Donald Trump must supply evidence to support wiretapping claims: Daily Bullshit, March 5-7, 2017

Updates

  1. March 5, 3:54 pm:
    • The Citizen and Naturalization Services agency has announced it is “suspend[ing] premium processing for H-1B visa petitions for high-skilled workers” in order to “work through a large backlog of non-premium petitions.”[1] (H-1B Visas)
    • Uber is in damage-control mode.[2]
    • The Wall Street Journal[3] reports on Donald Trump’s claims that Barack Obama wiretapped him. (Donald Trump and Russia)
  2. March 6, 12:32 am
    • The ACLU[4] and an author at Lawfare[5] weigh in on Trump’s claimed wiretapping.
    • The New York Times[6] reports on Trump’s claims that Obama wiretapped him. (Donald Trump and Russia)
  3. March 6, 1:42 pm:
    • Jonathan Turley weighs in with what, on its own, is a not particularly helpful post on the Trump wiretapping allegation.[7] (Donald Trump and Russia)
    • In a must-read antidote to Turley’s piece, Chris Hedges refocuses on the failure of the liberal elite.[8] (Dumbocrats)
  4. March 7, 03:07 am:
    • Donald Trump has issued a new version of his Muslim ban.[9] (Muslim Ban)
    • The Christian Science Monitor analyzes Uber’s ‘greyball’ program.[10] (Uber)

So above, in the update announcement for March 6, 1:42 pm, I say that Jonathan Turley’s post isn’t particularly helpful. His main thrust is that “If this continues, the unitary executive will become the binary executive with the White House in uneasy relations with the rest of the executive branch.” He is worried about what all functionalist conservatives worry about: the orderly functioning of government.[11] I recently revisited my page entitled “If you want me to take you seriously….,” and noticed in hint #7 this quotation from Peggy Noonan:

President [Barack] Obama has been an unusually strong helper and supporter of Mrs. [Hillary] Clinton, and this is assumed to be linked to interest in his legacy. Successful presidents tend to be followed by presidents from their own party. But it is more than legacy, or loyalty. It is a desire to avoid humiliation. If Mr. [Donald] Trump wins, voters will be saying more than that Mr. Obama’s leadership didn’t quite work. They’ll be saying he was such a failure that they lurched desperately toward someone who’d blow the whole system up. Mr. Trump’s election would be a stinging rebuke, one for the history books. Mr. Obama will give everything he has to keep that from happening.[12]

Whatever you think of this Wall Street Journal columnist, Trump is delivering what Noonan predicted. And I’m just wondering, in a Taoist kind of way, if “blow[ing] the whole system up” might pave the way for a more enlightened consciousness. No promises.


Donald Trump and Russia

I’m just noticing that those who now demand that Donald Trump should support his claims that Barack Obama ordered wiretaps on Trump Tower[13] made no such demand on claims that Russia interfered with the U.S. election.[14] But there are two levels to this controversy. First, as with claims of Russian interference, those making the claims supply no actual evidence to support these claims and, in the absence of actual, publicly available evidence, these claims must be treated as extremely dubious.[15] Second, Obama probably could not have obtained legal authority for a wiretap. If such a wiretap was actually placed, it was likely illegal,[16] but:

First, they may have come upon Trump Tower phone calls if a targeted foreign agent was on the other end of the line — this method comes from the Foreign Intelligence Surveillance Court. Or Trump Tower digital chatter might show up while digging through the vast quantities of data hoovered up via more sweeping foreign surveillance programs.

Second, the FBI could have also asked for a so-called “pen register” or “tap and trace device,” which only record the parties involved in a phone call. These requests have a lower bar for approval.

