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The Government May Keep Paul Manafort’s iPods (in Part) Because of the June 9 Emails

As I laid out a few weeks ago, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.

Judge Amy Berman Jackson has finally weighed in whether Paul Manafort gets the eight iPods the government seized from him back. Unsurprisingly, she has ruled that the July 2017 search of Manafort’s Alexandria condo was properly authorized. Better still, she has ordered the parties carry out a discussion that may lead us to learn whether the seven or eight iPods I’ve been obsessing about contain any interesting evidence; she has ordered the government to return any devices that don’t include evidence covered by the warrant by August 17.

ABJ’s order is interesting for two reasons. First, because redacted sections of the order must refer to the June 9 meeting that is described in the warrant but for which the sections of the supporting affidavit are entirely redacted.

One of those sections describes email the government had already obtained that it used to justify its request to obtain electronic devices.

The redacted language almost certainly describes the emails about the June 9 meeting.

We know the government had already obtained emails pertaining to the June 9 meeting because Don Jr had already leaked them for all the world to see by the time of the search. But we also know that Don Jr, at least, was hiding Manafort’s side of the communication (the campaign would have provided Manafort’s side to Mueller’s team when they provided it to Congress).

So while it’s all redacted, one of the things ABJ uses to justify the search and seizure of Manafort’s iPods are almost certainly emails relating to the June 9 meeting, including whatever details noted OpSec wizard Paul Manafort included but which Don Jr recognized retrospectively would be damning.

ABJ goes to the trouble of ruling proper the seizure of the iPods, which might include records pertaining to the crimes in question, specifically.

Deliciously, because Manafort has bitched so much about his iPods, ABJ ordered a status report describing whether any seized devices (but not imaged) fall outside the scope of the warrant.

So we’re going to learn by August 17 (if things don’t come to a head before then) whether Manafort has specific disputes about whether these iPods were used to commit any of the crimes he is suspected of, including conspiring with Russians to steal the election.

In Trumpian Fashion, Paul Manafort Wins by Losing on Challenge to Mueller

Remember how Republicans were gleeful over the ass-kicking T.S. Ellis gave Mueller’s team arguing over the scope of the Special Counsel’s authority back in May? As predicted by close EDVA watchers, Ellis ruled yesterday against Paul Manafort, finding that the tax fraud investigation into Manafort was a logical part of understanding whether Trump’s campaign colluded with Russia to win the election.

The opinion is actually a political shitshow, though, which guarantees both a Manafort appeal (if he continues his valiant effort to win a future Trump pardon using stall tactics, anyway) and Congressional gamesmanship using it.

Ultimately, Ellis rules (as Amy Berman Jackson already had) that Mueller was authorized to investigate Manafort, in this case for tax fraud, based on his primary authority to investigate the ties between Trump’s campaign and Russia. Ellis makes the case that this investigation falls under Mueller’s primary grant perhaps even more plainly than ABJ did.

Given that the Special Counsel was authorized to investigate and to prosecute this matter pursuant to ¶ (b)(i) of the May 17 Appointment Order and the August 2 Scope Memorandum, that conclusion is dispositive and defendant’s arguments with respect to ¶ (b)(ii) of the May 17 Appointment Order need not be addressed.

[snip]

To begin with, defendant concedes that ¶ (b)(i) is a valid grant of jurisdiction. Specifically, defendant acknowledges that the Acting Attorney General acted consistently with the Special Counsel regulations when the Acting Attorney General authorized the Special Counsel to investigate the matters included in ¶ (b)(i) of the May 17 Appointment Order, namely “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” May 17 Appointment Order ¶ (b)(i). Thus, the only issue is whether the Special Counsel’s investigation and prosecution of the matters contained in the Superseding Indictment falls within the valid grant of jurisdiction contained in ¶ b(i) of the May 17 Appointment Order.

It does; the Special Counsel’s investigation of defendant falls squarely within the jurisdiction outlined in ¶ b(i) of the May 17 Appointment Order, and because ¶ b(i) was an appropriate grant of authority, there is no basis for dismissal of the Superseding Indictment on this ground. Specifically, in the May 17 Appointment Order, the Acting Attorney General authorized the Special Counsel to investigate, among other things, “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump … .” May 17 Appointment Order ¶ (b)(i). It is undisputed that defendant is an “individual[] associated with the campaign of President Donald Trump[;]” indeed, defendant served as the chairman of President Donald Trump’s campaign from March 2016 until August 2016. Moreover, the Special Counsel’s investigation focused on potential links between defendant and the Russian government. In particular, the Special Counsel investigated defendant’s political consulting work on behalf of, and receipt of substantial payments from, then-President Victor Yanukovych of the Ukraine and the Party of Regions, Yanukovych’s proRussian political party in the Ukraine. See Superseding Indictment ¶¶ 10-11. To be sure, history is replete with evidence of the existing and longstanding antagonism between the Ukraine and Russia. Indeed, armed conflict in the eastern Ukraine is still underway.19 Nonetheless, the fact that the Yanukovych was a strongly pro-Russian President warranted the investigation here. The fact that the Russian government did not make payments to defendant directly is not determinative because the text of the May 17 Appointment Order authorizes investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”

This language is all Ellis needed to rule against Manafort’s challenge. His discussion of the alternate issues is welcome, but superfluous.

But along the way, Ellis engages in a bunch of often inaccurate blather which serves mostly to foment the kind of politicization he claims to despise.

About the only neutral thing he does in his long discussion of special counsels is to give Steven Calabresi the ass-kicking he deserved for an op-ed that Kellyanne Conway’s spouse George condemned for its “lack of rigor.”

Yet, even the current Special Counsel regulations are not entirely free from constitutional attack. Indeed, Professor Steven Calabresi has argued that the appointment of the Special Counsel may run afoul of the Appointments Clause of the Constitution because the Special Counsel is a principal, not an inferior officer, and therefore must be appointed by the President with the advice and consent of the Senate. See Steven G. Calabresi, Mueller’s Investigation Crosses the Legal Line, Wall Street J. (May 13, 2018) https://www.wsj.com/articles/muellersinvestigation-crosses-the-legal-line-1526233750; see also Steven G. Calabresi, Opinion on the Constitutionality of Robert Mueller’s Appointment (May 22, 2018) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3183324. Defendant does not argue that the appointment of the Special Counsel violates the Appointments Clause of the Constitution, so that particular objection need not be addressed in detail here, but it is worth noting that such an objection would likely fail. The Special Counsel appears quite plainly to be an inferior officer. He is required to report to and is directed by the Deputy Attorney General.

But the rest of his long history of special counsels plays to the partisan assault on prosecutorial independence led by Republicans. For example, Ellis gets key distinctions about the current Special Counsel from past ones wrong, and even argues that this one, which meets bi-weekly with top DOJ officials and has provided a shit-ton of documents to Congress to review, is “in some ways less accountable than the independent counsel of the past,” in part because it gave annual progress reports to Congress.

He suggests that a Special Counsel’s hiring choices might inject bias into the investigation, echoing Trump’s inaccurate 13 Angry Democrats line.

The Special Counsel must also hire others to assist in the investigative process, and those applying to join the investigation may have their own biases and incentives to prosecute the target of the investigation, or their self-selection into the investigation may create an appearance of bias. See Akhil Amar, On Impeaching Presidents, 28 Hofstra L. Rev. 291, 296 (1999) (“An ad hoc independent counsel must build an organization from scratch, and those who volunteer may have an ax to grind, since the target is known in advance.”). In this case, many of the individuals working for the Special Counsel have donated to or worked for Democrats in the past, creating a public appearance of possible bias. See Alex Hosenball et al., Meet special counsel Robert Mueller’s prosecution team, ABC News (Mar. 17, 2018) https://abcnews.go.com/Politics/meet-special-counsel-robert-muellers-prosecutionteam/story?id=55219043. Similar accusations of bias were made against Kenneth Starr during the Whitewater investigation, with a number of Democrats criticizing the appointment of Kenneth Starr because of his connections to the Republican Party. See David Johnston, Appointment in Whitewater Turns into a Partisan Battle, N.Y. Times (Aug. 13, 1994) https://www.nytimes.com/1994/08/13/us/appointment-in-whitewater-turns-into-a-partisan-battle. html. Both cases highlight the fact that even the selection of the Special Counsel and his or her subordinates can provide grist for the media mill, heightening partisan tension and increasing the likelihood that substantial portions of the public will perceive work of the Special Counsel as partisan warfare.

