How The FISA Order Against Manafort Could Spell Big Trouble For Trumpworld

Douliery Olivier/Sipa USA USA
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Two bombshell reports that dropped Monday dispelled any lingering doubts about former Trump campaign chairman Paul Manafort’s serious legal exposure. First CNN reported that the FBI was monitoring Manafort’s communications prior to and after the election, and, within the hour, the New York Times reported that federal prosecutors warned him that they planned to indict him.

Legal experts told TPM that these reports also have significant implications for Trump campaign and administration officials, including President Donald Trump himself, as any communications between Manafort and the President, or Manafort and other campaign aides, about sensitive matters would have been recorded and stored while the order was in effect.

“You can always use that information,” Robert Deitz, former senior councillor to the director of the CIA and general counsel at the National Security Administration, told TPM. “Manafort could easily have been picked up in any of these communications citing the President for something: ‘The President told me X or I told the President Y.’ That doesn’t make it admissible evidence per se, but that’s the kind of thing that I think would scare the hell out of a principal in the investigation.”

Deitz noted that all communications obtained under an order from the Foreign Intelligence Surveillance Act (FISA) court—like the one that CNN reported was in operation for Manafort through the start of the Trump administration—are maintained in what the intelligence community refers to as “the primordial soup.”

“Stuff you either didn’t get around to reviewing, or stuff you kind of took a first cut at and didn’t think was significant, you don’t erase it,” he said.

Manafort spokesman Jason Maloni adamantly denied that there was anything untoward in the former campaign chairman’s private communications, and noted that it was a felony to reveal the existence of a FISA order.

“If true, it is a felony to reveal the existence of a FISA warrant, regardless of the fact that no charges ever emerged,” Maloni said in a statement late Tuesday. “The U.S Department of Justice’s Inspector General should immediately conduct an investigation into these leaks and to examine the motivations behind a previous Administration’s effort to surveil a political opponent. Mr. Manafort requests that the Department of Justice release any intercepts involving him and any non-Americans so interested parties can come to the same conclusion as the DOJ – there is nothing there.”

To obtain an order from the FISA court, the government must establish probable cause that an individual is the “agent of a foreign power,” and federal agents are then required to minimize any communications that don’t pertain to the basis for that order.

The CNN report also explicitly referred to “communications that sparked concerns among investigators that Manafort had encouraged the Russians to help with the campaign”—intelligence that would directly pertain to special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 election and whether Trump associates collaborated in those efforts, which originated with the FBI.

Though Manafort left the campaign in August 2016, he continued to be in touch with Trump and his team through early 2017. The content of those conversations would be of overwhelming interest to Mueller’s team, former federal prosecutors told TPM, particularly if investigators are trying to convince Manafort to cough up whatever dirt he may possess on other Trump associates.

“The $64,000 question is whether there is anything to this,” said Michael Zeldin, who served as special counsel to Mueller when he was the assistant attorney general in the DOJ’s Criminal Division. “That is, did Manafort willfully provide intelligence information to a foreign power? And, if so, who else has knowledge of or participated in the activity?”

“If he did,” Zeldin continued, “the question for prosecutors is whether Manafort has a story to tell that will lead them to offer a plea bargain type of arrangement in exchange for his complete and truthful testimony.”

Both Zeldin and Nick Akerman, a former prosecutor on the Watergate investigation, pointed to reports of the strong evidence Mueller is building against Manafort to bolster theories that prosecutors are trying to flip him. Though the Times report on Mueller’s team’s warning to Manafort doesn’t indicate the alleged crimes for which he could be indicted, the former campaign chair is reportedly under investigation for failing to register as a foreign agent, tax evasion and colluding with a foreign power against the interests of the U.S.

“The bottom line is that the people who really should be worried now are the President, Donald Trump, Jr., [Trump son-in-law and White House adviser Jared] Kushner,” Akerman said. “People who were at that June 9 meeting, and people that Manafort could finger because ultimately what I think they’re trying to do is come at him with all the firepower they have and get him to turn and testify.”

Manafort was present at that June 9 meeting in Trump Tower, where Trump Jr. was told he would receive damaging information about Hillary Clinton as part of a Kremlin-directed effort to help his father’s campaign.

Trump, Kushner, Manafort and Trump Jr. have all previously denied working with Russia to influence the election.

According to CNN, a previous FISA order against Manafort tied to his consulting work for a pro-Russia Ukrainian political order began in 2014 and expired sometime before he was promoted to campaign chairman in May 2016. CNN’s report noted that the order that covered Manafort’s communications through “early this year” was not in effect at the time of the Trump Tower meeting, suggesting it wasn’t issued until after early June 2016.

Zeldin, Mueller’s former special counsel, said that FISA orders generally require renewal every 90-120 days, and CNN’s story implied that Manafort’s order is no longer operative.

Legal experts said that cutoff could have several interpretations: It could suggest either that Mueller’s team already had obtained all the information they needed, or that, after lawyers for Manafort and the Trump administration cut off contact between the two parties, the wiretap was no longer a valuable avenue.

“If he stops talking to people, then there’s nothing to intercept,” Zeldin said.

ABOUT THE AUTHOR

Allegra Kirkland is a New York-based reporter for Talking Points Memo. She previously worked on The Nation’s web team and as the associate managing editor for AlterNet. Follow her on Twitter @allegrakirkland.

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