Trump’s Wiretapping Charge Could Contain Some Explosive Truth

Michael Flynn resigned as Donald Trump’s national security adviser on Feb. 13. (Gage Skidmore / CC BY-SA 2.0)

“Let me tell you: You take on the intelligence community—they have six ways from Sunday at getting back at you.”

—Senate Minority Leader Chuck Schumer to MSNBC host Rachel Maddow, Jan. 3, 2017

Chuck Schumer’s comments should have sent a chill down the spine of all law-abiding American citizens concerned about the future of their country, and not in the way Rachel Maddow, the Trump-bashing MSNBC host, was aiming for when she invited the Democratic senator from New York, who also serves as the Senate minority whip, to appear on her show.

The context of Schumer’s comments was related to a war of words raging between then-President-elect Donald Trump and the United States intelligence community about allegations that Russia sought to influence the outcome of the 2016 presidential election in favor of Trump. The Trump campaign likened the intelligence report about Russian electoral interference to the CIA’s deeply flawed assessment about Iraqi weapons of mass destruction on the eve of the invasion and occupation of Iraq by U.S.-led forces in 2003. Prior to Schumer’s appearance on “The Rachel Maddow Show,” Trump himself tweeted disparaging remarks about an “intelligence briefing on so-called Russian hacking” being delayed, adding, “perhaps more time needed to build a case.”

Schumer’s comments appeared to be a not-so-veiled threat to Trump that if he took on the dark forces of America’s intelligence services, he would be doing so at his own risk. Ten days later, this threat became reality when an unnamed “senior U.S. government official” leaked intelligence information to The Washington Post, alleging that Trump’s pick for national security adviser, Michael Flynn, spoke with the Russian ambassador to the United States, Sergey Kislyak, on Dec. 29, 2016—the same day President Obama expelled 35 Russian diplomats in retaliation for alleged Russian interference in the 2016 presidential election and announced a new round of economic sanctions linked to this interference. The existence of this phone call, when combined with other allegations concerning Flynn’s close ties to Russia and the fact that Flynn was less than forthright when discussing the matter with Vice President Mike Pence, doomed Flynn’s tenure as Trump’s national security adviser. [Editor’s note: On Monday, the Kremlin alleged that Kislyak also met with Hillary Clinton’s team during the presidential campaign.]

Flynn’s conversation with Kislyak took on a life of its own. Flynn’s initial denial about sanctions not having been a subject of discussion, echoed by Pence, became a topic of widespread media speculation that Flynn had violated the Logan Act, a 1799 law that prohibits private citizens from engaging in the foreign affairs of the United States without its permission. There was even speculation that Flynn—who in 2015 had a paid speaking engagement in Russia, sponsored by RT (a state-run Russian television network), and was seen in a photograph seated next to Russian President Vladimir Putin at a gala dinner—somehow colluded with the Russians in their efforts to tip the 2016 presidential election in Trump’s favor.

Media speculation and unsubstantiated allegations took a back seat when, on Jan. 26, then-acting Attorney General Sally Yates told White House counsel Don McGahn that, contrary to Flynn’s public claims, the issue of economic sanctions had in fact been a subject of discussion between Flynn and the Russian ambassador. Yates asserted that Flynn’s distortion of the truth left him vulnerable to blackmail and as such Flynn posed a national security threat. President Trump was briefed on the Yates information, and McGahn subsequently conducted an internal inquiry that concluded Flynn had broken no laws in his contacts with the Russian ambassador.

On Feb. 9, The Washington Post, acting on anonymously sourced intelligence leaks, reported that nine former and current U.S. government officials had confirmed the existence of a transcript that showed Flynn and Kislyak had indeed discussed sanctions during their Dec. 29 phone conversation, but not in any worrisome context. According to the transcript, Flynn had not made any promises about the lifting of sanctions imposed on Russia by the Obama administration, but rather indicated that such sanctions would not necessarily be continued under a Trump administration that was seeking to improve U.S.-Russian relations. The internal White House investigation had been vindicated—Flynn had not committed a crime or behaved in any inappropriate manner. What he had done, however, was mislead the vice president, and for this action Flynn was forced to resign.

The scandal surrounding Flynn’s resignation led House Intelligence Committee Chairman Devin Nunes, a Republican, to claim that leaks about Flynn’s phone calls only could have come from the “very highest levels of the previous administration.” Trump upped the ante by accusing former President Barack Obama, via tweet, of personally ordering wiretaps against Trump and his campaign. The fallout from Trump’s assertion has been explosive, with many pointing to the unsubstantiated nature of his accusation as evidence of the new president’s lack of fitness for office. Lost in the noise and confusion of the outrage among Democrats and Obama-era intelligence officials (and some Republicans) that followed Trump’s incendiary charge, however, is that the existence of the Flynn transcript sustains the general premise, if not the precise specifics, of the Trump wiretap claim.

