Why Was Manafort FISA Tapped Rather than Criminal Tapped?

Congratulations to Donald Trump, who may have finally figured out how to prove his March 4 claim that there was a “tapp” on Trump Tower — by continuing to speak to Paul Manafort after FBI got a second FISA wiretap on him, at least according to the CNN’s report on the tap.

US investigators wiretapped former Trump campaign chairman Paul Manafort under secret court orders before and after the election, sources tell CNN, an extraordinary step involving a high-ranking campaign official now at the center of the Russia meddling probe.

The government snooping continued into early this year, including a period when Manafort was known to talk to President Donald Trump.

[snip]

The conversations between Manafort and Trump continued after the President took office, long after the FBI investigation into Manafort was publicly known, the sources told CNN. They went on until lawyers for the President and Manafort insisted that they stop, according to the sources.

It’s unclear whether Trump himself was picked up on the surveillance.

I mean, if you’re dumb enough to talk to a guy under active investigation, you should expect to be tapped. Trump should know this from his NY mobster buddies.

The CNN report — by the same team that last month revealed Carter Page had actually been wiretapped going back to 2014, too — is maddeningly vague about the dates of all this. Manafort was first targeted under FISA for his (and associated consulting companies, probably including Tony Podesta) Ukrainian influence peddling in 2014. Then the order lapsed, only to have a new one, possibly last fall, approved in association with the Trump investigation.

A secret order authorized by the court that handles the Foreign Intelligence Surveillance Act (FISA) began after Manafort became the subject of an FBI investigation that began in 2014. It centered on work done by a group of Washington consulting firms for Ukraine’s former ruling party, the sources told CNN.

The surveillance was discontinued at some point last year for lack of evidence, according to one of the sources.

The FBI then restarted the surveillance after obtaining a new FISA warrant that extended at least into early this year.

[snip]

The FBI interest deepened last fall because of intercepted communications between Manafort and suspected Russian operatives, and among the Russians themselves, that reignited their interest in Manafort, the sources told CNN. As part of the FISA warrant, CNN has learned that earlier this year, the FBI conducted a search of a storage facility belonging to Manafort. It’s not known what they found.

The gap would presumably have excluded June, given that Mueller reportedly didn’t learn about the June 9 meeting until the usual suspects started turning over records on it (though I may come back to that).

The report of a fall wiretap, based in part on intercepts of Russians, would put it well beyond the time Manafort got booted from the campaign (and might be consistent with the reporting of an earlier application followed by ultimate approval in the fall). The mention of a search of a storage facility suggests that Manafort would have been targeted under both 1805 (data in motion) and 1824 (data at rest, plus physical search like that used with the storage facility).

Here’s some relevant information from last year’s FISC and I Con the Record transparency numbers.

For the same authorities (1805, 1824, 1805/1824, and 1881c), the FISA Court, which uses different and in most cases more informative counting metrics, reports 1,220 orders granted, 313 orders modified, and 26 orders denied in part (which add up to I Con the Record’s 1,559), plus 8 orders denied, which I Con the Record doesn’t mention.

As an improvement this year, I Con the Record has broken down how many of these targets are US persons or not, showing it to be 19.9%. That means the vast majority of targeted FISA orders are targeted at people like Sergey Kislyak, the Russian Ambassador all of Trump’s people talked to.

This is the target number for the original report, not the order number, and it is an estimate (which is curious). This means at least 28 orders target multiple people. Neither ICTR nor FISC reveals how many US persons were approved for 705b, meaning they were spied on when they went overseas.

I include this, especially the FISC numbers (the top ones), to show that for the category that Manafort would have been targeted under, the court outright rejected 8 applications, denied in part — perhaps by approving only some of the facilities in the application — 18, and modified — which can often be minimization procedures — 260. Note, too, that among all the individual orders approved last year, roughly 336 were targeted at Americans like Manafort and Page. I assume there would be more minimization procedures on those targeting Americans, especially those who hang out with political candidates or the President.

All of which is my way of saying that for Manafort, in particular, the FBI may have had to use some kind of clean team to separate the political items from the foreign intelligence ones. The members of Congress that are the most likely sources for this story probably would have known that too, but it wouldn’t serve the point of the leak as well if that detail were included.

One more point.

The CNN piece is clear: FBI had a FISA order targeting Manafort (and probably others, probably the same ones who’ve been asked to testify, including Tony Podesta’s group), then let it lapse. They then got an order focused on election-related issues.

