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What we know about Trump’s alleged wiretapping claims

These are the circumstances under which a presidential candidate’s campaign communications could be collected.

A supporter of President Donald Trump chants holds a sign calling for an investigation of the Trump Tower wire taping during a rally on Fifth Avenue near Trump Tower, Saturday, March 4, 2017, in New York. CREDIT: AP Photo/Mary Altaffer
A supporter of President Donald Trump chants holds a sign calling for an investigation of the Trump Tower wire taping during a rally on Fifth Avenue near Trump Tower, Saturday, March 4, 2017, in New York. CREDIT: AP Photo/Mary Altaffer

The White House has so far offered no evidence or explanation for President Donald Trump’s recent accusation that the Obama administration wiretapped his campaign offices, standing by the unsubstantiated claims this week.

When asked Wednesday if Trump was the subject of a counterterrorism investigation, White House press secretary Sean Spicer said the president has asked for an in-depth investigation to find out. A day earlier, Spicer said he hadn’t seen any proof of the president’s claims because “that’s above my pay grade.” When pressed further, he said, “It’s not a question of new proof or less proof or whatever.” Meanwhile, Trump’s adviser Kellyanne Conway has suggested that Trump’s claims were based on “intelligence.”

Even though FBI Director James Comey has called Trump’s tweets false, congressional Republicans are still pushing to investigate further. House Intelligence Committee chair Rep. Devin Nunes (R-CA) and House Oversight Committee chair Rep. Jason Chaffetz (R-UT) both say they will look into Trump’s accusation.

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The question of whether it’s possible for the president to collect a presidential candidate’s telephone or online communications is a complex one, and the answers aren’t straightforward.

ThinkProgress spoke with Elizabeth Goitein, the co-director for the Brennan Center for Justice’s national security program, to get a better idea of how wiretapping works and what’s getting left out of the current conversation.

What are some examples of when a presidential candidate’s campaign communications could be collected?

One example is the government actually has probable cause to believe Trump campaign aides are spies or have violated other laws. Another would be, with evidence of Russian interference of the election, the government can get a FISA order targeting a Russian entity if that entity were inside the United States, and the government could target the Russian entity without an individual FISA order if the entity were outside the United States. And if Trump’s campaign is in contact with the entities in question, those communications would get picked up.

What is the Foreign Intelligence Surveillance Act, or FISA?

It’s a law that was enacted in 1978 to govern the government’s collection of electronic communications between foreigners and Americans for foreign intelligence purposes.

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For a long time, it was not clear whether a warrant would be needed. After FISA was enacted, the government would have to go to the FISA court, in secret, and show probable cause that the target, an American or foreigner, was an agent of a foreign power, such as a foreign government, a foreign political organization, entities operated by foreign government, international terrorists, et cetera.

For an American to be an agent of a foreign power, basically a spy, the definition is much narrower.

Are there special exceptions?

In 2007 and 2008, FISA was amended so that if the target is a foreigner overseas, you don’t have to get a warrant. In addition, the government doesn’t have to get a warrant if the collection itself takes place overseas. And there are some rules about how you handle the Americans’ end of the communications, redaction of identities, et cetera, but those rules don’t apply if their identity is important to understanding the context or importance of the communication, or if the information is evidence of a crime.

Are FISA warrants only good for wiretaps?

You can only get FISA warrants if foreign intelligence is a significant purpose of the collection. You can also get FISA orders to conduct physical searches, obtain business records, etc.

Can a president order a wiretap of an American citizen?

No. There’s no legal way a president can say, “I want to wiretap that American guy, let’s do it.”

There may be is a misperception with national security matters that the president can do whatever he wants, but executive powers are bound under Article 2 of the Constitution.

Is it possible the government collected communications from Trump?

They would have to have shown probable cause that he was an agent of a foreign power, and basically a spy. That’s a very high bar that he’s unlikely to meet.

What are people missing with regard to media reports regarding Trump’s claims?

One thing that is kind of a escaping people is that a communication involves two people, and one of them might be working on a presidential campaign. The other might be an official for a Russian bank that has ties to the Kremlin. You’re going to get the communications of the campaign aides if the Russian bank was the target.

So if intelligence agencies collect a person’s electronic communications, are they the target of the investigation?

That’s not how it works. When the NSA or FBI collects a target’s communications they also get the communications of those who were communicated with.

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There are a lot of explanations of why Trump campaign aides might have been caught up. There are explanations that are nefarious and legitimate. Trump is not complaining about a FISA warrant, he’s just saying Obama tapped his phones. There’s zero evidence other than Trump’s Twitter propensities.

What should the public make of everything?

It’s hard for the public to know how to react when the president tweets out a completely unsubstantiated accusation of this nature. There’s no evidence to support it.

But even if it were true that some surveillance had taken place, there is a multi-layered legal regime that governs the collection of foreign intelligence, and one possibility would be that the administration was acting within that regime as part of its investigation of Russian interference into the presidential election.

That might be troubling for other reasons — for instance, because the laws that govern foreign intelligence surveillance are so permissive and allow so much collection of Americans’ information. But that doesn’t make it illegal or a scandal.

This interview has been edited and shortened for clarity.