While it’s unknown if any of these scenarios occurred, it’s “very likely that the people in the Obama administration had access to the communication of senior Trump officials in the run-up to the election, because they have very, very broad authority,” said Cindy Cohn, executive director of the Electronic Frontier Foundation, which has advocated for revising surveillance laws.[17]

Obama—or his administration—may have used Foreign Intelligence Surveillance Act (FISA) authority.[18]

Diving deep into Roget’s Thesaurus, media outlets were quick to call the President’s charges “baseless,” “unfounded,” and “without evidence.” What they seem to mean is that he didn’t footnote his tweets. But any halfway decent reporter could have found the source of the President’s charge—a Breitbartarticle that built on earlier reports by the BBC and Heatstreet. These articles make quite specific claims that the Obama administration used the Foreign Intelligence Surveillance Act to investigate alleged Russian ties to the Trump campaign. Most media outlets have been surprisingly incurious about those claims, or at least slow to investigate them, as though they were somehow beneath the dignity of real reporters already swamped with their Roget’s research.[19]

I am unfamiliar with Heatstreet, but Breitbart is hardly a reputable source. The BBC article, however, relies on sources who confirmed or denied possible elements of the story. What we can reasonably glean from it is that the Obama administration probably investigated reports that Trump might be vulnerable to blackmail.[20] We know absolutely nothing about the outcome of this investigation[21] and it would be that outcome that would rise to the level of actual evidence. A proper report should detail methods and it would be from this that we would know whether or not Obama (or his administration) “wiretapped” Trump and then, from this, whether or not such an investigation was lawful.

[S]enior law enforcement and intelligence officials who worked in the Obama administration have said there were no secret intelligence warrants regarding Trump. Asked whether such a warrant existed, James Clapper, a former director of national intelligence, said on NBC’s “Meet the Press” program, “I can deny it.”

“There was no such wiretap activity mounted against the president-elect at the time as a candidate or against his campaign,” he added.[22]

That actually fails to answer the question. As Lawfare’s Stewart Baker explains, the claim is “true enough, but more or less irrelevant. Under current law, the President doesn’t order surveillance, The Attorney General does. Who thinks that if Loretta Lynch and not President Obama ordered surveillance of the Trump campaign we could all kick back and stop worrying about politicization of national security?” And, apparently, a FISA investigation could have, at least on paper, targeted Russian banks, thus evading the prohibition on domestic spying.[23]

Which is all to say we still don’t know shit, either about whether or not “Mr Trump had been filmed with a group of prostitutes in the presidential suite of Moscow’s Ritz-Carlton hotel,”[24] let alone whether such hijinks included “golden showers,”[25] or that the Obama administration acted improperly in investigating these reports.

Cory Bennett, “How the feds could have listened to Trump’s phone calls,” Politico, March 4, 2017, http://www.politico.com/story/2017/03/trump-feds-phone-calls-obama-235690

Stewart Baker, “Eight Buckets of Cold Water for the Trump Wiretap Story,” Lawfare, March 5, 2017, https://www.lawfareblog.com/eight-buckets-cold-water-trump-wiretap-story

Ashley Gorski and Patrick Toomey, “Trump’s Wiretapping Accusations: Here’s What the Government Can Actually Do,” American Civil Liberties Union, March 5, 2017, https://www.aclu.org/blog/speak-freely/trumps-wiretapping-accusations-heres-what-government-can-actually-do

Ted Mann, “FBI Asks Justice Department to Refute Trump’s Wiretap Claim,” Wall Street Journal, March 5, 2017, https://www.wsj.com/articles/white-house-to-ask-congress-to-probe-potentially-politically-motivated-investigations-1488724467

Michael S. Schmidt and Michael D. Shear, “Comey asks Justice Dept. to reject Trump’s wiretapping claim,” Minneapolis Star-Tribune, March 5, 2017, http://www.startribune.com/comey-asks-justice-dept-to-reject-trump-s-wiretapping-claim/415432234/

Jonathan Turley, “Report: Comey Asks Justice Department To Deny Trump Allegations As Untrue,” March 6, 2017, https://jonathanturley.org/2017/03/06/report-comey-asks-justice-department-to-deny-trump-allegations-as-untrue/


H-1B Visas

U.S. Citizenship and Naturalization Services (USCIS) announced it “will suspend premium processing for H-1B visa petitions for high-skilled workers” in order to “work through a large backlog of non-premium petitions.”[26] This appears not to be related to the fact that the entire H-1B system is a scam to substitute cheaper migrant workers for U.S. workers.[27]

Elliot Smilowitz, “US to slow processing of visas for high-skilled workers,” Hill, March 4, 2017, http://thehill.com/policy/technology/322338-us-to-slow-processing-of-visas-for-high-skilled-workers


Uber

I overheard a conversation in which it was alleged that many, many Uber staff are waiting to resign until after bonuses are issued. If I heard right, the bonuses come out on the 15th.