He argues that it would be better to investigate election interference with a bipartisan commission than a Department of Justice made up of experienced professionals bound by certain guidelines and precedents, something that would look a lot like the Intelligence Committee reviews which exhibit varying degrees of dysfunction.

The Constitution’s system of checks and balances, reflected to some extent in the regulations at issue, are designed to ensure that no single individual or branch of government has plenary or absolute power. The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance.27

27 A better mechanism for addressing concerns about election interference would be the creation of a bipartisan commission with subpoena power and the authority to investigate all issues related to alleged interference in the 2016 Presidential election. If crimes were uncovered during the course of the commission’s investigation, those crimes could be referred to appropriate existing authorities within the DOJ.

All that’s ridiculous enough. But perhaps the most alarming thing Ellis does is use the ex parte review he did of an unredacted copy of Rod Rosenstein’s August 2, 2017 memo to telegraphically confirm that Trump is named as a subject of investigation. He does that, I argue, by putting footnotes 14 and 15 right next to each other.

With respect to the defendant, the August 2 Scope Memorandum identified several allegations, including allegations that the defendant:

[c]ommitted a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;

[c]ommitted a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych[.] Id. at 2.

The August 2 Scope Memorandum noted that these allegations against the defendant “were within the scope of [the Special Counsel’s] investigation at the time of [his] appointment and are within the scope of the [Appointment] Order.” Id. at 1. Several months later, on February 22, 2018, the Special Counsel charged defendant15 with, and a grand jury indicted defendant on (i) five counts of subscribing to false income tax returns, in violation of 26 U.S.C. § 7206(1) (Counts 1-5); (ii) four counts of failing to file reports of foreign bank accounts, in violation of 31 U.S.C. §§ 5314, 5322(a) (Counts 11-14); and (iii) nine counts bank fraud and conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344, 1349 (Counts 24-32).

14 Prior to the hearing, the Special Counsel submitted the August 2 Scope Memorandum in this record, albeit with significant redactions. In the course of the hearing on defendant’s motion to dismiss the Superseding Indictment, the Special Counsel was ordered to produce an un-redacted copy of the August 2 Scope Memorandum. The Special Counsel complied with this directive, and a review of the un-redacted memorandum confirms that the only portions pertinent to the issues in this case are those already available in this public record and excerpted above.

15 Given the investigation’s focus on President Trump’s campaign, even a blind person can see that the true target of the Special Counsel’s investigation is President Trump, not defendant, and that defendant’s prosecution is part of that larger plan. Specifically, the charges against defendant are intended to induce defendant to cooperate with the Special Counsel by providing evidence against the President or other members of the campaign. Although these kinds of high-pressure prosecutorial tactics are neither uncommon nor illegal, they are distasteful.

This passage states that everything pertinent to “the issues in this case” are public, which actually falls short of stating that none of the rest of them pertain to Manafort. Then, visually, the next line after describing the memo, Ellis states that “even a blind person can see that the true target of the Special Counsel’s investigation is President Trump.”

We are all blind to what’s behind those redactions, he is not, but even we can see, Ellis suggests, that Trump is the target. From that Ellis goes on to suggest that pressuring someone to flip is “distasteful,” which I hope gets quoted back at him liberally by people are are not the President’s former campaign manager.

I mean, it is true that we all knew that Trump’s obstruction was, by August 2, 2017, part of the investigation (and that since then his “collusion” has likely been added to Rosenstein’s memos). It is by no means a given that proof of “collusion” will go beyond the people, including Manafort, who may have orchestrated it. But Ellis puts the suggestion, visually at least, into the record for those of us who otherwise can’t see it, that “collusion” itself is about Trump.

All of which makes this legal opinion more about further embroiling political strife Ellis claims to dislike than about the law.

Mueller Frees Up the Troll Team

June 22, 2018/40 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

In the background of the celebrating over the Carpenter SCOTUS decision — which held that the government generally needs a warrant to access historical cell phone location — there were a few developments in the Mueller investigation:

The George Papadopoulos parties moved towards sentencing, either on September 7 or in October. If Mueller told Papadopoulos his wife Simon’s Mangiante seeming coordination of the Stefan Halper smear with Sam Clovis (and his lawyer, Victoria Toensing) and Carter Page got him in trouble, we got no sign of that.
Amy Berman Jackson dismissed a Paul Manafort attempt to limit the criminal penalties of his Foreign Agent Registration Act violations; this isn’t very sexy, but if the well-argued opinion stands, it will serve as a precedent in DC for other sleazy influence peddlers.
After ABJ made sure Rick Gates ask Mueller if he really didn’t mind Gates going on a trip without his GPS ankle bracelet, Gates got permission to travel — with the jewelry.
Kimba Wood accepted Special Master Barbara Jones’ recommendations, which among other things held that just 7 of the files reviewed so far pertain to the privilege of anyone, presumably including Trump, to whom Michael Cohen was providing legal services. So Cohen and Trump just paid upwards of $150,000 to hide the advice Cohen has gotten from lawyers and seven more documents — that is, for no really good reason.
In two separate filings, four DOJ lawyers filed notices of appearance in the Internet Research Agency/Concord Management case.

It’s the latter that I find most interesting. Mueller has added a team of four lawyers:

Deborah A. Curtis
Jonathan Kravis
Kathryn Rakoczy
Heather Alpino

To a team with three (plus Michael Dreeben):

Jeannie Sclafani Rhee
Rush Atkinson
Ryan Kao Dickey

Devlin Barrett (he of the likely impressive link map) reported that Mueller did this to prepare for the moment when his office shuts down and the Concord Management nuisance defense drags on for years.

People familiar with the staffing decision said the new prosecutors are not joining Mueller’s team, but rather are being added to the case so that they could someday take responsibility for it when the special counsel ceases operation. The case those prosecutors are joining could drag on for years because the indictment charges a number of Russians who will probably never see the inside of a U.S. courtroom. Russia does not extradite its citizens.

The development suggests Mueller is contemplating the end of his work and farming out any potentially outstanding prosecutions to other parts of the Justice Department.

Except this doesn’t make sense. Not only are Concord and the judge, Dabney Friedrich, pushing for a quick trial, but Atkinson and Dickey are themselves DOJ employees, so could manage any residual duties.

Far more likely, Mueller is ensuring one of his A Teams — including Dickey, DOJ’s best cyber prosecutor — will be able to move on to more important tasks on the central matters before him.

Paulie Goes to Prison*

June 15, 2018/52 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Judge Amy Berman Jackson just sent Paul Manafort to jail to await trial because he violated his release conditions.

The judge said sending Manafort to a cell was “an extraordinarily difficult decision,” but added his conduct left her little choice, because he had allegedly contacted witnesses in the case in an effort to get them to lie to investigators.

“This is not middle school. I can’t take away his cell phone,” she said. “If I tell him not to call 56 witnesses, will he call the 57th?” She said she should not have to draft a court order spelling out the entire criminal code for him to avoid violations.

“This hearing is not about politics. It is not about the conduct of the office of special counsel. It is about the defendant’s conduct,” Jackson said. “I’m concerned you seem to treat these proceedings as another marketing exercise.”

I’m interested in where that leaves him (besides, probably, the jail in Alexandria).

Manafort has a bunch of pending motions in EDVA: one challenging Mueller’s authority that Judge TS Ellis should be set to rule on, as well as a bunch trying to suppress evidence and one asking for a hearing on leaks. But things keep getting delayed in EDVA, which is supposed be a rocket docket but isn’t working out that way for Manafort. For both family reasons and because he had to preside over a spy trial, Ellis moved the hearing for the latter issues to June 29 and moved the trial itself (for which Mueller just got 75 sets of subpoenas) to July 24.

