Image 01 Image 03

Rosenstein Memo confirming Mueller could investigate Manafort came a week after raid on Manafort’s home

Rosenstein Memo confirming Mueller could investigate Manafort came a week after raid on Manafort’s home

Post hoc justification for Mueller conduct that does not appear authorized by the text of the original May 17 appointing Order.

Paul Manafort has moved to have the October 27, 2017 Indictment, and subsequent Superseding Indictment, dismissed on the ground, among others, that Robert Mueller has exceeded the authority granted him on May 17, 2017, when he was appointed by Deputy Attorney General Rod Rosenstein.

The argument is that the indictment of Manafort for business dealings is unrelated to and took place years before 2016 Russian election interference and alleged collusion.

I made a similar point with regard to the guilty plea of Michael Flynn for lying with regard to post-election transition matters, Why is Robert Mueller even investigating the presidential transition?

In Order No. 3915-2017, Mueller was appointed with a specific mandate, to continue an investigation started by James Comey into Russian interference in the election:

(a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States Department of Justice.
(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

At the March 20, 2017 hearing, Comey described the investigation as relating to election interference:

As you know, our practice is not to confirm the existence of ongoing investigations, especially those investigations that involve classified matters, but in unusual circumstances where it is in the public interest, it may be appropriate to do so as Justice Department policies recognize. This is one of those circumstances.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the ature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

(Full transcript here)

Comey’s reference to a “counterintelligence investigation” clearly was in the context of the preceding sentence of interference in the election. So to the extent the Order governs Mueller’s authority, that authority is limited to the election-related matters, including counterintelligence investigations related to the election.

Mueller cannot successfully argue that the political discussions during the transition fall under his power, under the Order, to investigate under 28 C.F.R. § 600.4(a), which concerns “federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” There was no Special Counsel investigation during the transition, so there was nothing with which the Trump transition team could interfere.

In opposition to Manafort’s motion, Mueller submitted Brief in Opposition, which attached as an exhibit an August 2, 2017 Memo, which purported to confirm to Mueller that Manafort’s prior business dealings were covered by the original order of appointment.

Politico reports:

However, Mueller’s team submitted a previously undisclosed memo to a federal court in Washington showing that a few months after Mueller was appointed last May, Rosenstein gave him explicit authority to target Manafort over the financial aspects of his lobbying work for the Ukrainian government — in addition to allegations he was linked to Russian interference in the 2016 election.

“The May 17, 2017 [appointment] order was worded categorically in order to permit its release without confirming specific investigations involving specific individuals,” Rosenstein wrote in the Aug. 2, 2017 memo. “The following allegations were within the scope of the Investigation at the time of your appointment and are within the scope of the Order: … Allegations that Paul Manafort: 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.”

Large chunks of the text of the three-page “scope” memo placed in public court files Monday were blacked out because they contain classified and sensitive law enforcement information, prosecutors said. However, those portions appear to identify various subjects and topics Mueller was authorized to investigate at the outset of the investigation.

Prosecutors also said Rosenstein — who has sometimes been the focus of Trump’s ire — gave a specific go-ahead for Manafort’s indictment and Mueller’s other critical moves in the probe.

“Every key step in this case — including the investigative path and the Indictment itself — has been authorized by the Acting Attorney General through ongoing consultation,” Mueller’s team wrote in a brief opposing Manafort’s bid to throw out the D.C. case.

The August 2, 2017, Rosenstein memo clearly is being used by Mueller to affirm Mueller’s authority to investigate Manafort’s non-election-related, years-old business dealings. But the timing jumped out at me.

By the time of the August 2 memo, Mueller already was investigating Manafort’s business dealings and gathering evidence for an indictment (which would be unsealed less than three months later).

On July 26, 2017 — a week before the Rosensten memo — Mueller’s team raided Manafort’s home, as the Washington Post reported on August 9, 2017:

FBI agents raided the home in Alexandria, Va., of President Trump’s former campaign chairman, arriving in the pre-dawn hours late last month and seizing documents and other materials related to the special counsel investigation of Russian meddling in the 2016 election.

The raid, which occurred without warning on July 26, signaled an aggressive new approach by special counsel Robert S. Mueller III and his team in dealing with a key figure in the Russia inquiry. Manafort has been under increasing pressure as the Mueller team looked into his personal finances and his professional career as a highly paid foreign political consultant.

