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Congress poised to investigate Trump's wiretap claims

President-elect Donald Trump, left, and President Barack Obama arrive for Trump's inauguration ceremony at the Capitol in Washington, Friday, Jan. 20, 2017. Trump, a real estate mogul and reality television star who upended American politics and energized voters angry with Washington, will be sworn in as the 45th president of the United States, putting Republicans in control of the White House for the first time in eight years. (AP Photo/J. Scott Applewhite, Pool)
President-elect Donald Trump, left, and President Barack Obama arrive for Trump's inauguration ceremony at the Capitol in Washington, Friday, Jan. 20, 2017. Trump, a real estate mogul and reality television star who upended American politics and energized voters angry with Washington, will be sworn in as the 45th president of the United States, putting Republicans in control of the White House for the first time in eight years. (AP Photo/J. Scott Applewhite, Pool)
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Members of Congress appear ready to investigate allegations that the Obama administration may have authorized surveillance on Donald Trump during his candidacy, a claim the president made over Twitter on Saturday.

Without providing any evidence or context for the accusation, President Trump tweeted, "Terrible! Just found out that Obama had my 'wires tapped' in Trump Tower just before the victory. Nothing found." He sent out three more messages on the subject questioning whether it was legal for "a sitting President to be 'wire tapping' a race for president prior to an election?"

By early Sunday morning, White House press secretary Sean Spicer called on Congress to investigate Trump's wiretap claims into their investigation into Russian election interference to determine "whether executive branch investigative powers were abused in 2016." He added that "neither the White House nor the President will comment further until such oversight is conducted."

The allegations made by the president are extremely serious — if they are true. And despite round the clock media coverage of the story, there are very few actual facts that have been made public to back up Trump's "Nixon/Watergate" claims against former President Obama.

In fact, it appears Trump's tweets stemmed from a Breitbart news story published on Friday. The story included analysis from conservative radio show host Mark Levin who outlined a series of open-source media reports that the Obama Department of Justice sought twice to obtain a Foreign Intelligence Surveillance Act (FISA) Court order to monitor communications involving Donald Trump and several campaign advisers. The request filed in October was reportedly rejected, while another filed in August was approved. Those original claims, citing unnamed government officials, were first published by HeatStreet, a UK-based publication, citing two sources "with links to the counter-intelligence community."

Former Director of National Intelligence (DNI) James Clapper rejected the claim, saying, "For the part of the national security apparatus that I oversaw as DNI, there was no such wiretap activity mounted against the president-elect at the time, or as a candidate, or against his campaign."

FBI Director James Comey also shot down the president's claims. On Saturday, Comey asked the Justice Department to publicly correct the record and reject Trump's wiretap claim as false, according to senior U.S. officials quoted by the New York Times.

President Obama's spokesperson Kevin Lewis denounced the rumors of wiretapping as "unequivocally false," issuing a statement that "neither President Obama nor any White House official ever ordered surveillance on any U.S. citizen."

Yet, without any evidence to go on, members of Congress have said that they will investigate the wiretap rumors and the new claims will be incorporated into the ongoing investigation in the House and Senate Select Committees on Intelligence.

Chairman of the House Intelligence Committee, Devin Nunes (R-Calif.) issued a statement affirming that his committee would be looking into the government's response to Russian election interference, which would encompass surveillance on U.S. citizens or political campaigns. "As such, the 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.”

During the lead-up to former national security adviser Mike Flynn's resignation, reports emerged of a Justice Department transcript of an intercepted communications between Flynn and Russian ambassador Sergey Kislyak. The existence of such transcript was highly publicized and would at least imply foreign intelligence surveillance of either of Flynn or the Russian ambassador.

On the Senate side, Intelligence Chairman Richard Burr (R-S.C.) has been less clear about expanding the scope of the investigation into Russian election interference, saying only that his committee "will follow the evidence where it leads."

Other Republicans on the Senate Intelligence Committee appear eager to get to the bottom of the claims, whether that means the accusations against President Obama are proven true or false. So far, none of the members of the committee have publicly confirmed seeing any indication that the Obama administration pursued a FISA Court order targeting the Trump campaign, nor have they seen information suggesting the Trump team colluded with Russian officials.

Sen. Marco Rubio of Florida provided reassurance that the public, or at least their representatives in Congress, may soon learn whether the wiretapping claims are true or false.

"If it's true, obviously, we're going to find out very quickly. And, if it isn't, then, obviously, he'll have to explain what he meant by it," Rubio said in an interview with CNN. "I'm not sure what the genesis of that statement was, but I imagine we're going to learn more about it here over the next few days, one way or the other."

Sen. Susan Collins of Maine outlined her expectation that the White House, after calling for the congressional investigation, will provide members with any intelligence President Trump may have that is relevant to the wiretapping accusation.