In DC, ABJ laid out this schedule back in March (which I’ll return to). Basically, she envisions two rounds of motions leading towards a trial in September.

Meanwhile, earlier this week, Mueller filed this curious motion in EDVA, asking Ellis to impose this discovery order. The problem Mueller’s team is having is that Manafort won’t respond to any of the requests Mueller’s team has made about a discovery order, going back to February and still, as recently as last week. And while they’ve turned over a ton of stuff, they suggest there’s “additional materials to be produced in this case” that they don’t want to turn over until Manafort is obligated by a discovery order.

Prior to the arraignment, on February 27, 2018, the government proposed the attached discovery order to defense counsel. The proposed order tracks the schedule and deadlines in this district’s standard discovery order. As the Court is aware, in addition to a schedule for Rule 16 discovery, the standard discovery order also sets forth deadlines for 404(b), Brady, Giglio, and Jencks material as well as notices for experts, alibis, and stipulations.

The defendant has already received robust discovery in this case and in the parallel District of Columbia prosecution. Indeed, the government has cumulatively made 19 separate productions − each containing a detailed index − in both cases. However, since February 2018 and as recently as last week, the government has been unable to obtain Manafort’s position on the attached proposed discovery order. Accordingly, in order to adequately prepare for trial, reduce discovery litigation, and protect additional materials to be produced in this case, the government respectfully asks this Court to enter the attached proposed discovery order.

Now, most of the obligations in the discovery order are on the prosecution, and given the delay in scheduling they’re not immediately pending in any case. The defense is supposed to tell the government about experts (which might be pertinent in this case since it’s a tax case), but that still wouldn’t be due until mid-July. The most immediate deadline would be if Manafort wanted to offer an alibi, which the standard protection order for EDVA would require by the first week of July; but I can’t imagine any alibi Manafort could offer on the EDVA case.

Now back to the DC case. There’s actually something due there, today (which given past practice will come out late in the day as everyone’s trying to get on with their weekend). Today’s the day the government has to submit their 404(b) notice to Manafort — basically advance warning of any other crimes they want to introduce during trial.

The government’s notice of its intention to introduce evidence under Fed. R. Evid. 404(b) must be filed by June 15, 2018; the opposition will be due on June 29; and the reply will be due on July 9. A hearing on the motion, if necessary, will be held on July 24, 2018 at 9:30 a.m.

Back in January, Mueller had requested delaying this notice until 8 weeks before trial (which would have been early August had ABJ not set the earlier deadline of today). My guess, then, was that they wanted to hold off letting Manafort know about what evidence they had on the case in chief, but that they wanted to introduce at trial.

The government just submitted a request to modify the deadline Judge Amy Berman Jackson set to give Paul Manafort and Rick Gates notice of other crimes or bad acts it will introduce at trial, what is called a Rule 404(b) notice. Currently, they have to provide that notice on April 6, but the judge is now considering a September rather than a May trial date, so prosecutors want to bump the 404 notice back accordingly.

Mueller’s prosecutors don’t want to give Manafort and Gates more than a couple months notice of the other crimes they’re going to unload during the trial. They also note that if they give notice in April, they may have to provide multiple notices as they learn of other bad acts.

Premature disclosure raises issues as well. For example, in declining to require disclosure that is too early, courts have recognized that “the evidence the government wishes to offer may well change as the proof and possible defenses crystallize.”

[snip]

For similar reasons, early disclosure can result in multiple Rule 404(b) notices and multiply the rulings that a court needs to make, thus undermining the efficient use of judicial and party resources.

The government wants to wait until 8 weeks before the trial before giving notice.

At least two things appear to be going on here. First, Mueller doesn’t want to tip his hand to the many crimes it has found Manafort implicated in. Perhaps, he also wants to avoid making other obvious allegations about Manafort and Gates to preserve their credibility when they flip on the President and his family. But it also seems to suggest Mueller expects he’ll be finding other crimes Manafort and Gates committed for the next 8 months.

This conversation with Matt Tait makes me wonder whether they’re trying to keep 404(b) evidence that they might file in NY State under wraps for now, in case Trump pardons Manafort (as he suggests, Manafort’s remaining money laundering properties involve Trump Organization).

So maybe that’s what Mueller’s trying to get Manafort to agree to. The EDVA standard order he’s trying to get him to use would require 404(b) notice by July 17, but permits the government to request avoiding such pretrial notice.

It is further ORDERED that, no later than seven calendar days before trial, the government shall provide notice to the defendant, in accordance with FED. R. EVID. 404(b), of the general nature of any evidence of other crimes, wrongs, or acts of defendant which it intends to introduce at trial, except that, upon motion of the government and for good cause shown, the court may excuse such pretrial notice.

It’s unclear what is operative in the DC case, but clearly the government can continue to file, as noted in January.

Anyway, that’s all just a guess, and we should see what they file for the 404(b) notice in DC this evening. Meanwhile, Paulie will be making himself comfortable in his new cell.

Update: Here’s the 404(b) motion. Mueller wants to introduce three things:

Evidence that one reason that Manafort and others arranged for [Skadden Arps] to be retained for the de minimis sum of approximately $12,000—even though they knew at the time that Law Firm A proposed a budget of at least $4 million—was to avoid certain limitations imposed by Ukrainian public procurement law.
Evidence that Manafort was treating a NYC apartment as a business property with the IRS but as a personal dwelling with a lender.
Evidence that Manafort structured intra-Cypriot funds to hide income.

The first of those two, of course, involve crimes in NY state.

*Technically, Manafort is being sent to jail, not prison. But that doesn’t alliterate so forgive me the error this once, okay?

On the Tactics of the Latest Manafort Indictment

June 9, 2018/55 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

When I went out to run errands yesterday, Paul Manafort was likely facing having his bail revoked next Friday and going to jail, from where he would fight charges that could put him in prison for the rest of his life. When I returned after an hour and a half, Paul Manafort — faced with a new superseding indictment — was probably facing having his bail revoked next Friday and going to jail, from where he will fight charges that could put him in prison for the rest of his life. That is, nothing much has changed, especially if you’ve been following along closely enough to know that Konstantin Kilimnik, who finally got added to Manafort’s indictments, has always been a key part of the election year conspiracy and the damage control since.

The key development, in my mind, is tactical. As Popehat explained in one of two great lawsplainers yesterday, the standard on revoking bail in any case is just probable cause that you’ve committed new crimes while being out on bail. By getting the grand jury to indict the underlying behavior behind the witness tampering claim, you’ve established probable cause.

And by the way, those accusations that Manafort committed a crime on bail? Mueller got a grand jury indictment, establishing probable cause. That may be all the judge requires. Manafort’s in trouble. I mean, even in the context of someone facing multiple indictments trouble.

This makes easier for Amy Berman Jackson to send Manafort to jail next Friday, effectively outsourcing the decision to a bunch of anonymous grand jurors. That is, it takes a likely action and makes it even more likely.

I’m interested in what it does to preserve evidence, though.

Manafort submitted his opposition to having his bail revoked last night, effectively claiming that Mueller has shown almost no evidence of witness tampering.

The Special Counsel creates an argument based on the thinnest of evidence; to wit, Mr. Manafort violated the Release Order’s standard admonition that a defendant not commit an offense while on release by allegedly attempting to tamper with trial witnesses. However, the scant proof of this claim is an 84-second telephone call and a few text messages between Mr. Manafort (or an associate referred to as “Person A”) and two former business associates(Doc. 315-2, Ex. N). These brief text messages followed the filing of the Superseding Indictment on February 23, which was the first time the Special Counsel raised any allegations about the mission and work of the Hapsburg Group. (Doc. 202, ¶¶30, 31.) Closer scrutiny of this “evidence” reveals that the Special Counsel’s allegations are without merit because Mr. Manafort’s limited communications cannot be fairly read, either factually or legally, to reflect an intent to corruptly influence a trial witness.