The existence of a transcript of a conversation between Flynn and Kislyak, in fact, indicates that Flynn was either the subject of a wiretap warrant authorized under the Foreign Intelligence Surveillance Act (FISA) of 1978, or a Title III action under the Omnibus Crime Control and Safe Streets Act of 1968 (or a specific action ordered by the president and certified by the attorney general, bypassing the need for a FISA warrant, pursuant to Chapter 36 of Title 50 of the U.S. Code), in which case Trump’s claims of his campaign being “tapped” by the Obama administration are not as far-fetched as some think.

Another possibility is that Flynn’s conversations were recorded as part of legitimate intelligence collection routinely undertaken by U.S. intelligence agencies of foreign entities (such as the Russian ambassador to the United States) who are deemed to be of ongoing intelligence interest. Such collection activity has been going on for decades, and the procedures involved are well known to all who participate in such, especially with regard to protecting the rights of any American citizens who are caught up in the collection. Once it becomes known that the conversation of an American citizen is being collected by U.S. intelligence agencies, the act of recording that conversation must cease immediately. If for any reason the conversation was recorded (i.e., automated collection), then specific measures must be taken after the fact to “minimize” any and all information that would identify the American citizen in question.

There is simply no provision under U.S. law, above and beyond a FISA warrant, Title III action or direct presidential intervention certified by the attorney general that would permit Flynn’s conversations with the Russian ambassador to be recorded, evaluated and acted on by U.S. government officials such as Yates. The mere fact that a transcript of Flynn’s phone conversations exists represents a violation of U.S. law. That U.S. government officials accessed these transcripts and acted on them in an official capacity expands the scope and scale of this legal transgression by an order of magnitude. The leaking of the existence and contents of the Flynn transcript to the media by U.S. government officials for political purposes is as reprehensible as it is illegal, and represents a frontal assault on the very foundation of American society, grounded as it is in the principle of protecting individual civil liberties.

The notion that U.S. government officials would knowingly and willfully violate laws designed to protect constitutionally protected rights should rightfully outrage everyone. That these violations were committed for partisan political purposes designed to undo the lawful results of a binding election (for instance, by undermining the appointment of a controversial and unpopular national security adviser) represents an attack on the very democratic processes that define the United States.

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The fact that this transcript exists, however, represents a curiosity. Intelligence collection against a target like the Russian ambassador is not a “one-off” activity subject to errors of this nature and magnitude. The Russian ambassador has more than likely been the subject of a standing intelligence collection requirement over the course of many years. Given the fact that the Russian ambassador is in near-constant contact with American citizens, including members of Congress and other officials, the U.S. intelligence community is not only well versed but also well practiced in the legalities and methodologies associated with the “minimization” requirements mandated by law when the Russian ambassador speaks with a U.S. citizen.

By his own account, Flynn took Kislyak’s call from a beach-side resort in the Dominican Republic, using a cellphone that apparently made use of encryption (the Washington Post story speaks of “digital packets” of information from Flynn’s phone call with Kislyak being intercepted by the FBI). The Post indicates that the FBI conducted the interception, and that the agent involved prepared a “brief intelligence report” based upon the contents of that call, indicating that the FBI had defeated any encryption used by Flynn. While such a report would be the norm, it would, in conformity with applicable law, contain no information that could identify Flynn as being a party to that call. In short, the FBI intelligence report could not have served as the basis for Yates’ White House intervention on Jan. 26. The FBI would have been prohibited by law from producing such a report, and Yates would have been prohibited from taking any official action based upon the existence of such a report.The existence of a Flynn-Kislyak transcript that identifies Flynn by name represents a deviation from the normal practices of U.S. law enforcement and intelligence that is not readily explained. If the Flynn conversation was collected under FISA authority, then Trump is correct in his charge that his campaign was the subject of wiretaps authorized by the Obama administration. To date, the existence of any such FISA authority has been denied by U.S. officials, including former Director of National Intelligence James Clapper.

Likewise, if the Flynn transcript was the byproduct of foreign intelligence collection activities by U.S. intelligence agencies, the fact that it exists in a form that identifies an American citizen by name would mean that the transcript was produced outside channels routinely subjected to the kind of legal oversight designed to protect the constitutional rights of American citizens. The Washington Post states that the FBI, and not the CIA or the National Security Agency, was responsible for intercepting the Flynn conversation with Kislyak. It is highly unlikely, however, that the FBI, well versed in American law as it is, would be involved in the preparation of a transcript of an intercepted conversation that so blatantly violated the constitutional rights of an American citizen, let alone allow the existence of that conversation to become public.

There are some alternative explanations for the existence of the Flynn transcript that do not involve the FBI engaging in massive violations of the law. The United States routinely coordinates with the intelligence services of allied nations regarding the collection of conversations of persons of interest, including American citizens. If a conversation was collected by a non-U.S. intelligence agency, such as the British or Dutch intelligence services (nations that have been mentioned in reports about Trump-related intelligence shared with the United States), it would not be subjected to minimization at the source of the collection. Once such a transcript came into the possession of an American law enforcement or intelligence agency, however, minimization standards would have to be applied by the agency receiving the intelligence report.