By the point they got the election-related FISA, the FBI was very deep into their investigation of Manafort for money laundering (and in NY, where FBI agents are notoriously gabby).

But at least given all the public reporting thus far, there have been no reported criminal warrants against Manafort, at least not before the no-knock search in VA this summer.

Which is odd, because they sure seem to have probable cause against him for crimes, as well. If Manafort were targeted by a criminal warrant, it’s nowhere near as clear that any minimization would be overseen by a court. That is, it might be more likely that Trump would get picked up in his rash conversations with someone known to be under investigation if that person were targeted with a criminal warrant than if he were targeted under FISA.

One, final, point. Craig Murray, who ferried something (though not emails) to Julian Assange in September 2016 claimed the emails had been picked obtained by American National Security types wiretapping [John] Podesta because of the Podesta Group’s lobbying for Saudi Arabia. As I noted at the time, that didn’t make any sense, partly because Tony would have been the target, not John, but also the FBI wouldn’t be all that interested in lobbying for Saudi Arabia.

Murray claimed the documents came from someone in the national security establishment, and implied they had come from legal monitoring of John Podesta because he (meaning John) is a lobbyist for Saudi Arabia.

Again, the key point to remember, in answering that question, is that the DNC leak and the Podesta leak are two different things and the answer is very probably not going to be the same in both cases. I also want you to consider that John Podesta was a paid lobbyist for the Saudi government — that’s open and declared, it’s not secret or a leak in a sense. John Podesta was paid a very substantial sum every month by the Saudi government to lobby for their interests in Washington. And if the American security services were not watching the communications of the Saudi government paid lobbyist then the American intelligence services would not be doing their job. Of course it’s also true that the Saudis’ man, the Saudis’ lobbyist in Washington, his communications are going to be of interest to a great many other intelligence services as well.

As a threshold matter, no national security agency is going to monitor an American registered to work as an agent for the Saudis. That’s all the more true if the agent has the last name Podesta.

But that brings us to another problem. John Podesta isn’t the lobbyist here. His brother Tony is. So even assuming the FBI was collecting all the emails of registered agent for the Saudis, Tony Podesta, even assuming someone in national security wanted to blow that collection by revealing it via Wikileaks, they would pick up just a tiny fraction of John Podesta’s emails. So this doesn’t explain the source of the emails at all.

They would — and apparently were — interested in tapping all the corrupt people working with corrupt Ukrainians, including Manafort and, maybe, Tony (but not John).

This in no way confirms Murray’s explanation — his story still makes no sense for the reasons I laid out when I first wrote the post. But I find it particularly interesting that Tony Podesta may well have been wiretapped along with Manafort, for his Ukrainian influence peddling, not his Saudi influence peddling, earlier in the year last year.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

11 replies
  1. Evangelista says:

    ” if you…talk to a guy under active investigation, you should expect to be tapped.”

    As you note, Manafort was not under “active” Criminal “investigation”.

    As you note, the “justifying” interest, accepted as “reason” by the FISC was an FBI (or associated “I”C component) desire to ‘go fishing’ in Ukrainian ‘waters’ (working as private contractors for the private enterprises utilizing U.S. State Depatment resources in their efforts to obtain ownership of the government there).

    So, to turn your question by putting what should be ‘an American spin’ on it, Why should anyone engaging in domestic interactions, even with someone the FBI Mafia and their FISC RICO enablers are (‘legally’ illegally) interfering in the privacy of communications of for ostensible ‘foreign affairs “security” reasons’ have to assume that HIS entirely domestic communications are being interfered with for the FBI Mafia and its sleaze-ball self-styled ‘master-spy operatives’ being not competent enough, or worse, too lazy and don’t-give-a-damn about being lawful, to sort out and work around?

    Come on: We the People are supposed to own these United States. And We are supposed to accommodate the shit-for-brains Clouseaus of the effectively useless and uselessly ineffective self-styled “intelligence” community that creates more insecurity for all of us than no intelligence community at all would?

    Something is seriously turned around and inside-out.

    And you appear to have bought into it.

    The bubble-brained bone-heads of the “We have the means to spy, so we can use them to spy” bureaucracy, not the Donald Trumps, or any of the rest of us, are the ones that need to be controlled, who need to control themselves, whose “controllers” who don’t control them need to be held to account for failing to control them and for allowing them off leashes and to run wild damaging our national community.