The merits aside (remember, Jeffrey Sterling spent years in prison based in significant part on metadata showing 4:11 in phone calls, without content, between him and James Risen), I find this footnote most interesting.

2 This is no small matter. It is clear from the Special Agent’s declaration that the agent spoke with the person on the other end of the call (i.e., D1). (See Doc. 315-2, ¶¶ 19, 20). Instead of identifying what was said exactly for purposes of this motion, however, the Special Counsel instead states what D1 “understood” from Mr. Manafort’s brief text messages—not the telephone call that occurred. Id. at ¶19. The Special Agent also states what D1 opines, i.e., what D1 believes Mr. Manafort knew. Id. Person D2, with whom Mr. Manafort had no telephone conversations or text messages, states that D1 told him (D2) that he “abruptly ended the call.” Id. at ¶ 20.

Manafort is complaining that Mueller didn’t reveal precisely what FBC Group’s Alan Friedman (see this post to explain who he is) told the government about the call. Had Mueller not indicted, then he would have had a real incentive to call Friedman as a witness next week to explain precisely why Manafort’s comments reeked of obstruction. Mueller has likely presented the substance of the call to the grand jury, however, and may now have less need to put Friedman on the stand next week.

But there is probably far more interesting evidence that Mueller presented to the grand jury to substantiate these two charges:

Obstruction of Justice

From in or about and between February 23, 2018, and April 2018, both dates being approximate and inclusive, within the District of Columbia and elsewhere, the defendants PAUL J. MANAFORT, JR., and KONSTANTIN KILIMNIK knowingly and intentionally attempted to corruptly persuade another person, to wit: Persons D1 and D2, with intent to influence, delay, and prevent the testimony of any person in an official proceeding

Conspiracy to Obstruct Justice

From in or about and between February 23, 2018, and April 2018, both dates being approximate and inclusive, within the District of Columbia and elsewhere, the defendants PAUL J. MANAFORT, JR., and KONSTANTIN KILIMNIK knowingly and intentionally conspired to corruptly persuade another person, to wit: Persons D1 and D2, with intent to influence, delay, and prevent the testimony of any person in an official proceeding, in violation of 18 U.S.C. § 1512(b)(1).

Charging both the obstruction charge and the conspiracy charge is, in some ways, insurance. It implicates Manafort in what are mostly Kilimnik’s efforts to get Friedman on the phone to coordinate stories.

But to charge conspiracy to obstruct, as opposed to just obstruction, Mueller also needs to show an agreement between Manafort and Kilimnik. Such an agreement would likely get to the core of Manafort’s intent more quickly than the calls as received by D1. That is, such an agreement would be the evidence that Manafort claims is lacking.

Which brings me to this exhibit, submitted Monday as part of the government’s motion to revoke bail, which is an XLS spreadsheet bearing the title “Open Source Timeline – March 2016 to March 2017 – Edited_lm.xlsx” uploaded to the docket.

It tracks the phone, WhatsApp, and Telegram communications between Manafort and Person D1 and D2, and the WhatsApp and Telegram chats between Kilimnik and D1 and D2 (Manafort uses WhatsApp once to place a phone call, but otherwise the WhatsApp and Telegram communications are all chats). It shows that the government has third-party sources for all of this — either D1 and D2 turning things over on their own, Manafort’s phone company (he was using AT&T quite recently) turning over his toll records, or Apple turning over the contents of Manafort’s iCloud account.

The table also shows time tracked in two scales: All of Manafort’s communications and the single chat between Kilimnik and D1 are in Coordinated Universal Time, while all of Kilimnik’s chats with D2 are in Central European Summer Time. You might get the latter via screen shots from a phone taken while in Central Europe.

Note, even though Kilimnik tells D2 that he had tried D1 “on all numbers,” the log doesn’t show any calls between Kilimnik and D1, it shows only the one WhatsApp chat between Kilimnik and D1. So the log doesn’t even show all the communications to D1 that exist. Just those that the government can provide a source that it’s willing to share publicly. I assure you, however, that the government knows when those calls were placed.

The log, as presented, also doesn’t show any communications between Manafort and Kilimnik.

Now go back to the fact that, yesterday, the government showed the grand jury not just evidence that Manafort and Kilimnik individually tried to suborn perjury from D1 and D2, but that they agreed to do so. At the very least, that would involve communications between the two of them. They’re only going to have the substance of that communication in one of two ways, though: if they did this via WhatsApp chats, those chats would be available on Manafort’s iCloud account, because he’s got really bad OpSec.

But if those communications were via a phone or WhatsApp call, then the government would have gotten that communication via some other means, means it hasn’t shown in that contact log. Keep in mind: as a foreigner with key connections, Kilimnik is a legitimate spying target under any definition of the term, even aside from the allegation he’s got active ties to Russian intelligence. And since January 2017, the NSA has been able to share raw EO 12333 intelligence with intelligence agencies, including the FBI. If that sharing works the same way Section 702 sharing works (and Kilimnik’s WhatsApp activity may or may not be collectable under 702, even before you get to EO 12333 collection), then so long as the FBI has a full investigation, it can obtain raw feeds of the targets covered by that full investigation.

No FISA notice has been filed in this case; it’s not clear whether the government would give notice of EO 12333 data (they should but they likely don’t). In either case they’d only have to if they intended to use that information in trial. The rest, they’d parallel construct by obtaining from the other parties to a communication or Manafort’s iCloud account.

Now, I suspect Mueller did not intend to file a document indicating that this communication log was originally started with a March 2016 to March 2017 scope, making it clear they’ve got a collection of parallel constructed sources for Kilimnik and Manafort communications that go back that far, right back to when Manafort joined the Trump campaign (which is slightly different than saying they got all of Manafort’s communications during the campaign).

That they’re still using the log to track the duo’s really idiotic ongoing communications is testament to the fact that since Manafort was indicted in October, the government has just been sitting back, watching everything Manafort and Kilimnik do and say to each other while getting Rick Gates to flip, collecting more information, and forcing Manafort to pledge all remaining liquidity to get bail. They’ve been watching Manafort and Kilimnik continue their efforts to try to get out of the deep shit Manafort is in, biding their time.

At the very least, revealing the communication log on Monday would have led Manafort to finally change the privacy settings on his phone, though it may well have led to a noticeable security change from Kilimnik as well, perhaps even a new phone without an FBI or NSA sensor collecting everything.

In the interim, too, other corners of the government revealed, in fairly spectacular fashion, that they can and will obtain the Signal and WhatsApp chats involving journalists of even congressional staffers like James Wolfe, meaning not just that they would do the same for alleged criminals out on bail and their co-conspirators, but that the means to do so has become readily available to the FBI for national security investigations. In short, this week the government tipped their hand about a whole slew of communications involving Manafort and Kilimnik that haven’t been disclosed in discovery yet as well as a capability that even lots of national security journalists (present company excepted) didn’t know they had.

Thus the grand jury and the new charges. It strikes me that, after disclosing the additional collection the FBI has on these two (though both have been fairly stupid in response to such disclosures in the past), the government has less incentive to let Manafort remain out on bail, because it will have a diminishing yield of information about the conspiracy. But the government also has a need to move things along without presenting everything they’ve got (including what they’ve asked Friedman about the developments post April 2 that led Kilimnik to try reaching out a second time). The new indictment provides a way to get to probable case without showing everything they’ve got, which in turns makes the chances that Manafort will finally be going to jail that much higher.

Update: On June 12, the government elaborated on the evidence showing that Manafort intended to suborn perjury, noting that the indictment should be enough by itself to revoke bail.