"It would be more helpful if he turned over to the Intelligence Committee any evidence that he has," Collins said on Face the Nation. She added that she has so far "seen no evidence" supporting Trump's tweets, "but we are at the very early stages of our investigation."

Sen. Tom Cotton of Arkansas (R) expressed confidence that Trump's allegations will be included in the ongoing intelligence inquiry into the 2016 election. The committee agreed earlier this year to an extensive, bipartisan investigation of the Russian election interference and any contact between Russian officials and members of the presidential campaigns. The results of the intelligence probe will be made public to the greatest degree possible, including holding open hearings.

In addition to the bicameral intelligence probes, Rep. Jason Chaffetz (R-Utah) suggested on Monday that the House Oversight Committee will provide additional support for these investigations. Chaffetz was personally subjected to what he considers improper surveillance by the Obama administration in recent years, when members of the Secret Service leaked embarrassing information about the representative who previously applied for a job with the agency.

"We’re going to look hard at this," Chaffetz said, adding that "the Obama administration has been notorious on this type of stuff."

The congressman cited the prosecution of Fox News reporter James Rosen under the Espionage Act, the role of the IRS in targeting conservative political groups for audits, and Chaffetz's own experience of having his personal records tapped into "illegally," all of which took place during Obama's second term in office.

"This stuff does happen and it's not necessarily done the legal, lawful way," Chaffetz explained. "So yeah, we're going to take a look at it."

On the Democratic side, many members denounced President Trump's wiretap claims, but are still committed to moving ahead with the intelligence investigation.

While calling Trump's tweets "reckless" and "unsubstantiated," ranking Democrat on the intelligence committee, Sen. Mark Warner (D) of Virginia, emphasized the importance of the ongoing investigation. "There is nothing I have done in my life in public that is as important as trying to get this investigation done right and bipartisan and get the facts out to the American people," he said.

Senate Minority Leader Chuck Schumer, part of the Gang of 8, used the chaos created by Trump's claims to directly question the ability of the Senate Intelligence Committee to lead an impartial investigation of possible Trump ties to Russia. "I have some doubts about Chairman Burr," Schumer said before demanding the appointment of a special prosecutor to investigate the matter.

Schumer went on to paint the wiretapping allegation as an unwinnable battle for Trump, noting that regardless of whether his claims are true or false, "the president's in trouble."

"If he falsely spread this kind of misinformation, that is so wrong. It's beneath the dignity of the presidency," Schumer said. "On the other hand, if it's true, 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."

Rep. Joaquin Castro (D-Texas) pointed to the complete lack of evidence in Trump's claims, saying on Monday, "I have seen no evidence to substantiate the President’s claims ... The White House has provided no facts to support President Trump’s rogue comments."

Gaining access to the evidence to substantiate or refute Trump's claims that Obama had Trump Tower bugged during the 2016 election will be an incredibly difficult feat, especially because of the highly secretive nature of the FISA Court.

The process for releasing FISA Court orders and opinions is extremely selective and really only got started after the passage of the 2015 USA FREEDOM Act, explained William Banks, Syracuse University law professor and director of school's national security and counter-terrorism institute. Information is released either through annual reports, which include the gross number of requests and fulfilled FISA Court orders, or from time to time the court will release its opinions, if it is deemed in the public interest.

Under the law, not even the president can access current or previous court orders. "These orders are secret. They are deliberated in the court in a secret proceeding, and the president is not privy to them," Banks stated. In that respect, the president could not have learned about the alleged FISA Court through official channels. "It just cant happen," the professor argued. "So what he's doing here is repeating something he read in Breitbart."

Reports claiming that Trump learned about the FISA Court orders through his senior White House counsel are also specious. The New York Times quoted a senior White House official over the weekend claiming the Donald F. McGahn was trying to secure access to what he believed was a FISA Court order authorizing surveillance related to Trump and his associates. Banks reacted to the report saying, "That would be extraordinary. The law does not provide for it."

Because Congress created the FISA Court through legislation, it does have more privileged access to provide oversight. But that does not necessarily mean they will discover a court order targeting someone in Trump's circle. It is possible, though, that someone within Trump's campaign or administration had their communications swept up under the court's authority to monitor an individual believed to be a foreign power or an agent of a foreign power.

"The idea is the targets of surveillance never know they've been targets. That's what intelligence collection is all about," Banks noted. "The only way the targets ever learn is they are eventually accused of a crime."

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So far the Justice Department has not released any information to satisfy the White House, specifically that it does not believe Comey's rejection of the wiretap claim. As long as the wiretap rumor cannot be confirmed or denied and the facts aren't even available to the White House, it is a situation like Alice in Wonderland, where nothing is what it is, because everything is what it isn't.

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