Using a search warrant, agents appeared the day Manafort was scheduled to testify before the Senate Judiciary Committee and a day after he met voluntarily with Senate Intelligence Committee staff members.

The search warrant requested documents related to tax, banking and other matters. People familiar with the search said agents departed the Manafort residence with a trove of material, including binders prepared ahead of Manafort’s congressional testimony.

The August 2, 2017 memo was classic boostrapping. It purported to confirm Mueller’s authority to go after Manafort’s business dealings, but Mueller already was doing that and had been doing it for weeks, culminating in the July 26 home raid.

So to the extent the Rosenstein August 2, 2017 memorandum is supposed to instill confidence that Mueller is receiving proper DOJ oversight, it does just the opposite. As least as to the portion revealed about Manafort, it shows a willingness to give post hoc justification for conduct of Mueller that does not appear authorized by the text of the original May 17 appointing Order.

UPDATE 4-5-2018 — I had a chance to discuss this post on The Mark Levin Show (transcript here).


Donations tax deductible
to the full extent allowed by law.


Manafort is being screwed by this monster and it needs to stop. It’s disgusting. What, he worked for like 2 months for Trump and the pigs broke into his house, manhandled his wife.

I hope those pigs lose their jobs and some of the FBI and attorneys go to jail.

    notamemberofanyorganizedpolicital in reply to gonzotx. | April 3, 2018 at 10:01 pm

    Or to paraphrase a quote of one of the President Bushes….

    “Mueller is in Deep…Bush Bush!!!!!!”

    MattMusson in reply to gonzotx. | April 4, 2018 at 7:31 am

    You guys are missing a Key Point here. This letter also NARROWED the scope of the Investigation. But this time Mueller had proof that key FBI and DOJ officials conspired against the President and lied to the FISA Court.

    This Memo put those issues outside of the Investigation. Mueller did not have to investigate them.

    carolinatarheel in reply to gonzotx. | April 5, 2018 at 9:50 am

    It’s interesting that AFTER Crooked Hillary and the DNC were identified for paying for smear documents, Mueller decided to bring charges against Manafort!

    Crooked Mueller is simply trying to protect Crooked Hillary and undermine our duly elected President!

    America First!

    JohnC in reply to gonzotx. | April 5, 2018 at 12:20 pm

    DA: Yes, your Honor, technically the police didn’t stop to get a warrant before ransacking the defendant’s home but they would have been given one if they had bothered to ask. So, there’s absolutely no reason to throw out any of the evidence they collected. I mean, they would have found it sooner or later anyway, right?

You got to wonder if the Aug 2 memo contains any information that was learned as a result of the July 26 raid.

There’s a reason we don’t issue warrants and allow prosecutors to fill in the blanks after the warrant is executed.

If the May 17 appointment memo clearly set the scope of the investigation, and these issues were within that scope from the beginning, why the need for an additional memo on Aug 2?

This whole thing stinks. I think this filing helps Manafort’s case more than it hurts it.

    amwick in reply to jl. | April 4, 2018 at 9:04 am

    Why narrow the scope of the investigation? Is it possible the investigation might turn rocks over, exposing the “wrong” bugs underneath?

    Jackie in reply to jl. | April 5, 2018 at 7:37 am

    It won’t matter. There can be proof that Mueller is running a criminal enterprise, Sessions would do nothing. Rosenstein is a witness in the alleged Trump obstruction case and continues to run Mueller’s Investigation, yet he doesn’t recuse himself and Sessions does nothing.

Maybe we should do this from now on, i.e., whenever a new president is elected an independent counsel controlled by the new president’s opponents shall be appointed to investigate every aspect of the new president and everybody he ever knew, with the objective of getting the new president impeached and having him and all of his associates thrown into prison.

Bar exam.
post hoc bootstrapping:

[ ] legal.
[ ] illegal.
[ ] other.

regulus arcturus | April 3, 2018 at 10:15 pm

Exactly. The timeline is extremely problematic for Rosenstein, and Mueller.

Additionally, Robert Barnes (Barnes Law) finds 5 major problems with this memo –

The stench coming out from Mueller’s investigation, his tactics, as well as his history of botched investigations, all seem to pile on so much hubris about this Manafort affair.

