But Trump may not be :
prosecutors do not obtain warrants to toss the homes of people they regard as cooperating witnesses. When they are dealing with cooperators, prosecutors politely request that documents be produced, expecting the witness (and his lawyers) to comply. If some coercion is thought necessary, they will issue a grand-jury subpoena — an enforceable directive to produce documents, but one that still allows the witness to hand over the materials, not have them forcibly seized. The execution of a search warrant, even if it goes smoothly, is a show of force. It is intimidating
.. I also emphasized its timing: predawn. Under federal law, search warrants are supposed to be executed during daytime hours, when agents can be expected to knock on the door, announce their presence and purpose, and be admitted by the occupant of the premises. If investigators want to search a home before 6 a.m., they need permission. To get it, they have to convince the judge that, if the occupant were alerted to the agents’ presence before they entered, it is likely he would destroy evidence or pose a danger.
.. the FBI entered covertly by picking the lock on Manafort’s front door while he was sleeping. Clearly, that is not standard operating procedure — certainly not in a white-collar case.
.. Mueller’s investigators wanted to start grabbing files and copying hard drives before Manafort had a chance to call his lawyers or impede the search in any way. It was their way of saying Manafort could not be trusted. That’s intimidating, too.
.. Being a foreign agent is not a crime, per se; whether the relationship is criminal depends on the nature of the actions the operative takes (including whether he has disclosed his agency, as required by federal law)
.. So in a FISA investigation, it is not necessary to show probable cause that a suspect has committed a crime in order to search his home or tap his phone; all that is needed is probable cause that he is acting as an agent of a foreign power.
.. the FISA surveillance took place in two phases:
- the first, from 2014 until sometime in early 2016;
- the second in late 2016 into early 2017
.. Initially, I suspect Manafort was investigated as an agent of the Kremlin-backed Yanukovich faction in Ukraine
.. subsequently, Manafort was investigated as a suspected agent of Russia in connection with the Putin regime’s meddling in the 2016 election. I am betting the probable-cause evidence was overwhelming in Phase I, and sketchy in Phase II.
.. the federal government is not permitted to use FISA as a ruse to conduct what is actually a criminal investigation
.. the criminal search warrant executed at Manafort’s home on July 26 would give us insight into what suspected crimes Mueller is investigating. There would have to have been a probable-cause showing of specific crimes before a judge authorized the warrant; and the warrant itself had to have described the evidence the agents expected to find.
.. Manafort has a good idea of what Mueller is after, because the agents were required by law to provide Manafort with a copy of the warrant and an inventory of what they seized. These have not been publicly revealed.
.. Not only did Manafort meet with Senate Intelligence Committee investigators the day before the search; he was also scheduled to testify before the Senate Judiciary Committee on the very day of the search. Indeed, by pouncing at the precise time Manafort was cooperating with Congress, Mueller’s investigators were able to seize binders of documents that Manafort and his counsel had prepared to assist his Senate testimony.
.. Obviously, though, Manafort would not have the same willingness to testify before Congress if he suddenly had reason to believe he was likely to be indicted (such that any testimony he gave could be used against him in a criminal case). The New York Times reports that Mueller’s prosecutors have told Manafort they intend to indict him. That, too, is intimidating.
.. CNN claims that the first FISA surveillance of Manafort was shut down in 2016, after over a year, due to “lack of evidence.” That is strange. Again, the point of FISA surveillance is not to build a criminal case but to gather intelligence about the foreign power for which the subject is allegedly acting as an agent. To say FISA surveillance was aborted for “lack of evidence” makes it sound like Manafort was not an agent for the Ukrainian faction after all.
.. Was any part of Steele’s claims used by the FBI in applications to the FISA court for surveillance and searches of Manafort or other Trump associates?
.. Was there correlation between (a) the intelligence generated by the FISA surveillance of Manafort and (b) the unmasking of people associated with the Trump campaign?
.. We should stress, of course, that if there was solid evidence of an espionage relationship between Manafort and the Kremlin, there would be nothing necessarily inappropriate in conducting surveillance and unmasking relevant American identities. The question is: Was there solid evidence?
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