Setting rumor aside, Uber’s future appears very much to depend on a successful implementation of self-driving cars and on venture capitalists continuing to fund them while they work out the bugs in self-driving cars.[28] I’m optimistic that somebody will succeed with this technology. But I’ve been around when venture capitalists fold up their checkbooks and this doesn’t have to be about anything rational. And with Uber’s mounting problems,[29] it could be that venture capitalists act sooner rather than later.

Could be. My experience with venture capitalists is that that industry suffers from many of the same ills that bedevil high technology. They also might fail to respond to these developments at all simply because they don’t even recognize them as problems.

Melanie Zanona and Ali Breland, “Uber shifts into damage control mode,” Hill, March 4, 2017, http://thehill.com/policy/transportation/322317-uber-shifts-into-damage-control-mode

Ben Rosen, “Uber’s secret ‘Greyball’ program: a problem with the ride-hailer or with regulators?” Christian Science Monitor, March 5, 2017, http://www.csmonitor.com/Technology/2017/0305/Uber-s-secret-Greyball-program-a-problem-with-the-ride-hailer-or-with-regulators


Dumbocrats

Chris Hedges, “Donald Trump’s Greatest Allies Are the Liberal Elites,” Truthdig, March 5, 2017, http://www.truthdig.com/report/item/donald_trumps_greatest_allies_are_the_liberal_elites_20170305


Muslim Ban

Bizarro, March 6, 2017, fair use.
Fig. 1. Bizarro, March 6, 2017, fair use.

Jonathan Turley notes that “this [new order] still distinguishes between people based on their nationality — the core of the challenge of the earlier litigation. Thus, it is likely that this will face new challenges — or attempts to amend earlier complaints.”[30]

But what’s worse is that there is absolutely no coherent linkage between affected countries and incidences of terrorism in the United States (figure 2).[31]:

Screenshot from the Wall Street Journal, March 6, 2017, fair use.
Fig. 2. Screenshot from the Wall Street Journal, March 6, 2017, fair use.

Turley believes that broad language in a 1952 immigration law, specifically section 1182(f), allows the president “by proclamation, and for such period as he shall deem necessary, [to] suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate,”[32] which does indeed sound just like what Trump has done. Subsequent legislation that appears to ban discrimination based on nationality “does not apply to refugees” and “does not ban discrimination based on religion.” Turley also cites an action by Jimmy Carter, arguing that this is among the precedents that would need to be overturned or found unconstitutional for challengers to the new order to prevail.[33]

[W]here does all of that leave us? It leaves us with a good-faith challenge to an executive order, but a challenge that will have to clear away a host of existing cases to prevail. Could it happen? Sure, but it is important not to overstate the authority in the area or allow passions to overcome analysis. At most the 1965 law would be relevant to part of the order and even for that portion (on the seven identified countries) the Administration has strong arguments on the basis of inherent plenary authority and statutory exemptions.[34]

The ACLU plans to sue regardless.

A more pressing legal question is whether the order amounts to religious discrimination by unconstitutionally singling out Muslims for unfavorable treatment. A federal judge in Virginia, Leonie Brinkema, concluded the original order likely violated the Constitution’s Establishment Clause, which prohibits the government from making religious preferences.

The new order removes a provision that gave preference to Christian refugees from Muslim counties. It also includes a paragraph that explicitly refutes claims that the travel ban discriminates based on religion.