I have no trust in Rosenstein playing things straight, as this all looks far too cozy and his involvement with things shady. Mueller, Comey, the tainted FBI agents with the implied plans for a type of contingency plan which reeks, the Hillary campaign ties, and the strong ties that all of these people have to Obama and Hillary. Coincidences are rarely chance circumstances that just tie to together far too conveniently, and when you have a growing preponderance of things like these, it almost becomes absurd to think there isn’t shady things going on. This looks like an attempted coup, using extra-legal means under the cover of a legitimate legal heading.

I don’t doubt that many of the personas involved have done some questionable activities or moves, though the ties to the supposed investigation are tenuous at best, and have no real dealing with this investigation. The widest possible scope was given with the hopes that casting the net wide enough, even going further back in time to where it would have no bearing on “Russian interference” in the elections, makes this a witch hunt for creating something to hang Trump with.

The questionable Comey exoneration of Hillary after laying out the crimes committed, then dismissal of it all saying no reasonable attorney would prosecute, even though many legal minds have stated given what Comey laid out, yes, they would have.

This is an almost Machiavellian scheme and cover up. And it reaches to high up in the DNC party and their cronies. The false narrative of the DNC email leaks being the work of Russians when too many sources have said it was an inside job, done by someone conveniently killed in a “Robbery gone wrong”, where nothing was stolen.

It would take an awful lot of evidence to convince me otherwise, that all the machinations and information is some plot laid out by Trump with the help of the Russians… there are just too many moving parts which are adding up the opposite way.

Sure seems to me that mueller should be arrested, disbarred and thrown in jail !

Seems to me that all of this fits the same M O
1) get a fake(illegally obtained) fisa warrant to illegally spy on Trump et al, before the election, then use the same fraudulent fisa warrant to cause a special prosecutor to be appointed
2)Raid Manafort then get a fraudulent MEMO to justify the raid

As the saying goes: same crap, different day !

    DaveGinOly in reply to Lewfarge. | April 4, 2018 at 5:41 pm

    It seems they’re operating under the “it’s better to apologize later than to ask permission first,” but without the “apology” part.

Mueller has a pattern of thug prosecuter tactics. Rosenstein is his stooge. Comey and McCabe too.

    hrh40 in reply to EBL. | April 4, 2018 at 9:15 am

    Speaking of Comey, if anyone watched Roseanne last night you were subjected to a popup on the lower left corner proclaiming “The Comey Interview Sunday April 8”. Comey was in contrasting color and VERY obnoxious so “you deplorables watching this Trump-neutral show can’t miss it”.

    Meanwhile later in the show they had another text in the lower left promoting the “The Middle” coming up after Roseanne, but this text was practically transparent, so you could barely read it.

    Hollywood really thinks we are deplorable bumpkisses out here who can’t SEE the PROPAGANDA they’re pushing. Sad, really.

This is so interesting. The guys at the top who colluded against Trump did not get there by being the smartest and the best, but
by being willing to kiss the right a@@. The problem they face now is that their colleagues, who were/are the smartest and the best (but unwilling to kiss a@@), are the ones who are now running the investigations against them.

It sucks to be them.

    elle in reply to elle. | April 4, 2018 at 2:50 am

    although, I suppose their skills in finding the right a@@ to kiss remain beneficial and can help them get themselves out of the mess they got themselves into. Tactics need not be pretty to be effective.

neanderthal | April 4, 2018 at 3:43 am

On the timing, it’s true that the raid on Manafort’s home came before this memo, but the memo says, “The following allegations were within the scope of the Investigation at the time of your appointment and are within the scope of the Order.” Which would seem to say that Rosenstein had given Mueller authorization to investigate the allegations about Manafort from the moment he was appointed.

So it sounds like Mueller had full authority from Rosenstein to do this from Day One, even though it did not fall under the public authorization he was given — since the Manafort accusations had nothing to do with the Russian election.

But if that’s true, then why would there need to be a memo written three months later? And more to the pint, if Mueller could prove he had the authorization from Day One, why couldn’t he produce a memo written before this one?

It really looks like the memo was written after the fact, and the language about “at the time of your appointment” was added to try to claim this had been the case all along.

If anything, producing a memo written months after the appointment claiming to outline allegations that were in scope three months before looks like an attempt to CYA.