On June 8, 2018, a grand jury sitting in the District of Columbia returned a Superseding Indictment charging Manafort and his longtime associate, Konstantin Kilimnik, with attempted witness tampering and conspiracy to commit witness tampering, in violation of 18 U.S.C. §§ 1512(b)(1) and (k). See Doc. 318 ¶¶ 48-51. Counts Six and Seven of that Superseding Indictment “‘conclusively determine[] the existence of probable cause’ to believe the defendant” committed a federal crime while on pretrial release. Kaley v. United States, 134 S. Ct. 1090, 1097 (2014) (quoting Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)); see also United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) (“[T]he indictment alone would have been enough to raise the rebuttable presumption that no condition would reasonably assure the safety of the community.”). Probable cause to believe that Manafort committed a crime, in turn, triggers a rebuttable presumption “that no condition or combination of conditions will assure that [Manafort] will not pose a danger to the safety of any other person or the community.” 18 U.S.C. § 3148(b). Manafort’s challenge to the strength of the government’s evidence of witness tampering is thus both misplaced and unavailing. See Kaley, 134 S. Ct. at 1098 & n.6 (explaining that “[t]he grand jury gets to say—without any review, oversight, or second-guessing—whether probable cause exists to think that a person committed a crime,” and recognizing that this “unreviewed finding . . . may play a significant role in determining a defendant’s eligibility for release before trial under the Bail Reform Act”). 1

The go on to suggest that given the indictment, they don’t even need to bring the FBI agent to testify, but will.

Although the government submits that the grand jury’s probable-cause determination obviates the need for testimony by the agent who signed the declaration in support of the government’s motion to revoke or revise, the agent will be available to testify if needed per the Court’s Order. The government submits, however, that any remaining factual matters can be addressed by proffer, as is common practice at bail hearings. See Smith, 79 F.3d at 1210; see also United States v. LaFontaine, 210 F.3d 125, 131 (2d Cir. 2000) (calling it “well established . . . that proffers are permissible both in the bail determination and bail revocation contexts”).

Again, all this seems designed to make it easy for Amy Berman Jackson to revoke his bail.

On Those Five AT&T Phones Manafort Wanted To Learn About

May 30, 2018/51 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Yesterday, Amy Berman Jackson rejected Paul Manafort’s effort to get the last of the affidavits used to get warrants against him unsealed. The challenge started as an effort to get seven warrant affidavits unsealed; along the way, Manafort got a completely unredacted copy of the affadavit behind the search of his condo (which would have been the first one reflecting the government’s knowledge of his role in the June 9 meeting), and the name of a confidential source — actually a known former employee of his — behind the warrant to search his storage facility.

Along with some other government disclosure, that left two affidavits. A warrant to search his email account.

In the Matter of the Search of Information Associated with Email Account [email protected] (D.D.C.) (17-mj-00611).

Based on the DC docket, I think this warrant would have been obtained sometime between August 14 and 18 of last year. This is the email address that Mueller’s team caught Manafort using to conduct ongoing discussions with Konstantin Kilimnik last November (though Kilimnik’s side would have been accessible via a Section 702 served on Google).

The other warrant is one to obtain information relating to five AT&T phones.

In the Matter of the Search of Information Associated with Five Telephone Numbers Controlled by AT&T (D.D.C.) (18-sc-609).

In her order, ABJ explained that the government is only withholding the names of confidential sources and stuff pertaining to investigations other than the money laundering investigations currently pending against Manafort.

The government argues that the information that is currently being withheld fell within two categories: the names of confidential sources who had provided information to the government, and information relating to ongoing investigations that does not bear upon the allegations in either of the two cases now pending against Manafort.

An earlier filing explained that the second, AT&T, affidavit was obtained on March 9 and it covers “ongoing investigations that are not the subject of either of the current prosecutions involving Manafort.”

On April 4, 2018, the government produced in redacted form, and for the first time, an affidavit supporting a search warrant that had been obtained on March 9, 2018. That affidavit likewise contains redactions—albeit more substantial ones—relating to ongoing investigations that are not the subject of either of the current prosecutions involving Manafort.

As I believe others pointed out at the time, this would put it just a few weeks after Rick Gates pled on February 23, and so might reflect information obtained with his cooperation.

In her ruling, ABJ cited the last week’s hearing, suggesting that the phones still redacted in the affidavit materials might not be Manafort’s.

THE COURT: What if — I think one of them is about phone information. What if the redacted phones are not his phone?

MR. WESTLING: I don’t have a problem with that. I think we’re talking about things that relate to this defendant in this case.

Since just before this phone data was obtained, Mueller’s team has focused closely on Roger Stone, starting with the Sam Nunberg meltdown on March 5, including a retracted claim that Trump knew of the June 9 meeting the week beforehand (there’s a phone call Don Jr placed on June 6 that several committees think may have been to Trump, something Mueller presumably knows). Ted Malloch was stopped at the border and interviewed (and had his phone seized) on March 30, and scheduled for a since aborted grand jury appearance on April 13. Stone assistants John Sullivan and Jason Kakanis were subpoenaed earlier in May. Of particularly interest, Michael Caputo was interviewed about meetings he and Stone had with Gates before and during the campaign. Stone’s finances have been probed. Stone says he expects an indictment, but claims it would pertain to issues unrelated to colluding with Russia.

These details may, of course, be entirely unrelated. But Mueller sure has focused closely on Stone in the wake of obtaining information on those phones that don’t belong to Manafort.

Meanwhile, Manafort has started a fund to pay what must be astronomical legal bills. He may make bail this week, or Mueller’s team may move the goalposts.

Update: Jason Sullivan appeared before the grand jury today (Friday June 1), though he was originally subpoenaed to appear on May 18. That, plus the Ted Malloch detail, suggests Mueller is juggling the Stone witnesses.

Did Mueller’s Team Decide They No Longer Need Manafort to Flip?

May 6, 2018/40 Comments/in 2016 Presidential Election, Informants, Mueller Probe /by emptywheel

One detail of the attacks TS Ellis made on Mueller’s team on Friday has gotten a lot of attention: his insinuation that Mueller’s team was only charging Manafort with bank fraud and tax evasion to get him to flip on Trump.

THE COURT: Apparently, if I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump. That seems to me to be obvious because they all long predate any contact or any affiliation of this defendant with the campaign. So I don’t see what relation this indictment has with anything the special prosecutor is authorized to investigate.

It looks to me instead that what is happening is that this investigation was underway. It had something. The special prosecutor took it, got indictments, and then in a time-honored practice which I’m fully familiar with — it exists largely in the drug area. If you get somebody in a conspiracy and get something against them, you can then tighten the screws, and they will begin to provide information in what you’re really interested in. That seems to me to be what is happening here. I’m not saying it’s illegitimate, but I think we ought to be very clear about these facts and what is happening.

[snip]

THE COURT: That’s right, but your argument says, Even though the investigation was really done by the Justice Department, handed to you, and then you’re now using it, as I indicated before, as a means of persuading Mr. Manafort to provide information.

It’s vernacular by the way. I’ve been here a long time. The vernacular is to sing. That’s what prosecutors use, but what you’ve got to be careful of is they may not just sing. They may also compose.

[snip]

THE COURT: It factually did not arise from the investigation. Now, saying it could have arised under it is another matter, but factually, it’s very clear. This was an ongoing investigation. You all got it from the Department of Justice. You’re pursuing it. Now I had speculated about why you’re really interested in it in this case. You don’t really care about Mr. Manafort’s bank fraud. Well, the government does. You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.

In spite of Ellis’ repeated suggestion that Mueller was just trying to get Manafort to flip and that that might not be illegitimate, Michael Dreeben never took Ellis’ bait, each time returning to the government’s argument that the indictment was clearly authorized by Rod Rosenstein’s initial appointment memo, and in any case Manafort can’t challenge his indictment based off whether Mueller adhered to internal DOJ regulations.

THE COURT: Where am I wrong in that regard?

MR. DREEBEN: The issue, I think, before you is whether Mr. Manafort can dismiss the indictment based on his claim.

[snip]

In any event, your point, if I can distill it to its essence, is that this indictment can be traced to the authority the special prosecutor was given in the May and August letters. That, as far as you’re concerned, is the beginning and end of the matter.

