I en (som vanligt) märklig twitterstorm skriver president Trump att han blev avlyssnad av Obama i oktober. Det föranledde Benjamin Wittes vid Brookings Institution att igår ställa tio välmotiverade frågor till Trump:
- ”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?
- If so—that is, if you have executive branch information validating that either a FISA wiretap or a Title III wiretap took place—have you reviewed the applications for the surveillance and have you or your lawyers concluded that they lack merit?
- If you know that a FISA wiretap took place, are you or were you at the time of the application, an agent of a foreign power within the meaning of FISA?
- Was anyone else working in Trump Tower an agent of a foreign power within the meaning of FISA?
- 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?
- Was anyone else working in Trump Tower engaged in criminal activity that would support a Title III wiretap or might another person have previously engaged in criminal activity that might legitimately be the subject of a Title III wiretap?
- If you were tweeting not based on knowledge received as chief executive of the United States, were you tweeting in your capacity as a reader of Breitbart or a listener of Mark Levin’s radio show?
- If so, on what basis are you confident the stories and allegations in these august outlets are true and accurate vis a vis the activity of the government you, in fact, now head?
- If you learned of this alleged surveillance from media outlets, did you or anyone on your staff check with any responsible law enforcement or intelligence officials or agencies before making public allegations against your own government?
- What exactly does any of this have to do with Arnold Schwarzenegger?”
Och idag ställer han ytterligare tio frågor:
- ”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?
- Do you agree that, to whatever extent no such surveillance was taking place, the fact of its absence—which is to say the fact that you were either lying or making up facts or repeating allegations published in Breitbart with no idea of their accuracy—is also not classified?
- Will you similarly declassify any material the underlying FISA application may contain so that the public can understand the basis or lawlessness of the alleged Obama surveillance of your campaign and business?
- You say that there was “Nothing found” in the wiretapping of Trump Tower. Are you thereby declassifying the fruits of any surveillance that may have taken place? Will you?
- You say that the surveillance was “Turned down by court earlier.” Are you thereby declassying the fact of and waiving any privacy interests in any earlier application to the FISA Court or to any federal district court under Title III—and in any rulings that any court may have made on the subject?
- 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?
- To whatever extent you have revealed FISA surveillance in a series of tweets, was your National Security Adviser, Gen. H.R. McMaster, aware that you intended to declassify sensitive material about a foreign counterintelligence investigation that is by most accounts still ongoing?
- You say that you “bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!” Are you planning to bring suit against Obama or anyone else under either 50 U.S.C. § 1810—which provides for civil remedies for “[a]n aggrieved person, other than a foreign power or an agent of a foreign power . . . who has been subjected to an electronic surveillance”—or under 18 U.S.C. § 2520—which provides that “any person whose wire, oral, or electronic communication is intercepted . . . in violation of [criminal wiretap law] may in a civil action recover from the person or entity, other than the United States, which engaged in that violation”?
- 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”?
- 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?”
Mer i ämnet kan läsas av Julian Sanchez vid Cato Institute här.