But the judge found that the original ban was spurred by anti-Muslim animus, citing Mr. Trump’s previous campaign statements as well as recent statements by adviser Rudy Giuliani about Mr. Trump’s intent and motivations for the executive order. Nothing in the new order alters that history.[35]

The ACLU’s David Cole is crystal clear on that last point:

Donald Trump has repeatedly made crystal clear his intent to ban Muslims from entering the United States. As a candidate, he repeatedly stated that he intended, if elected, to ban Muslim immigrants from entering the United States. He has never repudiated that commitment. When confronted with the fact that his proposal would violate the Constitution, President Trump said on “Meet the Press” on July 24, 2016, that he would use territory as a proxy for religion. And, when asked after his election victory whether he still intended to ban Muslim immigrants from the United States, President-elect Trump confirmed that was still the plan. Two days after the original executive order was issued, former New York City Mayor Rudy Giuliani, an advisor to President Trump, stated that then-candidate Trump had asked him for help in “legally” creating a “Muslim ban”; that, in response, Mr. Giuliani and others decided to use territory as a proxy; and that this idea is reflected in the signed order. There is overwhelming evidence that the most recent executive order was likewise intended to discriminate against Muslims.[36]

Because the Constitution is the highest law in the land, one might suspect that the First Amendment should trump the law that Turley cites.

David Cole, “We’ll See You in Court, 2.0: Once a Muslim Ban, Still a Muslim Ban,” Just Security, March 6, 2017, https://www.justsecurity.org/38410/court-2-0-muslim-ban-muslim-ban/

Laura Meckler and Brent Kendall, “Trump Signs New Travel Ban in Bid to Avoid Original Order’s Legal Pitfalls,” Wall Street Journal, March 6, 2017, https://www.wsj.com/articles/president-trump-signs-revised-executive-order-restricting-travel-to-the-u-s-1488818000

Jonathan Turley, “Trump signs new immigration executive order,” March 6, 2017, https://jonathanturley.org/2017/03/06/trump-signs-new-immigration-executive-order/