MR. DREEBEN: Yes, Your Honor, it is the beginning and almost the end. And this is my last point, I promise.

THE COURT: All right.

MR. DREEBEN: The special counsel regulations that my friend is relying on are internal DOJ regulations. He referred to them as if they’re a statute. I want to be clear. They are not enacted by Congress. They are internal regulations of the Department of Justice.

Dreeben’s refusal to engage is all the more striking given one of the differences between the 45-page government response dated April 2 for Manafort’s DC challenge and the 30-page government response dated April 10 for Manafort’s EDVA challenge.

The two briefs are very similar and in some passages verbatim or nearly so. The DC version has more discussion of the Acting Attorney General’s statutory authority to appoint a Special Counsel — language like this:

Finally, Manafort’s remedial arguments lack merit. The Acting Attorney General had, and exercised, statutory authority to appoint a Special Counsel here, see 28 U.S.C. §§ 509, 510, 515, and the Special Counsel accordingly has authority to represent the United States in this prosecution. None of the authorities Manafort cites justifies dismissing an indictment signed by a duly appointed Department of Justice prosecutor based on an asserted regulatory violation, and none calls into question the jurisdiction of this Court.

It includes a longer discussion about how a Special Counsel differs from a Ken Starr type Independent Counsel. It cites some DC-specific precedents. And in general, the discussion in the DC brief is more extensive than the EDVA.

Generally, the differences are probably explained by differing page limits in DC and EDVA.

But along the way, an interesting passage I noted here got dropped: in addition to the general language about a special counsel appointment including the investigation of obstruction of that investigation, the DC brief noted the underlying discussion on Special Counsel regulations envisions the prosecution of people if “otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.” 64 Fed. Reg. at 37,039. “Rather than leaving the issue to argument and misunderstanding as to whether the new matters are included within a vague category of ‘related matters,’ the regulations clarify that the decision as to which component would handle such new matters would be made by the Attorney General.” Id.9

9 The allusion to “related matters” refers to the Independent Counsel Act’s provision that the independent counsel’s jurisdiction shall include “all matters related to” the subject of the appointment (28 U.S.C. § 593(b)(3)), which prompted the D.C. Circuit to observe that “the scope of a special prosecutor’s investigatory jurisdiction can be both wide in perimeter and fuzzy at the borders.” United States v. Wilson, 26 F.3d 142, 148 (D.C. Cir.), cert. denied, 514 U.S. 1051 (1995).

This exclusion, too, likely arises from page limits (and its exclusion may explain why Dreeben didn’t point to it in Friday’s argument).

But given Ellis’ focus on it, I find the exclusion notable.

Again, it’s most likely this is just a decision dictated by page limits. But it’s possible that Mueller’s team believed this language less important to include in any decisions issued in EDVA than DC. For example, the existing cooperation agreements were all signed in DC, even where (with George Papadopoulos and Richard Pinedo) at least some of the crimes occurred elsewhere. If Manafort ever flips, that plea agreement will presumably go through DC as well.

Or maybe, given Rick Gates’ cooperation, Mueller’s team has decided they can proceed without Manafort flipping, and instead send him to prison the same way Al Capone went: with tax charges rather than the most heinous crimes.

Mueller’s Entirely Redacted Three Bullets and a Theory of the Case

April 24, 2018/71 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

In this post, I showed how the list of crimes for which Paul Manafort was being investigated mushroomed between the time FBI searched an Alexandria storage locker on May 27, 2017 and the time they searched his home using a no-knock warrant on July 27, 2017.

As a threshold matter, between May and July 2017, the scope of crimes being investigated mushroomed, to include both the fraudulent loans obtained during the election and afterwards, as well as foreign national contributions to an election, with a broad conspiracy charge built in.

Compare the list of crimes in the storage unit affidavit:

31 USC 5314, 5322 (failure to file a report of foreign bank and financial amounts)

22 USC 618 (Violation of FARA)

26 USC 7206(a) (filing a false tax return)

With the list in the residence affidavit:

31 USC 5314, 5322

22 USC 611 et seq (a broader invocation of FARA)

26 USC 7206

18 USC 1014 (fraud in connection with the extension of credit)

18 USC 1341, 1343, 1349 (mail fraud and conspiracy to commit mail fraud)

18 USC 1956 and 1957 (money laundering)

52 USC 30121 (foreign national contributions to an election)

18 USC 371 and 372 (conspiracy to defraud the US, aiding and abetting, and attempt to commit such offenses)

So this motion to suppress would suppress both evidence used to prosecute Manafort in the EDVA case, as well as the eventual hack-and-leak conspiracy.

And in addition to records on Manafort, Gates’, and (another addition from the storage unit warrant), the warrant permits the seizure of records tied to the June 9 meeting and Manafort’s state of mind during all the enumerated crimes (but that bullet appears right after the June 9 meeting one).

It also includes an authorization to take anything relating to Manafort’s work for the foreign governments, including but not limited to the Ukrainians that have already been charged, which would seem to be a catchall that would cover any broader conspiracies with Russia.

This makes sense. The June 9 story broke in July 2017 based off documents that Jared Kushner and Manafort had provided to Congress in June — though I do wonder whether there were any records relating to the meeting in the storage unit.

I also noted that Manafort seemed particularly worried about several things in the later search — such as that the government took stuff pertaining to his state of mind, that the FBI seized his iPods, and that they hadn’t given anything back.

In this post, I noted that Rod Rosenstein appeared to have included a third bullet in his description of the crimes that Robert Mueller could investigate Manafort for in his August 2, 2017 memo, written just after the later search.

Now consider this detail: the second bullet describing the extent of the investigation into Manafort has a semi-colon, not a period.

It’s possible Mueller used semi-colons after all these bullets (of which Manafort’s is the second or third entry). But that, plus the resumption of the redaction without a double space suggests there may be another bulleted allegation in the Manafort allegation.

There are two other (known) things that might merit a special bullet. First, while it would seem to fall under the general election collusion bullet, Rosenstein may have included a bullet describing collusion with Aras Agalarov and friends in the wake of learning about the June 9 Trump Tower meeting with his employees. More likely, Rosenstein may have included a bullet specifically authorizing an investigation of Manafort’s ties with Oleg Deripaska and Konstantin Kilimnik.

The Mueller memo actually includes a specific reference to that, which as I’ve noted I will return to.

Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”

The latter might be of particular import, given that we know a bunch of fall 2017 interviews focused on Manafort’s ties to Deripaska and the ongoing cover-up with Kilimnik regarding the Skadden Arps report on the Yulia Tymoshenko prosecution.

At a recent court hearing, Manafort’s team confirmed there is a third bullet (which is unredacted to them), and the government seemed to confirm (with their insistent refusal to share) that there are other documents laying out Rosenstein’s authorizations for the investigation.

Last night, the government responded to the Manafort challenges (response to Bill of Particulars, response to search of storage locker, response to search of condo).

Aside from a bunch of subtle details showing that Mueller continues to work closely with FBI Agents on appropriate task forces and US Attorneys officers, it includes these three redacted bullets laying out the evidence supporting probable cause for the crimes for which FBI is investigating Manafort.

Now, there’s not necessarily a correlation between those three bullets and the three bullets we now know are in Rosenstein’s memo. I say that, most of all, because the first of Rosenstein’s bullets pertains to the general “collusion” investigation.

Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.

As I noted in my post speculating what the third might be, it might include either more details on the then-recently disclosed June 9 meeting, or it might provide more evidence of the way that Manafort worked with Oleg Deripaska, the former of which especially might fit under the election bullet. A likely third bullet is also the more recent money laundering Manafort allegedly conducted, as he tried to use mortgages to stave off financial ruin, which gets included in the expanded list of crimes for which Manafort was being investigated.

