Paul Manafort Isn’t a Deep-State Martyr

It’s been a bad few weeks for Paul Manafort.

First, CNN reported that U.S. government investigators obtained a Foreign Intelligence Surveillance Act (FISA) warrant to wiretap the former Trump campaign chairman both before and after the 2016 presidential election. The Wall Street Journal later reported a slight variation on that story. According to the Journal, while the government did obtain a warrant to surveil Manafort, it was not for real-time communications monitoring and may have instead covered requests for communications, probably email, stored in the cloud.

The CNN story touched off a torrent of additional Manafort scoops. The New York Times reported that in addition to a no-knock search warrant executed at his home, law enforcement searched a storage locker belonging to Manafort, and prosecutors informed him they intended to seek an indictment. The Washington Post followed with the revelation that during the campaign, Manafort had offered private briefings about the election to a Russian oligarch in President Vladimir Putin’s inner circle. The Times reported that Manafort also recently started getting paid to advocate for a referendum on Kurdish independence from Iraq, a development opposed by the United States. Today, the Atlantic reported the details of Manafort’s email exchanges with the Russian oligarch’s staff.

And to all this, Manafort’s spokesman Jason Maloni has a “crystal clear” explanation: mere politics.

Telling NPR that the CNN story is “all you need to know about this case,” Maloni argued that the fact the government obtained “not one but two FISA warrants” proved the investigation was “entirely politically motivated.” He claimed “the Obama administration sought to surveil a political opponent” and that “what should be very, very concerning is that political motivations were behind the FISA warrant.”

We’re not sure what to make of the Manafort FISA story — except that insofar as he is alleging political espionage against Manafort, Maloni is almost surely full of beans. Let’s unpack the story a bit.

As an initial matter, a big word of caution is in order about whether there was a FISA warrant to surveil Manafort at all. It’s not clear what’s true here. The Journal account, as we noted, differs in significant respects from CNN’s. And the Journal does not specifically report that the warrant took place under FISA, though it does imply it circumstantially. Other news organizations have not offered much in the way of additional reporting or clarification, and few have backed up CNN’s account. So there’s good reason to be cautious.

Ironically, one group that’s taking the CNN reporting of a FISA warrant against Manafort on its face is Team Manafort itself, which has adopted the notion that the surveillance took place as a convenient punching bag. Assuming for a moment that this is correct, then Maloni would be right in his criticism of exactly one aspect of the episode: the leaks of FISA information. The universe of people who would know about such surveillance would be small, the material would be highly classified, and the civil liberties violation would be serious. As we wrote with Shannon Towaga Mercer on Lawfare:

The CNN story … discloses FISA wiretaps against a named U.S. person. Whatever Paul Manafort may have done, he is a citizen of this country, and this is an egregious civil liberties violation. It’s also a significant compromise of national security information. Simply put, FISA information should never leak. When it does, it erodes the systems through which the government protects national security—and it rightly erodes public confidence that the systems designed to protect civil liberties work as intended.

Political leaking of wiretapping information is the stuff of the Hoover era. It has no legitimate place in our politics.

Indeed, if there were a FISA warrant, then the leak of its existence would represent a serious breach. By contrast, Maloni’s attempt to conflate politically motivated leaking about a FISA warrant with the idea that a FISA warrant would have been issued for political reasons is almost certainly nonsense. Certainly, he provides no evidence that would lead a reasonable person to believe that.

If a FISA warrant — or two — were issued involving Manafort, here’s what would have to be true.

The government would have gone through an extremely rigorous process in order to obtain a FISA warrant. That process is designed to guarantee that, if a FISA was in fact obtained for Manafort, it was not an exercise in political spying. It would mean the FBI developed sufficient evidence to persuade a federal judge that there was probable cause to believe that Manafort was functioning as an agent of a foreign power. That application would have been many pages thick. It would have contained sworn evidence. It would have been personally signed by the attorney general or the deputy attorney general. And then it would have been approved by a judge sitting on the FISA Court.

All of these people would have acted knowing exactly how politically explosive FISA surveillance against the former campaign manager of a major party candidate would be if it ever became public. One doesn’t need to know anything about the specific warrant or the evidence that supported it to know this matter would have been handled with extreme care by all involved. If a FISA warrant was issued here, every “i” was dotted and every “t” was crossed.

Some critics have rejected this argument by claiming the Foreign Intelligence Surveillance Court (FISC) is merely a rubber stamp. They do so by noting the government’s win-loss rate in the court. If the FISC approves almost all orders — so the argument goes — then it must not serve as much of a check at all. But that argument misses a number of important points. First, the government’s rate of success in getting normal Title III criminal wiretaps and plain old search warrants is also very high. Yet we recognize that judges, along with the legal burden they impose, function as a meaningful constraint in that context. When there’s a known standard and a great deal of experience meeting it, a litigant knows what it needs to do prior to submitting an application.

Additionally, the win-loss rate in the FISA context is deceptive, because when an application is deficient, the FISC practice is to identify the defects and allow the application to be revised and resubmitted. This informal but long-standing practice occurs with both the FISA judges and also with the court’s staff attorneys. This means that a finished FISA application is often better understood as the outcome of an iterative back and forth not just between the FBI and the Department of Justice’s National Security Division (NSD), but also between NSD and the court. This routine practice warps the win-loss ratio and makes it seem like the court is far more of a rubber stamp than it really is. This is why the Administrative Office of the U.S. Courts now reports the number of FISA warrants “modified” — as opposed to granted or rejected; the reported number of modifications is not trivial.

FISA applications do not generally become public. But there are two bodies of evidence — other than the descriptions of the process by participants — that give a window into its rigor. One is the declassified litigations that took place before the court over errors on the government’s part in both the 215 and 702 programs. Only someone with real ideological blinders can read those documents and fail to see a serious judicial oversight process at work.

The second, and more directly relevant, case is the many instances of specific FISA surveillances that have faced federal court challenge when their fruits have ended up in criminal proceedings. While uncommon, the cases have added up over the nearly 40 years of FISA’s life. Many cases have been reviewed by both federal district courts and federal courts of appeals. There is not a single case in which a subsequent reviewing court has found a FISA wiretap or physical search application defective. That should tell you a lot about the integrity of the underlying processes.

There are still a number of open questions — including whether there really was a FISA wiretap of Manafort at all. But if such a warrant existed, you can bet your left arm it was not the product of any political spying. Critics sometimes allege that lots of FISA surveillance is unjustified. Color us unimpressed until they find a single case of a single court finding a single person to have been unlawfully surveilled under an individual FISA warrant. Until then, we’ll assume that any FISA surveillance of Manafort — if it took place at all — reflects something real about Manafort’s conduct.

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