Is Rice's 'Crime' the New 'Wire Tapping'?

by ANDREW C. MCCARTHY April 14, 2017

She apparently abused her power. His own worst enemy, Trump called it criminal, giving the media fodder for weeks.

While news seems to be breaking in every direction, there are two storylines in the continuing saga of allegations about Russian meddling in the 2016 election and Obama-administration spying on Team Trump.

The first, as Victor Davis Hanson has outlined, involves the recusal - at least temporarily - of House Intelligence Committee chairman Devin Nunes. You have to admire the Democrats' moxie: Having spent months exploiting unauthorized disclosures of classified information to undergird their dark (but thus far unsupported) claims of Trump-campaign collusion in Russia's machinations, they now force a House Ethics Committee investigation against Nunes based on claims that he "may have made unauthorized disclosures of classified information."

Nunes vehemently denies the allegation as "entirely false and politically motivated." Still, had he not stepped aside until the ethics probe was completed, there would have been calls to remove him, which would have put Speaker Paul Ryan in the hot seat. That's something neither Ryan nor Nunes would want.

More importantly, as Nunes admirably recognized, it would have been a major distraction from the political-spying aspect of the Intelligence Committee investigation. By stepping aside, Nunes will be able to defend himself without derailing the committee's work. Meanwhile, he has bequeathed leadership of the probe to Representative Mike Conaway (R., Tex.), with assistance from Representatives Trey Gowdy (R., S.C.) and Tom Rooney (R., Fla.). Forge ahead, gents.

The other development involves yet another impulsive outburst from President Trump. During a news conference at which he appeared jointly with Jordan's King Abdullah II (aside: why do they put Roman numerals after Arabic names?), Trump was asked whether he thought Susan Rice, Obama's national-security adviser, had committed a crime by unmasking the identities of Trump-team members - i.e., American citizens who were caught up in foreign intelligence collection. He replied, "Do I think? Yes, I think." Our media-obsessed president further conveyed his sense that the alleged political spying "is one of the big stories of our time."

Trump detractors pounced. The Washington Post, for example, ran its report under the headline "Susan Rice may have committed a crime, Trump says without providing evidence." Trump's latest remark is thus portrayed as a replay of his much-derided March 4 tweets - the ones accusing President Obama of having "my ‘wires tapped' in Trump Tower."

Both outbursts were ill considered, but they're not all that similar. This time, Trump was answering a journalist's loaded question, not railing on his own. Still, he should have passed - hard as that seems to be for him.

Supporters excuse him, reasoning that he was just stating his opinion as a non-lawyer and should be cut some slack. After all, there are lawyers in the commentariat who contend that Rice's actions were criminal. To the contrary, presidents should never render opinions about conduct that could be grist for federal investigations. It has nothing to do with legal training; it's about being president - the head of the executive branch, responsible for enforcing the laws faithfully and promoting the integrity of the criminal-justice system.

If a person is charged after a president publicly opines that she is guilty, she inevitably asks the court to throw out the case on the ground that the process is tainted - i.e., the chief executive's comments are portrayed as an implicit direction to the prosecutor, an executive-branch subordinate, to file an indictment regardless of any lack of evidence. Such motions to dismiss an indictment are unlikely to succeed, but they cause problems for the prosecution and tarnish the president. Recall that President Obama was analogously criticized, and rightly so, for commenting that Hillary Clinton's e-mail scandal was being blown out of proportion, signaling to his subordinates that she should not be charged - and, of course, she wasn't.

I do not believe Trump's expressed belief that Rice committed a crime is a big deal, but then again, I didn't think his wiretap tweets were that big a deal - apart from seeming unhinged. I was clearly wrong about that, an error caused by analyzing them as a lawyer, not a political strategist.

To my mind, commentary about the tweets has been wildly off base. Contrary to popular belief, Trump did not claim that Obama personally ordered an illegal wiretap. The reasonable interpretation of the 140-character rants is that the Obama administration orchestrated electronic surveillance on Trump at Trump Tower; the president did not say that the required legal processes for wiretapping, including court authorization, were bypassed. When I was a prosecutor, it was common during legal arguments for a judge to say to me, "You wiretapped him." I never took this to mean the judge thought I personally had either physically tapped the lines or directed that it be done without a warrant. I took it as a shorthand judicial acknowledgment that the Justice Department and the FBI, in one of my investigations, had sought and obtained electronic-surveillance authorization from a federal court on a showing of probable cause.