In any case, the affidavit (and therefore these three paragraphs) presumably lay out probable cause to support all three of Rosenstein’s bullets:

The Ukraine-based money laundering at issue in the existing DC indictment — showing a long-term hidden relationship with Russian-backed entities
Manafort’s recent attempts to remain liquid as reflected in the EDVA indictment — showing he had an incentive to do crazy things to make money
Efforts to “collude” with Russia, as reflected in the Trump Tower meeting

This is as much as what Amy Berman Jackson suggested in the most recent hearing (the one where Manafort confirmed there was a third bullet).

So perhaps, those three redacted bullets lay out the theory of the case: Paul Manafort had long-standing ties to Russian oligarchs and an urgent need to continue receiving their money when four Russians walked into Trump’s campaign proposing dirt on Hillary in exchange for sanctions relief.

The Access Hollywood Search Doesn’t Mean Trump Coordinated with Assange

April 12, 2018/84 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

As I noted, yesterday several outlets reported that among the things included in the FBI warrant for Michael Cohen’s premises was communications between Trump, Cohen, and others (whom I suspect to include Steve Bannon and Marc Kasowitz) “regarding the infamous ‘Access Hollywood'” video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be.

From that, people on both the right and the left have assumed, without presenting hard evidence, that this means there must be a tie to Russia. Most often, people assume this must mean Trump somehow managed the events of October 7, when the Intelligence Committee report blaming Russia for the DNC hack, the Access Hollywood video, and the first Podesta emails all came out in quick succession.

That’s certainly possible, but thus far there’s no reason to believe that’s the case.

Mueller and Rosenstein referred this

That’s true, first of all, because after consulting with Rod Rosenstein, Robert Mueller referred this to the Southern District of New York for execution and prosecution, rather than dealing with it himself. He did that surely knowing what a sieve for leaks SDNY is, and therefore knowing that doing so would undercut his remarkably silent teamwork thus far.

In spite of a lot of reporting on this raid this week, we don’t yet have a clear understanding of why the two chose to refer it (or, tangentially, why interim SDNY US Attorney Geoffrey Berman recused himself from this matter).

There are two options. The first is that Rosenstein believed hush payments and taxi medallion money laundering sufficiently attenuated to the Russian investigation that it should properly be referred. In which case, the fact that it was referred is itself reason to believe that Mueller — even while he had abundant evidence supporting the search warrant — has no reason to believe those releases were orchestrated with Wikileaks, and therefore have no direct interest to his investigation (though they may cough up one to three witnesses who will be more willing to cooperate when faced with their own fraud indictments). In which case, the Access Hollywood video would be just another example, like the Stormy Daniels and the Karen McDougal payoffs, of Trump’s efforts to bury embarrassing news, using whatever means necessary.

The other option is that Mueller does have evidence that Trump in some way managed the October 7 events, which would be one of the most inflammatory pieces of evidence we would have heard of so far, but that there was some other reason to refer the matter.

Michael Cohen wasn’t serving as an attorney for much of the reported documents

The really good reason to refer the warrant would be so that SDNY would serve as a natural clean team, sorting through seized items for privileged communications, only to hand them back to Mueller’s team in DC once they’ve sorted through them. It’s an idea Preet Bharara and Matt Miller, among others, have floated.

Before we conclude that SDNY is only serving as a clean team for Mueller’s team here, consider that coverage has vastly overstated the degree to which the items being searched will fall under attorney-client privilege.

The search also sought information on Cohen’s taxi medallions, a business in which he has had really corrupt partners, some Russian, with their own legal problems, and one that has reportedly left Cohen with some debt problems that make his purported personal payment to Stormy Daniels all the more sketchy.

In addition, as soon as Trump claimed to know nothing of the hush payment to Daniels last Friday, the government could credibly claim that either Cohen was not representing Trump when paying off Daniels, or involved in fraud.

The NYT has reported that the raid also sought all communications between Cohen and National Enquirer’s top brass, communications that would in no way be privileged.

Even the reported communications about the Access Hollywood video may not be privileged. If they involved four people, then the only way they’d be covered by privilege is if they counted as campaign emails and Marc Kasowitz, not Cohen, was the attorney providing privileged advice in question. In that case, Cohen would have been playing the press contact role he often did during the campaign.

Still, just because Cohen was not playing the role of an attorney during most of the activities the FBI is interested in doesn’t mean the FBI won’t be really careful to make sure they don’t violate privilege, and I’m sure they’ll still use a taint team.

Mueller has already dealt with (at least) two sensitive attorney-client relationships in his investigation

Even on top of the eight members of the White House Counsel’s office who have spoken with the Special Counsel, Mueller’s team has dealt with (at least) two other sensitive attorney-client relationships.

The first was Melissa Laurenza, a lawyer for Paul Manafort whom he had write false declarations for FARA registry. Judge Amy Berman Jackson permitted Mueller’s team to ask her seven of eight proposed question after proving Manafort had used her services to engage in fraud.

More recently, we’ve gotten hints — but only hints — of what must be extensive cooperation from Skadden Arps and its partner Greg Craig, describing how Manafort and Gates laundered money to pay the firm loads of money to write a report they hoped would exonerate Ukraine’s persecution of Yulia Tymoshenko. While the cooperation of Skadden itself was probably effusive in its voluntary nature (the firm seems determined to avoid the taint that Tony Podesta’s firm has acquired in this process), Mueller did subpoena Alex Van der Zwaan and it’s unclear what methods the FBI used to obtain some of the materials he tried to hide from prosecutors.

Neither of those exchanges involves a search warrant. But they do show that Mueller is willing to take on the tricky issue of attorney testimony first-hand. Using SDNY as a clean team still may be the easiest option in the Cohen case, but Mueller clearly isn’t shying away from managing all such issues in-house in other cases.

The other possible explanations for the Access Hollywood search and the October 7 timing

Which brings us finally to the other possibilities behind the Access Hollywood search.

It’s certainly possible that the coincidental release of all these things was coordination, entirely orchestrated by the Trump campaign. But there are a number of reasons — on top of the fact that Mueller isn’t keeping this search far tighter under his own control — I think that’s not the most likely explanation.

Consider this story, arguing that the real story of Access Hollywood isn’t that it leaked on October 7 — the piece notes that David Farenthold had only received it that day — but that it didn’t leak earlier in the process, when it might have led Trump to lose the primary.

t is just impossible to believe that the tape not coming out at the start of Trump’s campaign, when logic dictates that it would have blown Trump instantly out of the water (before he was in a position where Republicans had no choice other than to keep backing him against the evil Hillary Clinton), was anything but a highly unethical political decision by someone at NBC. The fact that no one has ever even gotten an answer from NBC about how this could have happened is equally unfathomable and yet, given the news media’s overall incompetence, kind of expected.

[snip]

It has always struck me as EXTREMELY odd that it was the Washington Post, not NBC, who first released the tape on Friday Oct. 7, 2016, barely beating NBC which, it should be noted, was clearly ready to go with it immediately after the Post did. I presumed that perhaps NBC wanted this to be the case because it might take some of the focus off why they had not released it during the primaries (and thus chose not to prematurely kill off the media’s Golden Goose which was Trump’s ratings-friendly campaign).

However, there is another aspect of the Post being the outlet which got the big scoop that has always struck me as potentially very significant. The Post’s reporter, David Fahrenthold, has said that he was only made aware of the tape, via an unnamed source, THAT day — which is a clear indication that whomever was trying to get the Post to release it had decided to do so in tremendous haste. After all, if the source had planned it sooner they would have made contact with Fahrenthold well before then because he might have been out of pocket that day.

[snip]

For instance, what if it was actually someone from the TRUMP team who leaked the tape. At first glance, this seems ludicrous because no one thought that Trump would be anything but greatly harmed by the tape (though he clearly was not). But what if someone in Trump World got wind that the tape was about to be released and decided that stepping all over the Russia news (which would normally have dominated the narrative for the remainder of the campaign) would at least create the least bad outcome for them?