  1. [1]Elliot Smilowitz, “US to slow processing of visas for high-skilled workers,” Hill, March 4, 2017, http://thehill.com/policy/technology/322338-us-to-slow-processing-of-visas-for-high-skilled-workers
  2. [2]Melanie Zanona and Ali Breland, “Uber shifts into damage control mode,” Hill, March 4, 2017, http://thehill.com/policy/transportation/322317-uber-shifts-into-damage-control-mode
  3. [3]Ted Mann, “FBI Asks Justice Department to Refute Trump’s Wiretap Claim,” Wall Street Journal, March 5, 2017, https://www.wsj.com/articles/white-house-to-ask-congress-to-probe-potentially-politically-motivated-investigations-1488724467
  4. [4]Ashley Gorski and Patrick Toomey, “Trump’s Wiretapping Accusations: Here’s What the Government Can Actually Do,” American Civil Liberties Union, March 5, 2017, https://www.aclu.org/blog/speak-freely/trumps-wiretapping-accusations-heres-what-government-can-actually-do
  5. [5]Stewart Baker, “Eight Buckets of Cold Water for the Trump Wiretap Story,” Lawfare, March 5, 2017, https://www.lawfareblog.com/eight-buckets-cold-water-trump-wiretap-story
  6. [6]Michael S. Schmidt and Michael D. Shear, “Comey asks Justice Dept. to reject Trump’s wiretapping claim,” Minneapolis Star-Tribune, March 5, 2017, http://www.startribune.com/comey-asks-justice-dept-to-reject-trump-s-wiretapping-claim/415432234/
  7. [7]Jonathan Turley, “Report: Comey Asks Justice Department To Deny Trump Allegations As Untrue,” March 6, 2017, https://jonathanturley.org/2017/03/06/report-comey-asks-justice-department-to-deny-trump-allegations-as-untrue/
  8. [8]Chris Hedges, “Donald Trump’s Greatest Allies Are the Liberal Elites,” Truthdig, March 5, 2017, http://www.truthdig.com/report/item/donald_trumps_greatest_allies_are_the_liberal_elites_20170305
  9. [9]David Cole, “We’ll See You in Court, 2.0: Once a Muslim Ban, Still a Muslim Ban,” Just Security, March 6, 2017, https://www.justsecurity.org/38410/court-2-0-muslim-ban-muslim-ban/; Laura Meckler and Brent Kendall, “Trump Signs New Travel Ban in Bid to Avoid Original Order’s Legal Pitfalls,” Wall Street Journal, March 6, 2017, https://www.wsj.com/articles/president-trump-signs-revised-executive-order-restricting-travel-to-the-u-s-1488818000; Jonathan Turley, “Trump signs new immigration executive order,” March 6, 2017, https://jonathanturley.org/2017/03/06/trump-signs-new-immigration-executive-order/
  10. [10]Ben Rosen, “Uber’s secret ‘Greyball’ program: a problem with the ride-hailer or with regulators?” Christian Science Monitor, March 5, 2017, http://www.csmonitor.com/Technology/2017/0305/Uber-s-secret-Greyball-program-a-problem-with-the-ride-hailer-or-with-regulators
  11. [11]Jonathan Turley, “Report: Comey Asks Justice Department To Deny Trump Allegations As Untrue,” March 6, 2017, https://jonathanturley.org/2017/03/06/report-comey-asks-justice-department-to-deny-trump-allegations-as-untrue/
  12. [12]Peggy Noonan, “A Disunited Party’s Successful Convention,” Wall Street Journal, July 29, 2016, http://www.wsj.com/articles/a-disunited-partys-successful-convention-1469769130
  13. [13]Cory Bennett, “How the feds could have listened to Trump’s phone calls,” Politico, March 4, 2017, http://www.politico.com/story/2017/03/trump-feds-phone-calls-obama-235690
  14. [14]David Benfell, “Vladimir Putin’s motives,” Not Housebroken, December 15, 2016, https://disunitedstates.org/?p=9162; David Benfell, “Blaming the Russians,” Not Housebroken, December 17, 2016, https://disunitedstates.org/?p=9151
  15. [15]David Benfell, “Blaming the Russians,” Not Housebroken, December 17, 2016, https://disunitedstates.org/?p=9151
  16. [16]Cory Bennett, “How the feds could have listened to Trump’s phone calls,” Politico, March 4, 2017, http://www.politico.com/story/2017/03/trump-feds-phone-calls-obama-235690; Ted Mann, “FBI Asks Justice Department to Refute Trump’s Wiretap Claim,” Wall Street Journal, March 5, 2017, https://www.wsj.com/articles/white-house-to-ask-congress-to-probe-potentially-politically-motivated-investigations-1488724467
  17. [17]Cory Bennett, “How the feds could have listened to Trump’s phone calls,” Politico, March 4, 2017, http://www.politico.com/story/2017/03/trump-feds-phone-calls-obama-235690
  18. [18]Stewart Baker, “Eight Buckets of Cold Water for the Trump Wiretap Story,” Lawfare, March 5, 2017, https://www.lawfareblog.com/eight-buckets-cold-water-trump-wiretap-story; Ashley Gorski and Patrick Toomey, “Trump’s Wiretapping Accusations: Here’s What the Government Can Actually Do,” American Civil Liberties Union, March 5, 2017, https://www.aclu.org/blog/speak-freely/trumps-wiretapping-accusations-heres-what-government-can-actually-do; Paul Wood, “Trump ‘compromising’ claims: How and why did we get here?” British Broadcasting Corporation, January 12, 2017, http://www.bbc.com/news/world-us-canada-38589427
