A layman’s explanation of Trump’s accusation that he was wiretapped within the context of FISA

As a New York criminal defense attorney and former Manhattan prosecutor, I have had many a dealing with different kinds of warrants. A warrant is generally permission by a judge to invade a person’s ordinarily protected constitutional rights. Different kinds of warrants affect different rights. For example, a search warrant is a warrant to search someone’s home, car, etc; while an arrest warrant is a warrant to arrest someone. The topic of this blogpost focuses on eavesdropping wiretaps and how they work within the FISA Courts.

In the early morning hours of March 4, President Donald Trump tweeted that then President Barrack Obama ordered that Trump Tower be “wiretapped.” I am not going to get into the politics or veracity of any of this. Rather, I intend to only focus on the law and explain how this all works in simple terms.

First and foremost, the law that governs this entire issue is the “Foreign Intelligence Surveillance Act of 1978” or “FISA” for short. FISA lays out how and when a President can “order” a wiretap. The purpose of FISA is to provide a framework for how counterintelligence can be done in the United States when the government suspects espionage. This law was modified and heavily used after 9-11 to combat terrorism. However, at its core, the reason FISA exists is to deal with the exact scenario that appears to be in the news regarding the emerging Trump-Russia scandal.

Pursuant to FISA, the President can only “order” surveillance without a court order if the President thinks something bad is going to happen to American AND it involves foreign powers AND there is no “substantial likelihood” that the communications of a person in the United States are going to be intercepted. If a person in the United States is to be the target of the surveillance or if there is a substantial likelihood that his or her communications would be intercepted, then the Present (through the Attorney General) would have to go to a special FISA Court and get a warrant. This means that the President would have to show that there is probable cause to believe that something bad is going to happen AND the target of the surveillance is a foreign power or an agent AND that the requested surveillance is regarding information used or will be used by that foreign power or its agent to do something bad. So in this context, this essentially means that a judge has to be convinced that there is evidence showing it more likely than not that the person whom the President wants to be “tapped” is a spy or terrorist.

So to put Trump’s tweets into context, he accused Obama of tapping Trump Tower. While there is a genuine dispute as to whether it happened, supposing that it did- it means that one of the two following has to be true: (i) either Obama ordered that Trump Tower be illegally wiretapped (which would probably be the biggest scandal in American History- certainly since Watergate) or (ii) that a federal judge determined that it was more likely than not that someone in Trump Tower was working with the Russians as a spy. Here, the term “spy” is my word to make this post more readable, but I obviously acknowledge that it is a loaded term.

In any event, Trump’s tweets puts him in a difficult situation. He either made up the allegation or he didn’t. And if he didn’t, it means that Obama either broke a major law or there’s some fire to all this Russian smoke…