There have been two thought-provoking articles by Benjamin Wittes on the Lawfare blog about Trump’s accusations of wiretapping: “Ten Questions for President Trump” and “Ten More Questions for President Trump”.
Wittes summarizes the legal questions that arise from Trump’s accusatory wiretap tweets. I’ve excerpted some of the questions below, but do go read both lists.
1. Are you making the allegation that President Obama conducted electronic surveillance of Trump Tower in your capacity as President of the United States based on intelligence or law enforcement information available to you in that capacity? ….
5. If you know that a Title III wiretap took place, are you or were you at the time of the application engaged in criminal activity that would support a Title III wiretap or might you have previously engaged in criminal activity that might legitimately be the subject of a Title III wiretap?
And from the second article, which gets to several interesting points:
1. To the extent any wiretap you revealed yesterday was previously classified, your tweets have declassified the fact of its existence. Do you agree that the FBI, DOJ, and the FISA Court are now at liberty to confirm the existence of any FISA surveillance that may have been taking place at Trump Tower or against its occupants? ……
6. To whatever extent you have revealed FISA surveillance in a series of tweets, with which agencies, if any, did you consult before declassifying presumably sensitive material about a foreign counterintelligence investigation that is by most accounts still ongoing? ……
9. To the extent no such surveillance took place or you have grossly mischaracterized it, do you have any concerns that you might have imputed grave misconduct to your predecessor—in the language of New York Times v. Sullivan—with “‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not”?
10. If so, have you or your counsel considered the question of whether a tweet from the @realDonaldTrump Twitter account that contains a slander or a libel is an official presidential act for which you are immune from liability under Nixon v. Fitzgerald or whether it is personal conduct for which you might be subject to suit under Clinton v. Jones?
Wouldn’t it be nice to have direct answers to these? I am not holding my breath.