Sessions should be locked up with the traitors he is protecting.

Connivin Caniff | April 4, 2018 at 5:47 am

Under the Special Counsel parameters Rosenstein SIMPLY DID NOT HAVE THE AUTHORITY HIMSELF to grant Mueller the authority to investigate or prosecute Manafort for the subject alleged crimes. Sessions – fire Rosenstein!

Bucky Barkingham | April 4, 2018 at 7:40 am

Very good points, but so what! Who is in a position, and is willing, to call Müeller to account? If Sessions tries to do so it will be called obstruction of justice by the usual Leftist suspects.

Why does Rosenstein still have a job? Is Mueller just trying to run-out the clock until the November 2018 election? Will this cost the Democrats seats?

    MarkSmith in reply to bflat879. | April 4, 2018 at 1:54 pm

    I am guessing that they are giving him and Mueller enough rope to blow the case.

    carolinatarheel in reply to bflat879. | April 5, 2018 at 10:07 am

    Our FBI is corrupt and dangerous!

    Mueller, Comey, Rosenstein, McCabe, Strzok, Page, Bill & Hillary, along with Loretta Lynch should be subpoenaed and prosecuted!

    America First!

The Deep State left unchecked will resort to their own measures and self justification. Unless stopped, we get a repeat of history: Ministerium für Staatsicherheit.

Bitterlyclinging | April 4, 2018 at 9:26 am

America’s very own Lavrenti Beria, unchained.
“Show me me the man and I’ll find you the crime”
When will it be stopped?

Pat Benevolous | April 4, 2018 at 12:35 pm

I don’t remember the FBI raiding Hillary’s home. And I don’t remember them seizing her computer. Wonder why?

    DaveGinOly in reply to Pat Benevolous. | April 4, 2018 at 5:45 pm

    Because Comey had already written his statement excusing her from the consequences of her actions. Why do a real investigation (and real work) when you know the boss has already made up his mind?

I’ve seen shoddy or botched prosecutions in my time. Over the last year I’ve seen nothing but corrupt, incompetent, illegal, and politically motivated actions from the FBI.

No wonder the pulse shooters wife got off, nobody trusts the FBI anymore. It’s dirty from snout to tail tip. Mass firings at all levels need to happen yesterday. Same with the IRS, BLM, EPA, etc. Clean out the stables by diverting a river it’s the only possible solution.

Seems even to a legal layman to be a blatant procedural infraction and an arrogant attempt to frame Manafort. That said, what will Sessions or a regulatory office or the IG do about it? We know the answer, probably nothing. Sessions remains a dud and Republicans are stuck in perpetual Benghazi mode. I hope that I am soon surprised to the contrary.

    MarkSmith in reply to jack burns. | April 4, 2018 at 2:01 pm

    You have not been tracking this matter. If you understood what the IG is doing and the who U.S. attorney John Huber is, you might think different. Excellent analysis over at Tree House about every aspect of DOJ/FBI. My understanding is John Huber has been engaged since 2017 as the IG made progress.

      MarkSmith in reply to MarkSmith. | April 4, 2018 at 2:10 pm

      What is interesting is how the SC team got created and by whom. James Baker seems to play a role in it and is part of the scheme team connected to Comey and Mueller. The more bad stuff about Trump means all hell is going to break lost with the scheme team.

      Legal procedures have been broken all over the place including FISA Applications, improper interviewing. The Manfort case is going to expose it all. To bad it might ruin him in the process.

        carolinatarheel in reply to MarkSmith. | April 5, 2018 at 10:13 am

        Crooked Mueller has hired a team of former Crooked Hillary attorneys and donors to investigate our duly elected President!

        They are not investigators—-they are prosecutors!

        President Trump stands behind what’s good for America and we should stand behind him!

        America First!

      jack burns in reply to MarkSmith. | April 4, 2018 at 2:11 pm

      In fact I have tracked all of these matters and admire Sundance’s thorough analysis. However, at the end of the day it is Obama appointed talent doing the investigating and that is just fine with Sessions. The infraction noted here should be a no brainer. Heat should be coming down on Rosenstein and Mueller and it is not.

