The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Surveillance Sauce for the Goose


Having trouble understanding what President Trump and Rep. Nunes are banging on about? Try putting the shoe on the other foot…

It's 2020. Kamala Harris finishes a close second in New Hampshire, beating expectations that Elizabeth Warren would sweep her neighboring state (and its shared media market). Harris roars into South Carolina, where she suddenly leads in the polls with a message of repudiating what she calls the Trump administration's dangerous foreign brinksmanship.

Whatever you call it, you can't call it dull. President Trump has forced Iran to renegotiate the nuclear deal by the simple expedient of expanding US sanctions to include the seizure and impoundment of any tanker carrying Iranian oil. The oil market remains stable, buoyed by record US oil and gas production. But the move prompts a diplomatic rupture and some tense maritime confrontations with India and China. Undeterred, the President says North Korea is next in line for what he calls, "Sanctions that work. Unlike the last guy's. Not a leader!"

But it will only take one foreign mishap to make Harris tough to beat. She's fresh and virtually untouched by Warren's surprised oppo research team. The Trump team vows that it won't be caught similarly flat-footed.

In July, the intelligence community picks up rumors that intelligence services from Iran, North Korea, and China are working together to ensure a Harris victory in November.

The President erupts at an NSC meeting. "This is intolerable! I want to know everything about foreign interference in our election—and whether any Americans are colluding with Iran. This is a top priority for all of our counterintelligence agencies."

Attorney General Sessions approves FISA wiretap applications for every known or suspected Iranian foreign agent, with special focus on anyone known to have contacted the Harris campaign. The surveillance reveals that Harris campaign officials talked regularly to Iranian agents and even asked for help in formulating her famous "I will prosecute the President as a war criminal" speech.

The FBI circulates the transcripts to the National Security Council and high-ranking White House officials. The identities of Harris campaign staff are initially "masked", but many officials, including Steve Bannon, insist on knowing the names "to determine how deeply Iran's influence operation has penetrated the Harris organization."

Within weeks, there is a swirl of public speculation about Harris and Iran, but she successfully rejects it as a "diehard Warren delusion." With more passion than grammar, her top foreign policy adviser denies the rumors "categorically and irrefutably."

The nominating convention is a love fest. Three weeks later, transcripts of the Harris foreign policy guru's conversations with Iranian operatives are leaked by government sources. Within a day, bumper stickers appear, saying, "Was it treason? Categorically and irrefutably!"

With that as her introduction to the American public, Harris's campaign sputters and collapses.


Faced with that scenario, who thinks the press would be mocking Harris's claim that her campaign was wiretapped by its enemies? So why are reporters mocking Trump's?

Fact is, there's a very real problem at the bottom of President Trump's complaints. The Obama administration decided to conduct what was bound to be one-sided surveillance. Any evidence the investigators turned up would hurt the President's adversary, not his side. The same would be true of any leaks. And widespread distribution of intelligence from the investigation would dramatically increase the risk that his adversary will be hurt by leaks. If you're the President, or anyone in his administration, what's not to like?

Who made the decision to expose the Trump campaign to this scrutiny and the risks that came with it? Thanks to FISA, national security surveillance decisions must be made mainly by political appointees. This is meant to be a protection for civil liberties but it's the reverse in a partisan context. I'm sure that the Trump campaign would rather have had the decision to launch a FISA tap made by the first two names in the DOJ phone book than by Loretta Lynch and Sally Yates. (I realize that Team Trump is now focusing more on surveillance of what might be called "institutional foreign agents"—people who don't hide their allegiance to foreign nations. The Mike Flynn transcript may have come from such surveillance, as may much of the other "incidental" collection of Trump campaign contacts that Rep. Nunes briefed the President on. Such surveillance goes on with or without an investigation, but distribution of the product would likely be wider once an investigation is opened.)

All that said, appreciating the force of President Trump's concerns does not mean we shouldn't have done the investigation. In my view, we have no choice but to investigate and respond aggressively when other countries interfere with our elections. But we also ought to recognize and take action to limit the partisan temptations that such investigations will inevitably offer. Because if anything is utterly predictable about the 2020 election, it's that foreign governments will try to influence it and that partisan passions will be high. So the surveillance shoe is going to be on someone's foot that year. Ditto for 2024 and 2028 and 2032…

So we might as well try to draw some lessons from the Trump team's unhappiness instead of pretending that their grievances are entirely illegitimate. Without being able to offer a grand solution, I can think of things that would ameliorate the risk. Maybe the government should be required to identify in advance national security investigations likely to have an impact on political officials or candidates and take special steps to depoliticize them. Perhaps political appointees should recuse themselves from the decision to launch such investigations. And the anonymity of US persons who are also surveilled in such investigations could be protected by special limits on distribution of the masked intelligence and by requiring special assurances from those who want to unmask US persons.

I can't pretend that these are the only or the best ways to address the problem I see. Turning these decisions over to career people does nothing for those who buy the Deep State meme—or the presumption that civil servants mostly vote Democratic. And after all is said and done, these are minor tweaks, not strong protections against abuse. But at least they'd reduce the risk that Americans will end up in a circular surveillance firing squad every four years.