Ben Rhodes claimed on Twitter that “no president can order a wiretap”:

So what does the law actually state (read it in it’s entirety below where I emphasized a few relevant points, yet they’re all relevant).

The bottom line is, the president can authorize electronic surveillance through the Attorney General without a court order to acquire foreign intelligence information. Many safeguards and stipulations are in place for that type of surveillance to have happened that should make it easy to follow the paper trail if Obama and Lynch authorized it. Both had to authorize it if they followed the law.

Now contrast what the law states and what former AG Mukasey said on ABC’s This Week and what former DNI Clapper said on NBC’s Meet the Press today.

Mukasey:

I think the president was not correct certainly in saying that President Obama ordered a tap on a server in Trump Tower. However, I think he’s right in that there was surveillance and that it was conducted at the behest of the attorney — of the Justice Department through the FISA court.

And,

It means there were some basis to believe that somebody in Trump Tower may have been acting as an agent of the Russians, for whatever purpose, not necessarily the election, but for some purpose.

But does he know if it was a DOJ directed FISA order or a presidential directed order to the AG? He seemed to say it was through the normal FISA process.

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Now let’s go to Clapper, where even Chuck Todd was taken aback when he said out loud that Clapper made, “an important revelation at this point.” I agree with Chuck Todd!

I will say for the part of the national security apparatus that I oversaw as DNI there was no such wiretap activity mounted against the President, the President-Elect at the time or as candidate or against his campaign. I can’t speak for other Title III authorized entities in the government or state or local entities.

He was unequivocal that the FBI, nor any of the other 15 intel agencies under his command, had not obtained a FISA and he would have known if they had. He left no doubts.

That comports with the law cited below that the president can authorize a wiretap through the AG. It explains why Clapper said the FBI had not obtained a FISA warrant. It also implies the government thought Trump was a foreign agent since this type of courtless warrant if you will, can only be obtained solely at “the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers.”

For this exercise, let’s assume both guests are telling the truth as well as all the leaked reports from the MSM that a FISA warrant was issued and granted and the surveillance of Trump’s server actually took place. Then only one conclusion can be made and that is the president himself authorized the AG to obtain a surveillance warrant without a court order.   

If you noted in the law below, the only way for this type of warrant to be authorized by the president is:

  • The AG swears under oath all of the conditions set forth under the law
  • Consults with the DNI
  • The AG “reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence”.
  • The President must authorized in writing to the AG to approve eavesdropping without a court order.

Trump is either making everything up and so is Mark Levin that worked for the DOJ or there is something there.

Clapper may be parsing his words, as usual, and knows that his umbrella agencies didn’t request a FISA warrant but that the AG did consult with him. But Chuck Todd was focused on the FBI and Clapper offered up a denial regarding all standard agencies. Then again, maybe Lynch didn’t consult with him and he’s in the dark and telling the truth for once.

Members of Congress on the Intel committees mentioned should know if surveillance was done without a court order. Why is Adam Schiff in a tiff? Why did Nunes say he doesn’t think there was a FISA warrant? Why is Coon’s saying that there is no evidence Trump colluded with the Russians?  Why did Ryan imply there was a FISA warrant?

Is it possible that Obama authorized AG Lynch to spy on Trump without following the letter of the law, meaning bypassing the standard FISA warrant procedures and those that allow him to direct a courtless surveillance warrant, and that’s what is causing all hell to break loose the confusion?

If so, we have WaterGate on steroids and can now call it ObamaFloodGate.

 

5 0 U.S. Code § 1802 – Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal;…of communication common carrier; applications; jurisdiction of court.

(a)

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i)

the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or

(ii)

the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;

(B)

there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C)

the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801(h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

(2)

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.

(3) The Attorney General shall immediately transmit under seal to the court established under section 1803(a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless—

(A)

an application for a court order with respect to the surveillance is made under sections 1801(h)(4) and 1804 of this title; or

(B)

the certification is necessary to determine the legality of the surveillance under section 1806(f) of this title.

(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—

(A)

furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and

(B)

maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.

(b)

Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) unless such surveillance may involve the acquisition of communications of any United States person.
(Pub. L. 95–511, title I, § 102, Oct. 25, 1978, 92 Stat. 1786; Pub. L. 108–458, title I, § 1071(e), Dec. 17, 2004, 118 Stat. 3691; Pub. L. 111–259, title VIII, § 806(a)(2), Oct. 7, 2010, 124 Stat. 2748.