False Alternatives: Formulating a problem as a choice between two [or more] alternatives, when there exist other alternatives that aren’t considered.

Sacramento State[1]

[OK, I’m in a debunking kind of mood but I don’t want to work hard, so I’ve decided to take exception to things from the Washington Post; more specifically, to the wordy rejoinders it has put out to four recent tweets from our President. You may have heard about the tweets: the ones he sent a couple of weeks ago when he accused the previous White House of wiretapping Trump Tower during the last election. He called that “Nixonian,” and said “nothing” was found.[2]

The Obama people countered, saying that (i) Trump had offered no evidence that such a thing had happened[3], and (ii) in any case, President Obama hadn’t ordered anything. The issue is out there because some believe that the Trump people are too close to the Russians, that they conspired with the Russians in the last election to undercut Hillary Clinton, and that this is a crime. There are also rumors about a FISA warrant involving the Trump campaign that may or may not have been issued.

Facts are scarce, and there aren’t enough of them to make Trump or Obama look particularly guilty. Yet both argue they’re in the right, and neither will give in. Will there be an investigation, by Congress or the Department of Justice, or by both? If so, how will we, the bemused public, decide who or what’s right? Are there rules to cover wiretaps and if so, how do we know if they were [or are] followed? Will there be riots in the streets?

Actually I don’t know much about riots, except that often they seem to depend on the mood of politicians. Sometimes, perhaps, they occur just to divert our attention from, say, embarrassing facts.  But I’m a peace-maker at heart, and I’ve concluded that both sides to this particular dispute could be correct. Trump Tower may well have crawled with wiretaps last year, but most likely President Obama didn’t order them.

How do I conclude that? Especially when I admit that facts are scarce? Well, because I’ve learned something about the rules our government follows, or should follow when it wiretaps us. They’re set in our Constitution and refined by laws which, believe it or not, are fairly clear.]

By the way I’m Larry, the legal consultant to Elemental Zoo Two. Please, please dear reader; don’t mistake anything I tell you for legal advice about your individual situations. My opinions are not about you, and I’m certainly no expert on bugs and wiretaps. If you need legal advice about that kind of thing, hire a lawyer who specializes in it.

The 4th Amendment

Let’s start with the basics; that is, with the 4th Amendment to our Constitution.[4] That’s the one that [theoretically] bars our government from unreasonably searching or seizing its citizens or their private property. It says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[5]

Note the key provisions here. The government can seize people, houses, papers and effects, but government officials must have “probable cause” to do it, swear that their allegations are true, describe in detail the persons and things to be seized, and apply for a warrant. And who issues warrants? Well, judges in their courts. Not Presidents. So President Obama was right about one thing for sure. He didn’t order a search [or seizure] because legally that’s not his job. Only a judge issues warrants.

Current Practice

So who asks the court for a warrant? The President? His staff? No; that authority is delegated far below the White House. That being the case, why would a President get involved in such matters? Most, no doubt, have left that kind of thing to the specialists down the chain of command.

The basic rules are spelled out in Chapter 119 of Title 18 to the United States Code. [6] It’s fairly long, but I’ll outline the main points:

  • Who asks for a warrant? That would be any “[i]nvestigative or law enforcement officer,” i.e. “any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for [specified offenses], and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.”[7] Federal investigators, of course, have to work through the DOJ. State investigators follow their own channels. And who can authorize a wiretap [also known as an “intercept”]? That would be any “judge of competent jurisdiction.” And who are they? Federal judges in the District Courts or the Courts of Appeal; and state judges empowered to do so under state law.[8]
  • All right, no doubt there are lots of “investigative or law enforcement officers” who might want to intercept an evildoer’s messaging, but the law says they can do it only for specific crimes. And what are those crimes? Well, the list appears at 18 U.S.C. § 2516, and it’s very, very long. If I were to summarize, I’d say it includes any felony you or I might think of as serious, plus some we’ve never thought of at all. Read it and see for yourself.
  • OK, suppose I’m a state gumshoe, and I’ve got a warrant to wiretap Trump Tower because I suspect somebody there is selling drugs. [After all, it is a big building, with lots of people in it, and drugs are a problem in cities as well as in the rural areas.] So I’m listening to the tapes and I hear some Russians talking to some American about Syria or Iran. The information isn’t about drugs, but it might be important to some investigation the FBI is doing. Do I call and tell them about it?
  • The answer is: “Yes!” Chapter 119 says “[a]ny investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.”[9] In English that means if a NYC gumshoe with a proper warrant intercepts something juicy that’s off topic for the NY investigation but interesting to the FBI, he [or she] can send it over.
  • So is this proof positive that Trump Tower was probed last year for criminal matters? No, we don’t know that. But if intercepts were authorized for people in the building, and the intercepts turned up something about criminal activity in the Trump campaign, quite likely the news would have been be shared with others in law enforcement.
  • Would it also be shared with the White House? I don’t know.

Conclusion

So what’s my point? Basically it’s that the news coverage of the Trump/ Obama dispute has been way too focused. It has honed in on whether President Obama authorized wiretaps – highly unlikely – and disregarded numerous other possibilities. The real questions are:

  • How many separate investigations of Trump Tower were ongoing during the period in dispute?
  • What did they find that relates to the Trump campaign and/ or Russia?
  • Was the information shared throughout law enforcement?
  • What did White House staff know, and who on the staff knew it?

It’s time for reporters to take off their blinders, look beyond the false alternatives, and do their jobs.

 

 

 

 

 

[1] I found this definition in an article entitled Six Common Fallacies at the Sacramento State website. You can find it at http://www.csus.edu/indiv/g/gaskilld/criticalthinking/six%20common%20fallacies.htm .  The whole thing is well worth a read.

[2] I’m paraphrasing the Post’s paraphrase. See The Washington Post, Rucker, et al., Trump, Citing No Evidence, Accuses Obama of ‘Nixon/Watergate’ plot to wiretap Trump Tower (March 4, 2017), available at https://www.washingtonpost.com/news/post-politics/wp/2017/03/04/trump-accuses-obama-of-nixonwatergate-plot-to-wire-tap-trump-tower/

[3] See, e.g., The Washington Post, Dionne, Welcome to Fantasyland (Thursday, March 9, 2017) at p. A17.

[4] We prefer to reference the National Archives as our source for The Constitution, the Bill of Rights, etc. If you want to research the Bill of Rights, start with the Archives at https://www.archives.gov/founding-docs/bill-of-rights/what-does-it-say

[5] See n. 4.

[6] Chapter 119 is called Wire and Electronic Communications Interception, and Interception of Oral Communications. You can find it at the LII website hosted by Cornell University’s Law School, at https://www.law.cornell.edu/uscode/text/18/part-I/chapter-119 . The official version of Chapter 119, the one maintained by the Government Publishing Office [the “GPO”] appears at https://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap119.pdf . Chapter 119 includes 18 U.S.C. §§ 2510 – 2522. Citations to individual code sections will be in the form of 18 U.S.C. § 25__. If you’d like to see Wikipedia’s take on wiretaps, take a  look at https://en.wikipedia.org/wiki/Omnibus_Crime_Control_and_Safe_Streets_Act_of_1968

[7] See 18 U.S.C. § 2510 (7).

[8] See 18 U.S.C. § 2510 (9).

[9] See 18 U.S.C. § 2517 (1).

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