former political-consulting business partner Roger Stone, and investor Carter Page.

Again, everything we’re discussing comes from information in public reports, attributed to unnamed government sources. And we ought to be at least a little uncomfortable with the fact that everything we know about this investigation comes from sources that aren’t willing to go on the record or put their names next to their statements. 

A qualified on-the-record denial of FISA wiretapping of Trump from former director of national intelligence James Clapper:

For the part of the national security apparatus that he 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,” Clapper told Chuck Todd in an exclusive interview on Sunday’s “Meet The Press.”

When Todd asked him whether he could confirm or deny if a FISA (Foreign Intelligence Surveillance Court Act) order for this existed, Clapper declared, “I can deny it.”

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

Clapper said that if any wiretap like that 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.

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.

“We did not include anything in our report … that had any reflect of collusion between members of the Trump campaign and the Russians. There was no evidence of that included in our report,” he said. “We had no evidence of such collusion.”


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