  19. [19]Stewart Baker, “Eight Buckets of Cold Water for the Trump Wiretap Story,” Lawfare, March 5, 2017, https://www.lawfareblog.com/eight-buckets-cold-water-trump-wiretap-story
  20. [20]Paul Wood, “Trump ‘compromising’ claims: How and why did we get here?” British Broadcasting Corporation, January 12, 2017, http://www.bbc.com/news/world-us-canada-38589427
  21. [21]Stewart Baker, “Eight Buckets of Cold Water for the Trump Wiretap Story,” Lawfare, March 5, 2017, https://www.lawfareblog.com/eight-buckets-cold-water-trump-wiretap-story
  22. [22]Michael S. Schmidt and Michael D. Shear, “Comey asks Justice Dept. to reject Trump’s wiretapping claim,” Minneapolis Star-Tribune, March 5, 2017, http://www.startribune.com/comey-asks-justice-dept-to-reject-trump-s-wiretapping-claim/415432234/
  23. [23]Stewart Baker, “Eight Buckets of Cold Water for the Trump Wiretap Story,” Lawfare, March 5, 2017, https://www.lawfareblog.com/eight-buckets-cold-water-trump-wiretap-story
  24. [24]Paul Wood, “Trump ‘compromising’ claims: How and why did we get here?” British Broadcasting Corporation, January 12, 2017, http://www.bbc.com/news/world-us-canada-38589427
  25. [25]Juan Cole, “For Russian hold on Trump, follow the Money, not the Sex tapes,” Informed Comment, January 11, 2017, http://www.juancole.com/2017/01/russian-trump-follow.html; Greg Price, “Penthouse may have proof of Trump’s ‘golden shower’ tryst at Moscow hotel,” Raw Story, January 13, 2017, http://www.rawstory.com/2017/01/penthouse-may-have-proof-of-trumps-golden-shower-tryst-at-moscow-hotel/; Jeff Stein, “Trump, Russian Spies and the Infamous ‘Golden Shower Memos,’” Newsweek, January 10, 2017, http://www.newsweek.com/trump-russian-spies-infamous-golden-shower-memos-541315
  26. [26]Elliot Smilowitz, “US to slow processing of visas for high-skilled workers,” Hill, March 4, 2017, http://thehill.com/policy/technology/322338-us-to-slow-processing-of-visas-for-high-skilled-workers
  27. [27]Josh Eidelson, “The Tech Worker Shortage Doesn’t Really Exist,” Business Week, November 24, 2014, http://www.businessweek.com/articles/2014-11-24/the-tech-worker-shortage-doesnt-really-exist; Karin Klein, “The truth about the great American science shortfall,” Los Angeles Times, February 24, 2014, http://www.latimes.com/opinion/opinion-la/la-ol-stem-science-math-shortage-20140224,0,6706502.story; Kyung M. Song and Janet I. Tu, “Do visas for skilled foreigners shut out U.S. tech workers?” Seattle Times, May 5, 2013, http://seattletimes.com/html/localnews/2020924182_h1bworkersxml.html; Jordan Weissmann, “The Myth of America’s Tech-Talent Shortage,” Atlantic, April 29, 2013, http://www.theatlantic.com/business/archive/2013/04/the-myth-of-americas-tech-talent-shortage/275319/
  28. [28]Ryan Felton, “Uber Is Doomed,” Jalopnik, February 24, 2017, http://jalopnik.com/uber-is-doomed-1792634203
  29. [29]Ryan Felton, “Uber Is Doomed,” Jalopnik, February 24, 2017, http://jalopnik.com/uber-is-doomed-1792634203; Melanie Zanona and Ali Breland, “Uber shifts into damage control mode,” Hill, March 4, 2017, http://thehill.com/policy/transportation/322317-uber-shifts-into-damage-control-mode
  30. [30]Jonathan Turley, “Trump signs new immigration executive order,” March 6, 2017, https://jonathanturley.org/2017/03/06/trump-signs-new-immigration-executive-order/
  31. [31]Laura Meckler and Brent Kendall, “Trump Signs New Travel Ban in Bid to Avoid Original Order’s Legal Pitfalls,” Wall Street Journal, March 6, 2017, https://www.wsj.com/articles/president-trump-signs-revised-executive-order-restricting-travel-to-the-u-s-1488818000
  32. [32]quoted in Jonathan Turley, “Trump signs new immigration executive order,” March 6, 2017, https://jonathanturley.org/2017/03/06/trump-signs-new-immigration-executive-order/
  33. [33]Jonathan Turley, “Trump signs new immigration executive order,” March 6, 2017, https://jonathanturley.org/2017/03/06/trump-signs-new-immigration-executive-order/
  34. [34]Jonathan Turley, “Trump signs new immigration executive order,” March 6, 2017, https://jonathanturley.org/2017/03/06/trump-signs-new-immigration-executive-order/
  35. [35]Laura Meckler and Brent Kendall, “Trump Signs New Travel Ban in Bid to Avoid Original Order’s Legal Pitfalls,” Wall Street Journal, March 6, 2017, https://www.wsj.com/articles/president-trump-signs-revised-executive-order-restricting-travel-to-the-u-s-1488818000
  36. [36]David Cole, “We’ll See You in Court, 2.0: Once a Muslim Ban, Still a Muslim Ban,” Just Security, March 6, 2017, https://www.justsecurity.org/38410/court-2-0-muslim-ban-muslim-ban/

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