When James McCord, formerly of CIA and FBI, broke into the Democratic National Committee’s (DNC) offices in the Watergate hotel, he did not have a search warrant. Because he and all in the White House who knew of and supported this penetration were trying to get information with which to discredit President Nixon’s opponents during the 1972 presidential campaign, theirs was no minor burglary, but a political crime of the highest order in America. Moreover, if the White house had asked for such a warrant, alleging the need to protect national security, any ordinary judge would have discounted the (plentiful) evidence that Democratic Party operatives were in contact with North Vietnam (with which we were at war), Cuba and others in light of the obvious motive for penetrating the DNC: domestic political advantage.
Fast-forward 44 years. In October, as opposition presidential candidate Donald Trump was surging in the polls, U.S. intelligence officials broke into his communications. But this time they had warrants. Approval, if not instigation, for seeking them had to come from the highest levels of the administration. One seems to have been obtained on the basis of a specious claim that the real targets were Russians, not Americans. But the other apparently aimed squarely at alleged contacts between Mr. Trump’s electronic communications system and Russians. It is difficult to imagine what threats to national security, supported by “probable cause,” these warrant requests might have alleged that could have outweighed the obvious fact that preventing the opposition candidate’s election was the point of the penetration. By legalizing precisely the same thing that the Watergate burglars had done — a political crime of the highest order — these warrants changed American politics.
The court that granted the warrants, established by the 1978 Foreign Intelligence Surveillance Act (FISA) has issued some 34,000 such warrants in secret proceedings, while denying only 12 requests. That the FISA court would be a rubber stamp was foreseeable and foreseen: because there are no judicial criteria for evaluating national security matters, because judges are agnostic on such matters, and because this is how ex-parte, secret proceedings always turn out.
In 1978 I was on the staff of the Senate Intelligence Committee as we wrote FISA, and led the staff-level opposition to its passage in the Senate. Former Attorney General Laurence Silberman and University of Virginia law professor John Norton Moore argued that FISA’s introduction of judicial authority into decisions pertaining to national security would intrude unconstitutionally into an exclusively presidential prerogative. The left, for its part, wanted to extend “probable cause” criteria to foreign intelligence. Much of the law consists of these criteria’s pseudolegal definitions. But the big push for FISA came from the intelligence agencies. From the beginning of the Vietnam War, the left had pilloried them for picking up their contacts with North Vietnam and Soviet front groups. The agencies were threatening to withdraw into a self-defensive crouch unless every one of their judgments was legally pre-immunized, because they no longer wanted to bear the responsibility for the quality of their judgments regarding wiretaps.
While I shared wholeheartedly the constitutional objections, I thought that FISA’s biggest threat came precisely from judicially pre-immunizing the agencies’ wiretap decisions. I so argued in a debate that the American Bar Association set up at the University of Chicago Law School. My opponent, Professor Antonin Scalia, agreed with the constitutional critique and that the judiciary would be no bar to the agencies’ judgment. But he trusted that judgment. At the time, none of us — right or left — imagined that, in the course of decades, the intelligence agencies’ leadership would merge so thoroughly with the party of permanent government as to turn FISA into something that institutionalizes Watergate.
At this point however, the legal status of the 2016 political “wiretaps” diverges dramatically from that of Watergate. If James McCord had given to The Washington Post, or to anyone, information (or ashtrays) from the DNC, this would not have increased his liability for a two-bit burglary. But while the FISA warrants wholly immunize the persons who broke into the Trump campaign’s communications for the break-in, they are powerless to protect them or anybody else who took any part or had any knowledge of giving any information about that break-in to The Washington Post, The New York Times or any other persons. That is because Section 798, 18 U.S Code, the communications intelligence (COMINT) statute, is a “strict liability” law. You have anything to do with divulging anything having to do with U.S communications intelligence, you get 10 years in the federal pen for each count.
Preventing Watergate from taking root in American politics requires prosecuting to the full extent of the COMINT statute whoever was involved, directly or by way of knowledge, in divulging information about the 2016 break-in. If Trump officials fail to do this, they will have deserved whatever their enemies are preparing for them.
• Angelo M. Codevilla is professor emeritus of international relations at Boston University.