Eric Felten: How many were surveilled on Trump team?

Eric Felten is a meticulous and literate reporter as well as one of my favorite analysts of the mysteries of Russiagate. We have previously posted Eric’s July 1 RealClearInvestigations column “Insinuendo: Why the Mueller Report doth repeat so much.” Eric waded further into the Mueller miasma in the RCI column “The shaky foundations of Mueller’s footnotes.” Eric also took up “The Mifsud mystery” and, most recently, asked “Why Was the FBI Incurious About a Hot Collusion Tip Involving This Man?” Today Eric has yet another question. He asks “How Many Spy Targets Were There in Russiagate? One … or Four?” (with links omitted below). RCI authorizes the republication of its articles with attribution and we are happy to take advantage of the opportunity here. Eric writes:

It has been more than a year since it was revealed that federal agents secured warrants to surveil onetime Trump presidential campaign adviser Carter Page both before and after the election. In all the arguments over whether those warrants were legitimately obtained, a related question has largely been neglected: Was Carter Page the only person in the Trump orbit to be put under surveillance? There is reason to think others were too.

A little-publicized Capitol Hill exchange suggests the possibility that three other campaign figures – Gen. Michael Flynn, Paul Manafort and George Papadopoulos – were also the targets of FISA-approved surveillance.

This would be especially significant in the case of Flynn and Manafort because unlike the other two they were high-level figures in constant contact with Donald Trump. Investigators are generally empowered, under FISA’s “two hop” rule, to collect communications not only of the target, but of anyone in contact with the subject (hop one) and then anyone communicating with those contacts (hop two). Casting the net even wider, investigators are authorized to collect archived communications from well before the original warrant was issued. This suggests that Trump might not have been far off when he alleged that the Obama administration had his “wires tapped” in Trump Tower.

The possibility of more spy warrants emerged last December when former Attorney General Loretta Lynch was interviewed by members of the House Judiciary and Oversight committees. (The exchange was reported by Breitbart News and Epoch Times after a transcript was released in June.)

Though conducted behind closed doors, the interview did not take place in a classified setting — meaning participants couldn’t discuss any classified information, such as the existence of an unreleased FISA warrant. So a problem arose when Congresswoman Sheila Jackson Lee (D-Texas) brought up FISA warrants in the preface to a question. “I want to talk about the spring, summer, and autumn of 2016,” she said. “Carter Page, at the time, was suspected of being a Russian asset; George Papadopoulos had told the Australian ambassador that Russians had Hillary Clinton emails; Paul Manafort had been named Trump campaign manager; Michael Flynn was Trump’s chief national security adviser and foreign policy adviser. One thing that all of these persons had in common was that each was the subject of a FISA court investigation.”

Lynch didn’t contradict Jackson Lee, but a senior Justice Department lawyer at the interview, Bradley Weinsheimer, did dive in: “I would object to that question as it potentially gets into possibly classified information.”

Jackson Lee defended her question by saying: “These were simply statement of facts that are in the public domain. They are in the newspaper about Mr. Page, Mr. Papadopoulos, Mr. Manafort, Mr. Flynn.” She was mistaken. The only information about FISA warrants that was public involved Page. That suggests Jackson Lee may have just been confused. She did not respond to repeated efforts by RealClearInvestigations to ask her to clarify her statement.

But Jackson Lee was not the only lawmaker at the Lynch interview who stated that federal investigators were using FISA warrants on Trump figures in addition to Page. Rep. Jim Jordan (R-Ohio) said, “The FBI director told us just a couple days ago that there were several individuals that they had — went to the FISA court to get a FISA warrant for. And we know some of those individuals were associated with the Trump campaign.”

Weinsheimer objected again to any talk “about FISA applications.”

“Okay. I misstated,” Jordan said, noting as he walked the claim back: “They opened a file on four individuals, my understanding is – if we can correct the record – not a FISA application, but a file on four individuals” and “some of those individuals were associated with the Trump campaign.”

But what if the lawmakers were not mistaken? Given the counterintelligence nature of the investigation, it would be surprising if more FISA warrants hadn’t been employed. Lawyers Gabe Rottman and Linda Moon put the legal issues succinctly in an article at the Reporters Committee for Freedom of the Press website: “FISA permits the government to search, surveil, and monitor people in the United States not to stop or punish crime, but to spy or hunt spies who are agents of foreign powers.”

To support its assessment that a longtime associate of Paul Manafort, Konstantin Kilimnik, was connected to Russian intelligence, the FBI relied in part on “emails obtained through court-authorized search warrants,” according to the Mueller report. The court authorizing such counterintelligence warrants, says a former federal prosecutor, would almost certainly have been the Foreign Intelligence Surveillance Court (FISC).

Also consider the language used about Papadopoulos in the final report issued by Special Counsel Robert Mueller. At the instruction of then-Deputy Attorney General Rod Rosenstein, the special counsel was investigating not only Russia election interference issues, but the side question of whether Papadopoulos “acted as an agent of, or at the direction and control of, the government of Israel.” Mueller’s team found that the young campaign adviser had “significant ties” with Israel. According to Mueller, “search warrants were obtained in part on that basis.”

The investigation was in this part a counter-intelligence one. The investigation was into whether Papadopoulos was an agent of a foreign power. And so the correct sort of search warrant would have been one issued by the FISA court. That would mean that Rep. Jackson Lee was right that Papadopoulos had been the object of FISA warrants. Papadopoulos certainly thought so: In his book, “Deep State Target,” he writes that several reporters told him he was under FISA-sanctioned scrutiny. Papadopoulos says that two of those reporters suggested, without saying so explicitly, that the warrants were based on his connections with Israelis.

Mueller stated that his investigation did not “yield evidence sufficient to sustain any charge that any individual affiliated with the Trump Campaign acted as an agent of a foreign principal … subject to the direction or control of the government of Russia, or any official thereof.” It is unlikely the special counsel could have gathered the evidence needed for such a declaration without the use of FISA warrants.

If so, were the applications for any such warrants candid? Department of Justice Inspector General Michael Horowitz has been investigating whether the DoJ and the FBI played fast and loose in claiming they had probable cause to believe Carter Page was a Russian agent. To answer that, the IG is looking at whether investigators were sufficiently (let alone fully) honest with judges of the Foreign Intelligence Surveillance Court about the partisan origins of the allegations being made against Page. How extensively did the DoJ and FBI rely on the “dossier” that former foreign spy Christopher Steele was paid by Hillary Clinton’s campaign – through cut-outs — to write? Did the FBI violate its own rules by continuing to use Steele as a source even after he was caught leaking to the media?

The inspector general has promised that, “[i]f circumstances warrant, the OIG will consider including other issues that may arise during the course of the review.” Among those issues could be questions about the applications for any other FISA warrants. For example, in addition to any information presented to the court suggesting Kilimnik had ties to Russian agents, did the FBI include evidence that the Manafort associate was also a valuable State Department asset?

Or, the OIG might assess how aggressively investigators used the “two hop” rule to expand the universe of those being surveilled. Did other FISA warrants make that universe unreasonably large?

Asked by RealClearInvestigations whether the inspector general has evaluated any FISA warrant applications other than those targeting Carter Page, an OIG spokesperson declined to comment.

Horowitz’s findings are being scrubbed of classified material, after which the redacted version will get a final editing. All of which is expected to take, according to knowledgeable guesstimates, about three more weeks. At that point we should learn whether the Congressional exchanges at the Lynch interview were misstatements or evidence of a federal surveillance effort against the Trump campaign larger than imagined.

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