SAN FRANCISCO (CN) – President Donald Trump’s tweets about the FBI wiretapping his 2016 campaign likely don’t qualify as an “official acknowledgment” that would require the government to reveal details about its surveillance activities, a federal judge said in court Wednesday.
“Am I required to presume that when the president says something, it’s based on classified information coming from governmental sources?” U.S. District Judge William Orrick III asked during a summary judgment hearing.
The case involves a Freedom of Information Act (FOIA) request submitted by Kevin Poulsen, a Daily Beast national security correspondent who has written extensively on cybersecurity threats and Russian interference in American politics.
Poulsen requested a wide swath of records relating to government’s investigation of the Trump campaign, including audio and video recordings, transcripts of intercepted communications, and metadata such as email headers and timestamps from surveillance files from Oct. 1 to Nov. 8, 2016.
In court, Justice Department lawyer Amy Powell insisted confirming or denying the existence of those records would threaten national security.
“It would be extraordinary for the government to confirm those specific types of surveillance were sought, approved and executed successfully during that time period,” Powell said.
But the most pivotal question before the court Wednesday was whether the president’s tweets amounted to an official acknowledgement that the government was spying on his campaign.
On March 4, 2017, Trump stated in a series of tweets, “Terrible! Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!”
The Justice Department maintains those tweets were merely “a constellation of specific opinions and allegations regarding wiretapping” that did not specify individual targets, other than the president, or confirm the involvement of the FBI or Justice Department.
Another presidential tweet in November 2017 stated that the House of Representatives was seeking contempt sanctions against the FBI and Justice Department for “withholding key documents and an FBI witness which could shed light on surveillance of associates of Donald Trump.”
Regarding that tweet, the Justice Department says the president was simply paraphrasing Fox News reports and not officially confirming the existence of surveillance records.
“Why shouldn’t I take the president’s tweets at face value?” Orrick asked the Justice Department. “Why should I look at this and determine it came from sources other than the government?”
Powell replied the president’s tweets were merely echoing news reports or speaking about “general matters.”
At the start of Wednesday’s hearing, Orrick said he was inclined to side with the government’s position because he does not believe the president’s tweets “disclose specific government information,” such as the details sought in Poulsen’s public records request.
After 30 minutes of debate, however, Orrick vowed to “take another look” at the case, adding he would issue a ruling “relatively soon.”
Reached by email after the hearing, Poulsen said this case demonstrates how “cavalier” the government is about invoking “Glomar,” the term used for official responses that neither confirm nor deny information. The term comes from a 1975 D.C. Circuit ruling, Phillippi v. CIA, which upheld the government’s right to neither confirm nor deny the existence of the CIA vessel USNS Huges Glomar Explorer and its mission to recover a sunken Soviet submarine.
After Poulsen submitted his FOIA request in March 2017, the government replied with a Glomar response. Then in July 2018, the Trump administration released redacted portions of the Foreign Intelligence Surveillance Act (FISA) application used to investigate former Trump campaign adviser Carter Page.
“One day the Justice Department swears it can’t confirm or deny the mere existence of a Carter Page FISA without critically damaging America’s national security,” Poulsen said by email. “The next day the president declassifies portions of the FISA application for political reasons, and somehow the Union survives the disclosure.”
The Justice Department did not immediately return an email seeking comment Friday afternoon.