What the Media Get Wrong About Manafort Wiretapping
Warrant came under authority to build counterintelligence operations focused on foreign nations, not criminal cases
CNN on Tuesday loudly trumpeted but then overhyped its big scoop in special counsel Robert Mueller’s Russia investigation — that the former chairman of President Donald Trump’s presidential campaign was the subject of a wiretap.
News anchors around the clock suggested that the wiretap authorized by the Foreign Intelligence Surveillance Act (FISA) Court means that political operative Paul Manafort was probably guilty and speculated that perhaps Trump himself was implicated.
Even expert guests on CNN cast the story in those terms. Former federal prosecutor Michael Moore explained what the Justice Department had had to demonstrate in order to get a warrant from the FISA Court.
"They'd have to give some indication that there was evidence that a crime was likely being committed," he told anchor Brooke Baldwin. "I mean, it's not a simple thing to get a wiretap. And my guess is they had that for some time."
That description is puzzling to experts who have experience with FISA warrants. Andrew McCarthy, who was the lead prosecutor in the 1995 trial of World Trade Center bombing mastermind Omar Abdel-Rahman — the so-called "Blind Sheikh" — said FISA judges do not have to find evidence of a crime.
The standard, probable cause, is the same as is required for a warrant in a criminal case. But McCarthy said the purpose of a FISA warrant is not to build a criminal prosecution but to conduct a counterintelligence or counterterrorism operation. The reason for conducting surveillance on an American citizen in such an operation is to find out more about the activities of a foreign power or terrorist organization.
CNN, quoting anonymous sources, reported that authorities first obtained a FISA warrant in 2014 while Manafort was doing political consulting work for Ukraine's pro-Russia former ruling party. The network reported authorities stopped the surveillance last year because of a lack of evidence.
"That, to me, doesn't make any sense," McCarthy told LifeZette.
That is because, again, FISA warrants are not designed to gather evidence. More likely, McCarthy said, the FBI determined that the wiretap was not producing useful intelligence.
To get permission to conduct the surveillance, McCarthy said, the Justice Department would have had to show that Manafort was acting on behalf of a foreign country. But he added that this does not, in and of itself, mean that Manafort broke the law. An American can act a foreign agent without violating U.S. law.
"As long as you disclose that and your actions are lawful, there's no crime," he said.
Manafort: Release Transcripts
Manafort, through his lawyer, called on the Justice Department on Tuesday to release all of the transcripts of its surveillance of him to prove that he did nothing wrong.
Manafort reportedly did not register as a foreign agent, which could open him to legal liability. And it is possible he acted unlawfully in some other way. Indeed, CNN reported that officials have told Manafort he is likely to be indicted.
|Warrant applications & denials|
Joseph diGenova, who served as U.S. attorney for the District of Columbia in Ronald Reagan's administration, said counterintelligence officials seeking a FISA warrant on Manafort would have had to show contact and communications with a foreign government.
"That's not surprising considering where he's been doing business and in Ukraine for the last 15 years," he said.
DiGenova said he finds it curious that authorities resumed their surveillance of Manafort after he joined the campaign.
"The real question is why all of a sudden … he became of interest [again] to the FBI and the Justice Department. That's the real question," he said. "This actually raises many more questions about how it would have been requested and for what reason."
The surveillance calls into question whether then-President Barack Obama's political appointees acted improperly, diGenova said.
"This really complicates the narrative for almost everybody," he said.
CNN has stressed how hard it is to get a FISA warrant. But statistics gathered through Freedom of Information Act requests by the Electronic Privacy Information Center suggest that FISA Court judges nearly always sign off on surveillance requests. Last year, judges rejected just 34 of 1,485 FISA applications for electronic surveillance or physical searches, a rejection rate of just 2.4 percent.
And 2016 actually was an unusual year. In the history of the program, dating to 1979, FISA judges have turned down 51 out of 39,654 applications — just 0.1 percent.
DiGenova said the Justice Department does not have to reach an exceptionally high bar to get a surveillance warrant since the aim is not to prosecute Americans but learn about the activities of foreign agents.
"It's pretty low," he said. "It's not that complicated."
FISA Warrants 'Shouldn't Be Hard to Get'
McCarthy said the rejection rate is low, in part, because the Justice Department is careful about how it exercises its authority. He also noted that the courts had no role at all in counterintelligence surveillance before Congress passed FISA in 1978.
"It's a combination of both, but if you think about it, these should not be hard to get," he said. "It's not a high bar, and it shouldn't be."
Under current law, if counterintelligence agents uncover evidence of a crime by an American, the procedure is to hand that off to the criminal investigation side of the FBI. That happened in the Blind Sheikh case, McCarthy said.
So it is possible, as some talking heads speculated, that a wiretap of Manafort picked up something incriminating said by Trump during a phone conversation. But McCarthy said given the sheer volume of anti-Trump leaks from outgoing or holdover Obama officials, it seems highly unlikely such compelling evidence would have remained secret.
"Obviously, if they had a smoking gun, we'd have heard about it," he said.
DiGenova said he believes the CNN story somewhat vindicates Trump's much-criticized tweet in May that Obama had his "wires tapped" at Trump Tower.
"In a general sense, Trump was right," he said.
There is no evidence that Trump was named in a FISA warrant or that his phones were tapped. But if agents were monitoring the conversations of Trump's campaign chairman, it is possible — perhaps even likely — that agents recorded then-candidate Trump, diGenova said.
"It is, indeed, a distinction without a difference," he said.
McCarthy said "vindication" overstates the case since it was "reckless" of Trump to accuse his predecessor of ordering him to be wiretapped. But he said it seems more likely than ever that government agents made recordings of conversations that included Trump.
"I've always thought that the denials from the Obama camp were very narrow, even though they were very indignant," he said.
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