I don’t agree that the release was released when it was to distract from the Russia announcement that day. As I’ve long noted, in reality, the Access Hollywood distracted from the Podesta emails, effectively burying the most damning release in the bunch, the excerpts of Hillary’s speeches that even Democrats had been demanding she release since the primary. And while the Trump team might claim they didn’t control the release of the Podesta emails directly — and Roger Stone’s predictions that Wikileaks would release Clinton Foundation rather than Podesta emails were dead wrong — the Trump team at least knew something was coming (indeed, Wikileaks had made that clear themselves). So there’s little reason they would stomp on what they had long welcomed with the Access Hollywood tape. As this post alludes, I also think the Trump team and Russians or Wikileaks may have been squabbling over whether Wikileaks would release possibly faked Clinton Foundation emails that week, only to scramble when Wikileaks refused to release whatever the Peter Smith effort had gotten dealt to them.

Like the Mediate piece, I’m interested in the way that Steve Bannon had Clinton accusers all lined up to go that weekend (indeed, I noted how quickly Stone moved to that after having raised expectations for a Clinton Foundation release). But I also think there are some reasons to believe that attack was in the works for other reasons (though I agree it might reflect advance knowledge that the video might come out, or even that Stormy Daniels might come forward). Finally, I don’t think the release came from Trump because of all the reports of Republicans trying to convince Trump to step down (though it’s possible the GOP dropped the video in one last bid to get him to do so).

One alternative narrative, then, is that the real story about the Access Hollywood suppression goes back months or years earlier, as one of the things Trump managed to suppress throughout the campaign, but something happened internally to breach that agreement. And, separately, that either Assange by himself, with Russian help, or with Trump assistance, timed the Podesta emails to come out as the Russian attribution was coming out. That is, it could be that the real story remains that whoever orchestrated the Wikileaks release did so in an attempt to bury the Russian attribution, but that the coincidental release of the Access Hollywood video in turn buried the Podesta emails.

Finally, it’s possible that Democrats got ahold of the Access Hollywood video and they released it to (successfully) drown out the Podesta emails, which they (and the intelligence community) also would have known were coming, but by doing so, they also drowned out the all-important Russian attribution in the process.

The point is, we don’t know. And nothing we know thus far about the process leading to this warrant or about the suppression and release of either the video or the women’s stories suggest it all took place that week of October. Trump’s usual m.o. is about suppression, not timing.

That said, I’m curious if this raid will reveal details about one other item Trump probably tried to suppress: the nude Melania photos that NYPost released on July 31, 2016, just as campaign season got going in earnest.

Is Manafort Getting Close to Crying “Uncle”?

April 4, 2018/97 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Even before this hilarious Zoe Tillman report on a hearing in Paul Manafort’s civil suit against Robert Mueller, I was going to point to the things Manafort has learned that we haven’t. But the report that Manafort’s lawyers are trying to “Stop Bobby Three Sticks, before he indicts again!!!” makes the details all the more interesting.

In the hearing, Manafort’s lawyers tried to rescue their desperate lawsuit arguing Mueller’s appointment is improper by arguing they’re only trying to prevent prospective actions with this lawsuit — that is, they’re trying to prevent Mueller from larding on more charges.

During arguments Wednesday about whether Manafort’s lawsuit challenging special counsel Robert Mueller’s appointment could go forward, Manafort’s lawyer said the case wasn’t about getting the existing indictments tossed out — it was about stopping future prosecutions against Manafort by the special counsel’s office.

Pressed by the judge about how Manafort could sue now if he was trying to stop activity by the special counsel’s office that hadn’t happened yet, Manafort’s lead attorney Kevin Downing argued that the harm to Manafort was ongoing because the special counsel’s investigation and the grand jury were still active.

Without an order from the court stopping Mueller’s office from pursuing other charges in the future — based on an appointment order that Downing contends was unlawful — Manafort would have to “sit and wait” and keep chasing the special counsel’s office wherever they decided to prosecute him next in order to challenge Mueller’s appointment, Downing said. He didn’t specify what other types of charges he thought the special counsel might be investigating against Manafort.

Manafort’s civil lawsuit against the Justice Department and the special counsel’s office, filed in January in the US District Court for the District of Columbia, asked the court to not only declare Mueller’s original appointment in May invalid, but also to set “aside all actions taken against Mr. Manafort pursuant to the Appointment Order.”

But Downing has since walked that back, saying that they’re only asking for a forward-looking order that blocks future action.

As I noted, there are several apparently unrelated things that Mueller’s team may have shown Manafort that they haven’t shown us.

First, back on March 1, Mueller’s team moved to unseal transcripts of some sidebar conferences from the status conferences on January 16 and February 14, as well as an ex parte discussion they had with the judge on February 14 (as well as discussions about why Manafort couldn’t yet, and still can’t, make bail from February 14).

The United States of America, by and through Special Counsel Robert S. Mueller, III, respectfully moves to unseal the sealed portion of the transcripts of sidebar/bench conferences that occurred during the status conferences held in this matter on January 16, 2018, and February 14, 2018. The transcripts of these bench conferences were sealed at the government’s request. At the time, the government indicated that the cause for sealing was likely to be mooted in the near future and that the government had no objection to making the transcript available to the public once that happened. The government respectfully submits that unsealing is now appropriate. The government also submits that the transcript of an ex parte sidebar discussion between the government and the Court, conducted at the February 14, 2018, status conference should also be unsealed and made available to the public, the cause for sealing having been mooted. [my emphasis]

The cause for sealing that would soon be mooted might either be the larding on of new charges against Manafort related to his more recent money laundering between 2015 and 2017 (which took place on February 22), or Rick Gates’ anticipated plea (which took place on February 23).

On March 7, Gates’ team asked for more time to object to the unsealing, until five days after they got the transcripts, based on the fact that Tom Green had just joined the case and wasn’t present at those hearings. On March 9, Manafort’s team asked for the same five days after they got the transcripts. Judge Amy Berman Jackson granted both those requests. Since then, there’s been no further developments on this unsealing reflected in the unsealed docket, though there are skips in the numbering (230 and 231, and 238). While it’s possible those transcripts aren’t ready yet, the original version of the January 16 transcript was ready in 7 days (there’s no notice for the February 14 transcripts, though two hearings since that one have been docketed).

So it’s quite possible Manafort now has the transcript of that ex parte sidebar from February 14, but has decided he doesn’t want us to see it.

Then there’s the minute notice from yesterday granting the government’s request to seal an exhibit from its Monday filing.

Berman Jackson’s approval notes that the government has already released a redacted version of the exhibit, meaning the exhibit in question must be the Rod Rosenstein memo. I suggested yesterday that the government was effectively providing Manafort a less redacted copy showing what else it was investigating Manafort for, which might well pertain to Oleg Deripaska, given that Mueller dropped an otherwise superfluous reference to Deripaska in Monday’s motion.

But who knows? There are definitely possible investigative prongs that might be even more damaging for Manafort than just his well-known relationship with Deripaska.

Whatever it is, Manafort’s team went from reading that memo to making a desperate bid to prevent Mueller from bringing any more indictments against Manafort.

That bid — as well as the bid to throw out the indictments — appears to be doomed. Based on Tillman’s report, Berman Jackson seems to have already read Monday’s filing, given that the doubts she raised in today’s hearing all were all laid out in that.

US District Judge Amy Berman Jackson — who is also handling Manafort’s criminal case in DC — expressed significant doubts on Wednesday about whether Manafort could pursue a civil lawsuit. She questioned whether there was a clear limit on how broad a special counsel’s authority could be from the get-go; how Manafort had standing to sue over a possible future prosecution that hadn’t yet happened; and why he should be able to bring a civil lawsuit when he could make the same arguments in the criminal cases, where he clearly had the right to challenge the indictments.

The judge noted that the Justice Department regulations Manafort cited explicitly said that they did not create rights that could be enforced in a civil lawsuit.

That she’s raising objections from that motion suggests she finds them (unsurprisingly) persuasive.

Which means, absent some action from Trump or Rosenstein, Manafort will have to just sit there trying to negotiate bail and waiting for new charges until such time as he screams “uncle.”