Once again, I caution people not to look at this stuff as isolated. I have given my opinion that the entire Russia/Collusion investigation, after the inauguration existed for the main purpose of protecting Obama Administration personnel who were engaged in improper and illegal actions during the last Presidential campaign. And, as investigations into this have continued, we now know that a small group of high ranking officials in the DOJ, FBI, CIA and now possibly the State Department were engaged in illegal surveillance of the Trump campaign. This is why Sessions recused himself, to keep from getting sucked into the quagmire which would have forced him to do things to actively protect these people. Yet, he appointed Rosenstein who acted to protect the Obama officials who would be caught up in the scandal.

So, once again we have to look at timing. Sundance has a pretty good analysis of the timing on this letter here:

The Manafort raid was likely an attempt to deflect attention from the public release of the existence of the Strzok/Page texts. It was further used as an excuse to have Rosenstein write a CYA letter for Mueller to allow him to ignore what was surfacing from the DOJ/FBI cesspool, the orchestrated activities to illegally surveil the Trump campaign. Remember, even if Mueller was unaware of the anti-Trump activities prior to the election, he is aware of the continuing anti-Trump activities and knows that his position is to continue to persecute Trump and the Trump administration. When the Strzok/Page texts surface in IG Horowitz’ possession, he realizes that he has a problem. Not only do these two actually work for HIM, but the actions of the DOJ and FBI, during the investigation into Russia/Trump collusion, which he inherited from the FBI, are a “related matter”.

This all looks very complicated unless you view it in the light of protecting senior Obama Administration officials who committed improper and, in some cases, illegal acts to advance a political purpose. This explains the investigation, its continuance, the rabid push for impeachment, the process crime charges against Manafort and the complete turn around concerning Flynn’s interview with the FBI. It is all smoke and mirrors, deflection and suppression. Mueller knows what is going on and is now involved to some degree and wants some credible deniability.

Everyone, except DJT and the members of his campaign, are grabbing for a life preserver, including Mueller.

Mueller’s bozos with Rosenstein’s stinking permission and at his behest, smashed their way into Manafort’s home in the wee hours of the morning and divested it of every piece of paper. After perusing this material, Rosenstein proceeded to give Mueller permission to prosecute Manafort on the basis of irregularities that were ripped from his possession.
This is not Russia or Nazi Germany—JUST YET!
Hopefully a judge with the decency and integrity of Emmett Sullivan will get to preside over the Mueller/Rosenstein shenanigans and throw the whole damned business the hell out of court.
If this JUSTICE does no prevail, Trump must completely pardon Manafort poste haste.
These abhorrent unconstitutional practices must be halted forthwith and their perpetrators punished to the fullest extent of the law and then some.

    DaveGinOly in reply to Buzzer. | April 4, 2018 at 5:53 pm

    I’ve complained for decades that the feds would use a search warrant for an elephant to take every paper from a desk and to seize a computer, in spite of the infinitesimally small chance that there may be an elephant hiding in a desk or on a hard drive.

Gunnar Myrdahl | April 4, 2018 at 6:16 pm

Ronald Reagan was wrong: The Deep State is The Evil Empire!

inspectorudy | April 4, 2018 at 6:52 pm

There is one overriding thing to remember in this cow pie and that is Rosenstein APPOINTED Mueller! They are both suspects in the Uranium One deal and what better cover could the two of them be provided than to have each other’s back! If this was a theme in a Hollywood movie no one would buy it!

“The August 2, 2017 memo was classic boostrapping. It purported to confirm Mueller’s authority to go after Manafort’s business dealings, but Mueller already was doing that and had been doing it for weeks, culminating in the July 26 home raid.”

Why are you doing this, Professor? Why do you keep instigating this derangement, where your commenters now think the Trump-appointed AG, who supported Trump early on in the primary, is an anti-Trump deep-state criminal that needs to be locked up?

The memo is explicitly laying out the specific allegations that formed *THE ORIGINAL INVESTIGATION*. It is not laying out new parts of the investigation as of the date of the memo. You know this. You know this because you can read, and can comprehend what you read, which means you’re lying here. So I ask again, why are you doing this?

    Barry in reply to Awing1. | April 5, 2018 at 10:17 pm

    Commie questions a man of character.

    You are an idiot, complete and total.

    No crime, no investigation. The whole charade is just what it seems, a witch hunt being conducted by immoral charlatans.

Trump should have more press conferences to inform the public of these types of questionable practices. He should then fire Rosenstein