Paul Manafort and FISA Surveillance: Where Do Things Stand Now?

News broke last week that former Trump campaign manager Paul Manafort was the subject of FISA surveillance for the second time, namely during late 2016 and early 2017 (the first time was in 2014 and related to Manafort’s work in Ukraine). What is significant about this is that Manafort, during this time, was known to be in contact with then-President-elect Donald Trump. A CNN report last week noted that “[s]ome of the intelligence collected includes communications that sparked concerns among investigators that Manafort had encouraged the Russians to help with the campaign.”

According to the same report, the second FISA warrant was “to investigate ties between Trump campaign associates and suspected Russian operatives.” What is particularly notable from this report, however, is that “[s]uch warrants require the approval of top Justice Department and FBI officials.” In other words, for the federal government to obtain this FISA warrant to surveil Manafort, top officials in the Obama administration must have given their approval.

It should be noted that there is a significant difference between FISA surveillance and a criminal investigation. For a detailed explanation of what exactly a FISA warrant entails, see Asha Rangappa’s piece on Just Security. Essentially, there are two requirements that the FBI must meet. First, the FBI must provide evidence that Manafort knowingly spied for a foreign government. Second, every ninety days, the FBI must be able to show the surveillance produced foreign intelligence. During the second period, the FBI apparently had evidence indicating that Manafort “was encouraging [the Russians] to interfere in the presidential election.” Otherwise, it is hard to envision the FISA court granting an extension after the ninety-day period.

In addition to detailing what is required for a FISA warrant to be obtained, Rangappa notes that the primary purpose behind the FISA investigation is not criminal; rather, it is a national security or counterintelligence investigation. Accordingly, she continues, special prosecutor Robert Mueller could possibly use Manafort as a pawn in a larger game. Presumably, Mueller is interested in unmasking the Russians involved in the election meddling; if Manafort has ties to them—which is what the FISA warrant is intended to discover—then Mueller can use Manafort to understand who they are and what exactly their end goal is. To convince Manafort to talk, however, requires Mueller to hold an incentive over the former campaign manager. As Rangappa points out, “[t]he prospect of serious jail time . . . is usually effective,” although she also notes that spying is not necessarily a crime, and it does not yet appear that Manafort has done anything illegal with respect to collusion with Russian agents. Where the FISA warrant may be relevant, she states, is that any criminal activity detected during a FISA investigation may be used in a criminal case provided that the original purpose of the warrant was to obtain foreign intelligence.

On the opposite end of the spectrum, supporters of President Trump are interpreting this revelation as a sign that Trump has been vindicated. The second period of surveillance on Manafort occurred during a time which Manafort maintained a residence in Trump Tower as well as his home in Arlington, Virginia, the latter of which the FBI executed a pre-dawn raid on in late July. This gives President Trump’s claim that the Obama administration wiretapped him at least some degree of credibility although by no means confirmation.—even if Trump Tower was, in fact, wiretapped, there is no concrete evidence that demonstrates President Trump himself was surveilled.

So where does this leave us on the Manafort investigation and, more broadly, the ultimate details of election meddling?

While it requires more evidence to become publicly available, one thing is clear: the revelation of the second FISA warrant has the metaphorical effect of dousing high-octane gasoline on the raging dumpster fire that is the Russian election controversy.

Politically, there does not appear to be much of a net effect. President Trump’s detractors presumably view this as continued evidence of unfair practices underlying the 2016 election, where as his supporters more likely think this exonerates him. As one commentator has observed, however, it is hard to view this as completely vindicating the President, mainly because of his provocative claim that his predecessor surveilled him as well as his use of Twitter to make the accusation.

Legally, on the other hand, there could be much at stake.

Assuming for a moment that the FBI did obtain useful foreign intelligence as a result of the second surveillance period, the United States may be getting closer to determining the precise nature and extent of Russian meddling, although any sort of remedy is unclear.

On an individual level, Manafort may be faced with an upcoming criminal case. According to the New York Times, the FBI does plan on indicting Manafort, who is also being investigated for possible tax law and money-laundering violations.

It is worth mentioning again that although much of this information may have been obtained via a FISA warrant, as long as the original purpose of the warrant was to obtain foreign intelligence, it can be used in a criminal case. Rangappa’s theory that Mueller is attempting to gain legal leverage over Manafort to glean more information in his election (read: national security) investigation is compelling, although it remains speculation. This is all assuming that Manafort did not illegally collude with Russians during the election; if that is the case, he could be facing possible jail time, as some Trump associates have advocated for, should that be the case. Such information does not currently exist, at least for the public, nor will it for some time.

In a court of law, it remains to be seen what will happen to Paul Manafort and possibly others connected to the Trump administration. In the court of public opinion, however, it appears that Manafort needs to hope that supportive evidence becomes public soon—which, given the intelligence that the FBI has apparently collected, could be a long shot. Based on the totality of the evidence currently available to the public, it is clear that no party is winning.