Donald Trump’s latest made-up scandal surrounding Barack Obama is so dumb that even he doesn’t appear to know what it actually is. And frankly, that’s understandable, because neither does anybody else. He’s been furiously Tweeting about “Obamagate” on a more or less daily basis for a week now, but he hasn’t bothered to say what it supposedly is.
I’ve been asking people what this nonsense means, and nobody seems to know. As near as I can tell, it has something to do with Michael Flynn, but I’m not sure. At a press conference in the Rose Garden on Monday, Trump didn’t seem to be sure, either.
“You know what the crime is. The crime is very obvious to everybody, all you have to do is read the newspapers.” Ok, well that clears that right up. Oh, wait, that WAS the newspaper asking. It was Washington Port reporter Philip Rucker.
But for the sake of argument, I’m going to assume he’s talking about the recently declassified list of Obama administration officials who made “unmasking” requests in the final days of the administration that was made public by three Republican senators on Wednesday. One of the names on the list is Joe Biden, and it seems like a lot of right-wing talking heads are trying to seize on this as some evidence of wrongdoing without actually saying it out loud, when in fact it’s nothing of the sort. It’s completely routine.
Let’s have a short primer on surveillance and masking, shall we? To begin with, it is generally illegal for spy agencies to intercept the communications of American citizens without a warrant from a special court that handles sensitive or classified intelligence matters. These courts were established by the Foreign Intelligence Surveillance Act (FISA), and this is where you go to get a warrant to “wiretap” an American as part of a counterintelligence investigation. There was never a FISA warrant issued for Mike Flynn, and this is the basis for the Trumpworld claim that the interception was illegal.
Hold on, it’s not that simple. Mike Flynn’s communications were never intercepted. It was the person on the other end of the phone who was under surveillance, and Flynn just happened to be on the wrong end of the call. That person was Sergei Kislyak, the Russian ambassador to the U.S. In the counterintelligence world, it’s widely understood that most senior Russian Intelligence Service (RIS) operatives travel and work under diplomatic cover. That means that more often than not, “spy” and “diplomat” tend to be synonymous when we are talking about Russians. That’s why the Obama administration expelled 35 Russian “diplomats” from the US in December, 2016. He wasn’t punishing the Russians. He was shutting down a spy ring.
Kislyak was known at the time to be one of the most senior operatives and recruiters in RIS, and was a completely legitimate, legal, and long-standing target for surveillance. Occasionally, Americans get caught up in this type of surveillance, either as a party or as a subject of conversation (known as “reflection”), as happened with Flynn. When that happens, a report is issued in top clearance circles and the name of the American is “masked” in the transcript to protect his or her privacy and legal rights. Instead of a name, the American is identified as “US Person” or “USP” for short. If it’s more than one, it becomes USP1, USP2, etc. These reports are generally closely guarded at the highest levels and are disseminated on a “need to know” basis.
If the FBI, Department of Justice, or other domestic law enforcement agency believes there is a legitimate interest in the matter, they can make a request to have the name of the person “unmasked” for investigation. It goes up the chain to a small group of people authorized to approve unmasking – probably less than 20 in total – and a decision is made as to whether the request is legitimate, and whether disclosing the name would compromise intelligence sources and methods. Sometimes the request is approved, and sometimes it’s denied. It all depends.
Moreover, it’s not clear that Flynn’s name was ever masked because there is no record in the released documents of anyone requesting to unmask him in particular. There is a possibility that the call may have been intercepted by the FBI, a domestic agency, under circumstances that would not require the masking of names. as opposed to a foreign intelligence agency like the NSA that would. But for the sake of argument, I am assuming it was masked.
Considering the mounting evidence of Russian election interference at the time, and if the contents of Flynn’s call with Kislyak are as alarming as has been suggested, it wouldn’t have been unusual in the least for high-ranking officials to make unmasking requests related to it, especially considering that the FBI already had multiple counterintelligence investigations open at the time related to Trump campaign officials and Russian influence. Nor is any of this new information. Bloomberg was reporting as early as 2017 that Obama National Security Adviser Susan Rice had made such requests. Trumpworld tried to make hay out of it at the time and it went nowhere, so this is apparently Round 2.
Not only is none of this even remotely illegal, or even unethical, it’s also incredibly common. The NSA unmasked well over 16,000 names at the request of Trump administration officials in 2018 and over 10,000 in 2019, far more than the 9,217 in the final year of the Obama administration. So if unmasking is insidious and nefarious, the Trump administration is more guilty than anyone else. There does appear to have been a flurry of requests between November 8 and January 31 following the election, but without seeing the underlying documents, it’s impossible to know what sparked it across so many different agencies and departments.
The only way any of this becomes even a little bit illegal is if you can prove the request was made for political or otherwise illegitimate purposes, and considering the amount of evidence pointing to wrongdoing by multiple members of the Trump campaign and transition teams, this seems highly unlikely to be possible. But the real problem is that Trump and his goons won’t actually say what they are alleging, because to do so would open the door to refutation and possible public disclosure of the underlying evidence, which they REALLY don’t want. So instead, they just make vague insinuations of wrongdoing without accusing anyone by name or specifying any particular request that they believe was improper.
Now what IS actually a crime is that somebody, somewhere leaked the fact that Flynn was the target of an investigation to the press. It’s a crime that happens all the time and is rarely prosecuted, because it happens so frequently and because finding the leaker is usually very hard and consumes a lot of resources. But if they can discover the identity of the leaker, they could potentially prosecute that person. Other than that, there’s absolutely no evidence whatsoever of any wrongdoing by anyone in the Obama administration, and we don’t even know that the leaker was an Obama official.
So how do you refute a vague insinuation that maybe, possibly, somewhere along the way some unnamed person might have done some unspecified thing that was somehow wrong? You don’t. You ignore it, and you laugh at the moron trying to do it.