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It seems likely that the transcript of Flynn’s phone call with Kislyak was produced from a collection activity operating outside FBI control, and probably operating outside U.S. soil—for instance, from the Dominican Republic itself. The U.S. intelligence community, in coordination with a supporting government’s intelligence service, has the capacity to intercept Flynn’s phone calls in a manner that does not implicate either the FISA framework or other intelligence collection activities subjected to legal and legislative oversight.

The most likely candidate for this sort of role would be Britain’s Government Communications Headquarters (GCHQ)—the equivalent of America’s NSA. Indeed, the surprise resignation of the director of GCHQ, Robert Hannigan, on Jan. 23—three days before Yates presented evidence of Flynn’s intercepted conversation to the White House, has led some circles to speculate that GCHQ played a role in the interception of the Flynn-Kislyak conversation. GCHQ has long been known to target the communication cables used by Cable & Wireless Communications, a Caribbean service provider that operates in the Dominican Republic, where Flynn’s beach-side cellphone conversation took place. Information collected from these cables would be stored at GCHQ in the U.K., and as such be accessible by GCHQ analysts. It seems increasingly likely that Hannigan played a role in retrieving the Flynn-Kislyak intercept and turning it over to the United States.

If Hannigan had turned this transcript over through official channels, it would have been subjected to mandatory minimization under U.S. law and, as such, could not have been the basis of the Yates intervention on Jan. 26. This eliminates the FBI, the Department of Justice and the NSA as viable conduits for any Flynn-related intelligence sourced to GCHQ. If, however, Hannigan provided the Flynn transcript to the CIA using back channels, then John Brennan, CIA director under Obama, emerges as the leading culprit behind the leak—breathing life into Nunes’ assertion that the Flynn leak could only have come from the “highest levels” of the Obama administration.

Hannigan’s resignation from GCHQ was of such a sudden nature that the only plausible explanation is the kind of scandal that would be generated by the revelation of a GCHQ role in facilitating the abuse of intelligence information for the purpose of undermining the legitimacy and authority of the newly elected president of the United States. Hannigan’s resignation occurred a mere three days prior to British Prime Minister Theresa May’s visit to the White House on Jan. 26—the same day Yates briefed White House counsel on the Flynn transcript. A simple “connect the dots” exercise would have May cleaning house before any meeting with Trump in which the fact of such an explosive relationship would have most likely been raised.

Trump’s incendiary, and still publicly unsubstantiated, claim that the Obama administration ordered wiretaps of his campaign has attracted the attention of some members in Congress. Nunes himself has stated that his committee “will make inquiries into whether the government was conducting surveillance activities on any political party’s campaign officials or surrogates, and we will continue to investigate this issue if the evidence warrants it.” Sens. Lindsey Graham and Sheldon Whitehouse have requested that the Justice Department provide the Senate Judiciary Committee’s Subcommittee on Crime and Terrorism with “copies of any warrant applications or court orders … related to wiretaps” of the Trump campaign, noting that they “would take any abuse of wiretapping authorities for political purposes very seriously.”

By focusing their collective efforts on warrants and court orders, however, the various congressional oversight committees the American people count on to conduct effective, bipartisan oversight of U.S. law enforcement and intelligence activities may be barking up the wrong tree. What the senators and House members should be asking for is an accounting of all interaction between the CIA and GCHQ that transpired between Dec. 29, 2016, and Jan. 26, 2017, with a particular focus on the activities of both Brennan and Hannigan during this time. Both men should be subpoenaed, as well as Yates and any and all officials from the CIA, FBI, Justice Department, NSA and GCHQ who were involved in any manner with the production and provision of the Flynn transcript to American intelligence, and its subsequent use by U.S. government officials.

The transcript of Flynn’s telephone call with Kislyak needs to be forensically reverse-engineered, so that the entire chain of custody, from collector to consumer, and every step in between, is carefully vetted and assessed. At a minimum, such an investigation should produce indictments of all officials who knowingly violated Flynn’s constitutional right to privacy by possessing and releasing to the media information that was unlawfully obtained and retained by U.S. authorities. At most, the investigation will uncover an abuse of authority to use illegally acquired intelligence in a manner that would make the Watergate scandal pale by comparison. It also could uncover wrongdoing by Obama if he had in any way, shape or form been briefed on the existence of the Flynn transcript and failed to suppress and investigate its existence.

Schumer has indicated that such an investigation would spell bad news for Trump. “If it’s true,” Schumer said, “it’s even worse for the president. Because that means that a federal judge, independently elected, has found probable cause that the president, or people on his staff … have probable cause to have broken the law or to have interacted with a foreign agent.”

With all due respect to Schumer, he couldn’t be more wrong. What a genuine investigation will show is that the American people have a means of countering anyone who would deign to abuse their powers and that no one—president, senator, candidate or “deep state” operative—is above the law. Even Schumer, as much as he is opposed to Trump’s presidency, should support that.