Trump's critics are overhyping what he got wrong, in the hope that you'll overlook what he got right.

To be clear: The more realistic construction of Trump's tweets that I am suggesting does not make the tweets accurate. Nor does it make any less explosive the allegation of political spying that the tweets plainly leveled. But it is overwrought to insist that, in addition to accusing the former president of abusively monitoring him, Trump was also alleging that the monitoring was illegal.

You may counter, based on Trump's comments about Rice, that he probably doesn't know the difference. Fair enough . . . but his legal acumen is not the point. There is growing evidence that even though Trump's particular allegation was inaccurate, his claim, in broad scope, is valid: The Obama administration did use its foreign-intelligence-collection powers - and perhaps its law-enforcement powers - to investigate and monitor the Trump campaign and transition. Trump's critics are overhyping what he got wrong, in the hope that you'll overlook what he got right.

Two things need to be said about that. First, as I have contended, it would not necessarily have been wrong, much less scandalous, for the Obama administration to have investigated the Trump team. The question of propriety (and thus of scandal) depends on whether the investigation was (a) driven by, and kept within the bounds of, good-faith suspicions of misconduct, or (b) political spying conducted under the pretext of a proper investigation. That, in turn, hinges on whether there really were fact-based suspicions of Trump-camp collusion with Russia, and whether any related intelligence collection was tightly connected to that suspicion - as opposed to generalized, non-Russia-related snooping, which Nunes has suggested and recent reporting seems to corroborate.

We will not know which is the case - or if, as I suspect, it is a little of both - until the investigation proceeds and the relevant documents are revealed. On that score, given that the president has unilateral authority to declassify intelligence reports, it continues to be puzzling that the administration has not publicized any reports backing up its political-spying allegations - or at least provided unclassified summaries that explain the pertinent information while withholding any sensitive intelligence (including methods and sources).

The second thing that needs to be said involves a difference of opinion I have with my friend and colleague David French - or at least some amplification of a valid point he has made. David contends that Trump supporters frequently damage their credibility by rushing in to defend Trump's sundry exaggerations and inaccurate (or false) statements. In some contexts, this point is well taken. In connection with the infamous wiretapping tweets, it is less persuasive.

As I've argued above, Trump's accusation in the tweets is wrong, but it is not as scurrilous as it has been made out to be. More to the point, while Trump clearly has diehards who will defend him on just about anything, the political-spying story was not spurred by a defense of Trump's tweets. I started writing about it two months before the tweets.

By then, there were already plenty of indications about it in media reporting (which, to be clear, David has forthrightly detailed). I was bewildered, as I observed, by the difference between the outrage that ensued when Trump merely threatened (at a debate) that a Trump administration would have Hillary Clinton investigated and the deafening silence when it emerged that the Obama administration had actually been investigating Trump. Obviously, Trump's tweets riveted attention to the matter in a way that a columnist's meanderings could not - at least, not this columnist. But Trump was curiously late to the potential-political-spying party (especially if it is true, as his March 4 tweets state, that he had just found out about it).

If past is prologue, Trump's assertion that Rice has committed a "crime" will give the media fodder for weeks of tendentious commentary about whether penal laws were broken. That should be beside the point, since - you heard it here first - the scandal (if it proves to be a scandal) is about abuse of power, not criminality. But thanks to the president's intemperance, his detractor legions will persist in demonstrating that there was no crime; they will use that demonstration to argue that there is nothing to see here. And it might well work - abstruse foreign-intelligence procedures can exhaust even analysts with a firm grasp of them.

Shooting (or tweeting) from the hip may work for a firebrand candidate, particularly one in the populist, anti-establishment-outsider mold. It does not work for a president. It can make a president his own worst enemy.

A version of this piece also appeared on National Review  Online.

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FamilySecurityMatters.org Contributor  Andrew C. McCarthy is a senior fellow at the National Review Institute, author of Willful Blindness: A Memoir of the Jihad and blogs at National Review Online's The Corner. 

 

 


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