    The FISC is no more a legal United States Court than the FBI is a legal United States intelligence, or even investigative, agency. Without license that is illegal, and taking license that is also illegal, neither FISC nor the FBI Mob that court RICOs with could operate within the United States. Both are government gangster, and gangster government institutions.

    • bmaz says:

      Holy shit. This is truly world class gibberish. You have really outdone yourself. The last two paragraphs are gibberish gold, par excellence.

      • Evangelista says:

        Thank you, bmaz,

        I take it that your compliment means you have read the United States Constitution and have reviewed the meanings incorporate in the English Law System’s Principle ‘Presumption of Innocence’, which defines each individual responsible to be “law unto himself” within a control framework of Peer Jury Review (Did, or did not, in the case at bar, the individual exercise sufficient and reasonable judgment in defining his/her own law, and then follow it within reasonable bounds with rational adjustments for variations in circumstances then and there occurring?), which is corner-stone and foundation for Liberty.

        Certainly in modern “1984” compliant Commercial United States Socialist-State Law where an overclass of policing controllers assign the individuals of The People rules and demand under threat of ‘civil penalties’ impositions the people comply with the over-class’s imposed rules, and in the post-liberty modern vernacular developed to express that Police-State law system’s preferences, “gibberish” is the descriptor du jour for phrasings that express the old concepts and referencing to the fundaments of individual responsibility requisite for liberty.  It is for recognition of his adjustment in word-meaning that I recognize your “gibberish” to be complimentary.

        So, what can we do to get the Commercial Law foundationed Elite-Overrun Socialist United States and the bureaus and bureaucrats and non-Constitutional court and other institutions it has saddled onto the land under control?

        Do you have any ideas?  Or have you just given up?  Are you just letting them and their forces roll you along with their flood?

        My idea is to start trying them, the worst first, by legal Constitutional law and forms, and to Constitutional standards, and then go to hanging the worst first for Treason.  They have overthrown the Constitutional United States to superimpose their pseudo-legal Commercial Law based United States.

        And they do have the whole, our nation, our states, all of our systems, on a fast-track slide toward the dumpster…

    • Dev Null says:

      Have you considered learning idiomatic English?

      I have no idea what you are trying to say.

      On the basis of this and your previous comments, I’d be tempted to call you a Russian bot…

      … but *surely* Russian bots are capable of more coherent sentences.

      Srsly, why aren’t you embarrassed?

      • Evangelista says:

        Dev Null,

        The complaint I hear most often is that my English is ‘too idiomatic’, “especially for conveyance of serious thoughts”.  That is, readers perceive my phrasing too light-toned for the weight of the thought they contain.

        I take it from your “I have no idea what you are trying to say.” that my combination of light presentation and content weight caused the meanings in my ‘rant’ (which is what it is, against abuses by government employees of self-ascribed powers and illegally assumed prerogatives, and through those abuses abuses of us, We the People, who, in correct Constitutional United States order are their superiors, not their inferiors) to elude you.

        Re-read my paragraphs carefully until you find them not seeming figments of propaganda-inculcated imagination (or, as you phrase, “Russian bots”, which actual research is, every day in every way proofing more and more to be propaganda invention) and, instead, conveying the sense they contain.  Or, alternatively, if you are pressed for time, use the above parenthetic thumbnail to get a quick grip on the gist.  My paragraphs do make sense and are coherent;  they are just not the usual.  For this they require intellectual adjustment to follow.

      • Evangelista says:

        P.S.      [To achieve plagiarism you have to leave out the attribution and omit the quotation marks]

  2. Willis Warren says:

    The original warrant, from 2014, was based on his involvement with Ukrainian/pro Putin groups and his failure to disclose his profits from them, right? At that point, they probably had more on his spying for Putin than on his laundering. The renewal was probably just familiar faces.

    why does the leak benefit Congress? It seems more likely that this benefits Trump. As his followers have been gloating non stop about how Obama really did wiretap him.

  3. 'Merican says:

    Is what you say easier get FISA than Criminal warrant or FISA keep secret from rest of government, but Criminal warrant maybe not? FBI is not intelligence agency is law enforcement agency why have access FISA? You write many articles about the shadow brokers, what you think FISA or Criminal for the shadow brokers? You thinking anyone in US government is looking for the shadow brokers? US government not even say name “name that shall never be spoken”. What is best way discover national security letter sent to your service provider? …asking for a friend!

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