2 years ago
GOP fury stoked by the FBI search of Mar-a-Lago is about to upend a long-running fight over intelligence agencies’ surveillance powers.
Republicans are warning that the search of Donald Trump’s Florida residence is throwing an early curveball into reauthorization of a program known on the Hill as Section 702. Meant to gather electronic communications of foreign targets, it has caused no shortage of controversy over the years given its ability to also inadvertently sweep up the communications of Americans.
“When you have actions like this,” House Intelligence Committee member Rep. Brian Fitzpatrick (R-Pa.), said in a brief interview, referring to the FBI search of the former president, “for a lot of people it’s feeding into suspicions that they may have. And we’re trying to get past all of that. We have our work cut out for us.”
Fitzpatrick, a centrist who breaks from Trump at times and is working on reauthorizing the program, predicted that the search of the former president’s estate would have a “ripple effect” on the debate because it feeds GOP doubts about the top ranks of the FBI.
Greenlighting future Section 702 surveillance was never going to be easy in a GOP with long-running fractures over the often-sweeping scope of law enforcement and intelligence monitoring, as illustrated by brawls on the matter in 2018 and 2020. While Congress has until the end of 2023 to act on a program that the FBI and others have argued is critical to national security, House Republicans said in interviews that they’ve already started talking about it as they prepare for a likely majority next year.
"It complicates it a lot," Rep. Markwayne Mullin (R-Okla.), another Intelligence Committee member and the frontrunner to succeed retiring Sen. Jim Inhofe (R-Okla.), said about the search's impact on the surveillance fight.
Even as some details about the Mar-a-Lago search get publicly released, there's fierce backlash from within the House Republican conference against FBI leadership. A search warrant unsealed last week showed that the bureau acted as part of a Justice Department investigation of Trump for potential violation of laws against obstructing justice, removing or destroying records and the Espionage Act.
The search is sparking calls from the House GOP's right flank to defund the FBI altogether. And during a court hearing Thursday over the sealed affidavit that underpinned the search, a top DOJ official indicated that the investigation is still “in its early stages,” suggesting it could remain a source of Republican angst for the foreseeable future.
Importantly, the connection between the FBI’s Mar-a-Lago search and warrantless surveillance is murky if it exists at all. But Republicans say the FBI’s actions toward Trump feed their broader wariness about a string of recent decisions by bureau and Justice Department leadership. That caution would spill into any debate next year on Section 702.
Among the cases where intelligence surveillance proved highly contentious was the FBI's investigation into Russian meddling in the 2016 election, a political punching bag of Trump's that roiled the 2018 battle over the broader surveillance law. Four years ago, when Congress last reauthorized Section 702 — a piece of the bigger Foreign Intelligence Surveillance Act — it sparked an unusual opposition effort that married members of the House Freedom Caucus with privacy-minded Democrats.
The law ultimately got reauthorized, but only after last-minute chaos as then-President Trump first appeared to link it to “spying” on his campaign heading into the 2016 election before backpedaling and tweeting that the program was needed to go after “bad guys.”
Tucked into that 2018 reauthorization was language that has jumped back into the spotlight in the wake of the Mar-a-Lago search. The measure includes a provision that beefs up the penalty for the unauthorized removal or retention of classified information from one year to five years.
A receipt accompanying the Mar-a-Lago search warrant showed that some of the documents Trump took with him after leaving office were marked with “TS/SCI”—one of the highest levels of government classification.
As DOJ continues its probe, members of House GOP leadership and committee chairs-in-waiting are vowing to investigate next year, sending letters to the Biden administration signaling where they plan to dig after taking back the chamber. It’s the latest sour turn in the relationship between FBI leadership and many congressional Republicans, which started becoming antagonistic during the Trump era.
The surveillance program “had problems no matter what, but this certainly doesn’t help,” said Rep. Jim Jordan (R-Ohio), who is poised to chair the Judiciary Committee if the House flips. The Judiciary and Intelligence panels share jurisdiction over the broader surveillance law that Section 702 is a piece of.
And fights over a broader spiderweb of surveillance laws have only piled up since 2018, setting the stage for a showdown next year. In 2020, Congress failed to reauthorize three other surveillance powers related to roving wiretaps, lone wolf actors and a controversial phone records collection program.
Those proposals lapsed amid opposition from some progressive Democrats, division between Trump and then-Attorney General Bill Barr — and, in a recurring theme, a fierce intra-party fight among GOP lawmakers.
Then, in late September of last year, DOJ Inspector General Michael Horowitz released a report finding “widespread” non-compliance with a key step in FBI procedure designed as a guardrail for ensuring accuracy in surveillance applications. The report was the latest in a series dating back to 2019, when Horowitz determined that the FBI had an “authorized purpose” for opening the probe into Russia and Trump’s campaign — rebutting conservative criticism that it was a "witch hunt."
But Horowitz's 2019 report also found at least 17 “significant errors or omissions” in surveillance applications regarding former Trump 2016 campaign aide Carter Page.
Fitzpatrick indicated that any successful bill reauthorizing Section 702 would go broader than just the surveillance program to impose reforms addressing “a lot of the problems that occurred” during the FBI's investigation into the Trump campaign related to the foreign intelligence surveillance court. The special court that hears applications for warrantless surveillance may also be in line for an overhaul during next year's debate, given that lawmakers tried and failed to make changes to it back in 2020.
Before the Mar-a-Lago search rattled Trump's networks, House Republicans were already warning DOJ and the FBI about the hard road ahead on surveillance. Judiciary Committee members pushed Matthew Olsen, DOJ's assistant attorney general for the national security division, for details during a hearing last month.
And Rep. Darin LaHood (R-Ill.) bluntly told FBI Director Christopher Wray during a recent House Intelligence hearing that the bureau's "credibility with members of Congress when it comes to managing and executing this law is dubious at best.”
The FBI declined to comment when asked about any outreach it has done to lawmakers on Section 702. However, in a statement at the time in response to Horowitz’s 2021 report, the bureau accepted his recommendations and thanked him for his “determined focus on the FBI’s FISA process.”
Wray, during the House hearing this year, sought to assure lawmakers that the FBI is hearing their concerns on Section 702 and the "important" surveillance law more broadly. “I cannot stress enough ... how committed my leadership team and I are to making sure that the reforms that we've put in place have the effect that you rightly expect from us,” he said.
But Republicans aren't planning to take those assurances as a substitute for changing surveillance law.
"[T]he ridiculous action that the Justice Department took with the president only reinforces why … we’ve got to change that in a big way," Jordan said.
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