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Law & the Courts

Manafort To Be Indicted? Was Trump Tower Wiretapped? First Thoughts on Two Big Scoops

Just when the Russia investigation was sliding onto the back pages . . . tonight happened. The first scoop, from the New York Times, indicates that Paul Manafort may soon face criminal charges:

Paul J. Manafort was in bed early one morning in July when federal agents bearing a search warrant picked the lock on his front door and raided his Virginia home. They took binders stuffed with documents and copied his computer files, looking for evidence that Mr. Manafort, President Trump’s former campaign chairman, set up secret offshore bank accounts. They even photographed the expensive suits in his closet.

The special counsel, Robert S. Mueller III, then followed the house search with a warning: His prosecutors told Mr. Manafort they planned to indict him, said two people close to the investigation.

To be clear, these potential indictments may not be directly related to the 2016 election and may relate to financial dealings independent of Manafort’s relationship with Trump. Mueller is reportedly looking at possible “violations of tax laws, money-laundering prohibitions and requirements to disclose foreign lobbying.”

As if the Times report wasn’t enough, CNN followed up with the revelation that is tearing up Twitter as we speak. The government allegedly wiretapped Manafort, including during times when he worked with Trump:

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.

Some of the intelligence collected includes communications that sparked concerns among investigators that Manafort had encouraged the Russians to help with the campaign, according to three sources familiar with the investigation. Two of these sources, however, cautioned that the evidence is not conclusive.

According to CNN, Manafort had been the “subject” of an investigation that dated back to 2014 that was related to his work for the former Ukrainian government. The surveillance was discontinued “for lack of evidence” but then restarted again under a new FISA warrant “that extended at least until early this year.”

If you read the CNN report closely, you’ll note that there is much that is “unclear” (to use CNN’s words.) The new FISA warrant was allegedly related to suspected contacts between Manafort and Russian operatives, but it’s unclear where his phones were tapped, or if they actually swept up conversations with Trump.

What to make of all this? First, if the reports regarding Manafort are accurate (a big if), then this is disturbing news about the former campaign chair for the president of the United States. As our Andy McCarthy has explained, to obtain a FISA warrant the government has to bring forward evidence sufficient to establish probable cause that the wiretap target is the agent of a foreign power. That’s not a terribly high evidentiary threshold, but if there also exists sufficient evidence to indict Manafort (possibly for unrelated acts), then the stakes escalate considerably.

None of this means that Manafort is actually guilty of anything, but only the most mindless, tribal partisan would look at these developments with anything but concern and alarm. Potential corruption that close to the president – especially when connected with our nation’s chief geopolitical foe – is deeply problematic.

But that’s not all there is to this story. Not by a long shot. Some Trump defenders are taking the news that Manafort may have been wiretapped (possibly even in Trump tower) as vindication of Trump’s claims this March that “Obama had my wires tapped’ in Trump Tower just before the victory.” Department of Justice officials from both the Obama and Trump campaigns have denied Trump’s claim, and on September 4 his own Department of Justice responded to a Freedom of Information Act request by stating, “Both FBI and NSD confirm that they have no records related to wiretaps as described by the March 4, 2017 tweets.”

Obviously, wiretapping Manafort is not the same thing as wiretapping Trump, but the repeated, blanket denials seem disingenuous if Trump is actually on tape. The legal distinctions do matter, but these legal distinctions tend to get lost in the heat of partisan debate. I hope and pray that DOJ officials’ desire to rebut the president didn’t get ahead of their prudence. Would “no comment” have been a better response than a vigorous denial? 

At the same time, Trump partisans need to understand that it’s outrageous to wiretap Manafort only if the law and evidence don’t support the DOJ’s action. If there was probable cause that he is or was an agent of a foreign power, his status as Trump’s campaign chair doesn’t and shouldn’t protect him from appropriate scrutiny. Did the FBI do the right thing? Time will tell. 

That’s the key – time will tell. It’s important to understand that we don’t know any of the key facts. Unless and until we see evidence, judgment as to whether Manafort (or anyone else in the administration) is corrupt will have to wait. Final judgment about the FBI’s actions will have to wait as well. The phrase “fog of war” comes to mind. We’re in the midst of a dense fog, and we can barely the road ahead. I know enough to be concerned. I know that conclusions are premature. I also hope that the Robert Mueller continues to work with all deliberate, competent speed. Uncertainty, speculation, and reflexive tribal rage are all bad for the American body politic. In due time, we’ll need light. Lord knows we’ve endured enough heat.

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