After months of current and former federal officials insisting there was no merit to allegations the government conducted surveillance on Donald Trump or his campaign during the 2016 cycle, there are now reports that former campaign manager Paul Manafort was being wiretapped.
After Trump tweeted his frustration at the Obama administration for greenlighting the alleged wiretapping, former Director of National Intelligence James Clapper rejected and validity to such an assertion.
“For the part of the national security apparatus that I oversaw as DNI, there was no such wiretap activity mounted against the president-elect as a candidate or against his campaign,” said Clapper on NBC’s “Meet the Press” back in March.
But CNN’s revelation that the government did procure a FISA warrant against Manafort and conduct surveillance in on him in 2016 and 2017 brings such denials under the spotlight once again. Most importantly, did they lie?
Former federal prosecutor Andrew C. McCarthy says the way Clapper and others carefully worded their denials earlier this year probably leaves them some wiggle room.
“I always thought that the denials, as indignant as they were by people connected to the Obama administration and even from the Justice Department after Trump took it over were always carefully couched and very narrow,” said McCarthy.
“What I took the denials to mean was that they were saying they never targeted Trump himself for surveillance and even more specifically that Obama did not do it,” said McCarthy.
“I always thought that was quite narrow because as we know, the president does not go to the FISA court and get the authorization to do these surveillances, much less do the physical work to set up the surveillance himself,” said McCarthy.
“I always thought that the loudness and indignation of the denials was much broader than what the denials actually said read carefully,” he added.
According to CNN’s reporting, Manafort was under surveillance from 2014 to early 2016 and again from late 2016 to sometime earlier this year, including time when Trump was president. At issue, according to sources, was Manafort’s cozy relationship with the ousted pro-Putin regime of Viktor Yanukovich in Ukraine, and ultimately whether he was tapping those connections to aid Trump’s campaign in any way.
Still, the government’s pursuit of a FISA warrant is much different than a standard criminal search warrant.
“You have to show there’s probable cause that the subject is an agent of a foreign power. That’s importantly different from a criminal warrant. In a criminal case, you have to show that there’s probable cause that a crime has been or is being committed and that evidence of a crime is likely to be recovered in the place that you want to search,” said McCarthy.
McCarthy says the political circumstances surrounding the case should not impact the enforcement of the law but he says there is usually great sensitivity exercised when political events could be impacted. As a result this decision, should have been deliberated at the highest levels of government.
“That gets scrutinized, not only much more carefully at the FISA court, (but) it also should be scrutinized very heavily in the Justice Department, the FBI, and the upper ranks of the administration before you would even go to the FISA court to seek the surveillance,” said McCarthy.
The New York Times is reporting that special counsel Robert Mueller is using “shock and awe” tactics, meaning he is threatening witnesses with considerable punishment for not cooperating fully with the Mueller team.
McCarthy says we already saw that when the FBI conducted a pre-dawn raid of Manafort’s Virginia home in July. He points out that any raid conducted before 6 a.m. and allowing agents to pick the locks at a home require special permission from the court.
But perhaps the most curious part of the FBI’s physical raid on Manafort’s home was the timing of it.
“The search warrant that Mueller did came on the day after Manafort met with Senate Intelligence Committee investigators and on the very day he was supposed to testify before the Senate Judiciary Committee,” said McCarthy.
McCarthy suspects there could be multiple motives at work. One is simply that investigators are eager to determine exactly how much Russia did to influence the 2016 elections, which he believes is warranted.
However, in a politically charged atmosphere like Washington, he says some could be trying to make whatever evidence is in hand fit a political goal.
“I think there are other people looking to cement a political narrative that it was Trump collusion and Russian espionage that cost Hillary Clinton the election. There’s all kinds of factors and considerations that go into it. But certainly Manafort and his prior connection to this Ukrainian faction gives a lot of ammunition to the investigators,” said McCarthy.