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Manafort lawyers: Mueller “has not produced any materials” showing Manafort contacts with Russians (Updated)

Manafort lawyers: Mueller “has not produced any materials” showing Manafort contacts with Russians (Updated)

“no tapes, notes, transcripts or any other material”

There was an interesting filing recently by Paul Manafort in the prosecution by Robert Mueller’s team against him in the Eastern District of Virginia.

The filing concerned leaks reported in the media that were attributed by the media to government sources. Some of those media reports alleged Manafort contact with Russians. Manafort file a Motion (pdf.)(full embed at bottom) seeking a court hearing to get to the bottom of the leaks.

The motion is apart from motions Manafort has filed to suppress evidence obtained from his home and storage facility.

The motion has garnered attention because of a portion of the motion concerning the failure of Mueller to turn over any evidence substantiating the alleged Russian contacts.

The introduction to the motion sets the context of what Manafort is complaining about:

In the fall of 2016, the former chairman to Donald J. Trump’s presidential campaign, Paul J. Manafort, Jr., became the target of an apparent “leaks” campaign conducted by numerous unidentified government officials. Over the following sixteen months, current and former government officials-including law enforcement agents–disclosed confidential and ostensibly classified information to multiple media sources in an effort to substantially prejudice and adversely impact Mr. Manafort. These actions were in violation of the defendant’s Fifth Amendment right to due process, his Sixth Amendment right to trial before an impartial jury, and Rule 6( e) of the Federal Rule of Criminal Procedure. The government leaks may have also disclosed classified information, a felony, in violation of 18 U.S.C. § 798. Moreover, it appears that government officials or agents intentionally provided false information to media outlets, knowing that the information would be widely reported and that the disclosures would unfairly prejudice Mr. Manafort in his efforts to defend himself….

As discussed infra, the leakers in these articles are often identified as current and former government officials who have requested anonymity, who admit that they were not authorized to speak, and who were-astoundingly-providing information that was seemingly classified. Although the exact persons are not yet known, they must be identified. At bottom, these government-sourced disclosures have violated the Federal Rules of Criminal Procedure, internal government policies and procedures, federal statutes, and Mr. Manafort’s constitutional rights….

Importantly, former FBI Director James Corney, and former FBI Deputy Director Andrew McCabe, have admitted to leaking information to the press during their tenures at the FBI. Both individuals had direct involvement in the investigation of the Trump campaign.

After reviewing some of the leak reports (which also are exhibits to the motion), Manafort alleges (emphasis added):

The government-sourced leaks concerning surveillance of Mr. Manafort with foreign
individuals is particularly troubling. Despite multiple discovery and Brady requests in this regard, the Special Counsel has not produced any materials to the defense-no tapes, notes, transcripts or any other material evidencing surveillance or intercepts of communications between Mr. Manafort and Russian intelligence officials, Russian government officials ( or any other foreign officials). The Office of Special Counsel has advised that there are no materials responsive to Mr. Manafort’s requests. Of course, the natural implication of this is that these government leaks were intentionally designed to create a false narrative in order to gamer support for the appointment of a Special Counsel to investigate Mr. Manafort for purportedly coordinating with Russian intelligence/ government officials despite the lack of any such evidence. If this proves this to be true, then Mr. Manafort should not have been referred to the Special Counsel for investigation of coordination with the Russian government, nor for any other matters. Simply put, without original jurisdiction to investigate Mr. Manafort for alleged coordination with the Russian government during the presidential campaign of Donald J. Trump, the Special Counsel had – and has – no lawful authority or jurisdiction to investigate and prosecute Mr. Manafort for the matters that he has brought in this Court and in the District of Columbia. See United States v. Providence Journal Co., 485 U.S. 693 (1988); see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949).

The highlighted sentences have received attention, including from Chuck Ross at The Daily Caller and Molly Hemingway at The Federalist. You can read their takes at the links.

Mueller has not yet filed his response. It may be that there are no responsive documents in the government’s possession as relate to this prosecution of Manafort, which not even Mueller claims concerns alleged campaign collusion with Russia. So Mueller may be taking the position that there is nothing to produce as relates to this case.

We’ll have to wait and see if no documents means not documents whatsoever.

But that gets back to one of the original sins of the prosecution of Manafort — It was beyond the scope of Mueller’s authority when the investigation started and the raid on Manafort’s home took place. That Order of appointment has never been changed.

Mueller and Rod Rosenstein attempted to bootstrap authority in an August 4, 2017 memo, we previously discussed in Rosenstein Memo confirming Mueller could investigate Manafort came a week after raid on Manafort’s home:

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….

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….

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….

Rosenstein purporting to interpret the original Order of appointment is not in fact a change in the Order. Mueller’s authority is as it was when he was appointed, and that plainly does not include matters completely unrelated to alleged Russian collusion or crimes committed in the course of the investigation. Neither of those situations applies to the prosecution of Manafort.

The problem with this post hoc authority is that it also calls into question the integrity of the Mueller operation:

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.

Mueller has no business prosecuting someone for matters completely unrelated to alleged Russian collusion. After-the-fact expansion of authority by Rod Rosenstein, which did not change the appointing Order, cannot change that.

Mueller is torturing Manafort through these indictments without appropriate authority. That might be because Mueller thinks he can flip Manafort against Trump, or because Manafort’s refusal to cop a plea has so infuriated the Mueller team that they are going to make an example of Manafort.

In either case, Mueller needs to be limited to his actual authority. Hopefully the courts will do that, because it’s clear that Rod Rosenstein will not.

UPDATE 5-4-2018

Manafort Judge: Mueller only really cares about the “prosecution or impeachment” of Trump


U.S. v. Manafort – EDVA – Manafort Motion Re Media Leaks by Legal Insurrection on Scribd


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“calls into question the integrity of the Mueller operation”

What integrity? Were you under the weird delusion that Mueller or his investigation had any integrity? It’s a political hit job and nothing but.

    MarkS in reply to irv. | May 4, 2018 at 7:39 am

    Rep Louis Gohmert has compiled a 48 page resume highlighting Mueller’s “integrity”

      notamemberofanyorganizedpolicital in reply to MarkS. | May 4, 2018 at 3:27 pm

      Haven’t they traced a lot of those illegal leaks back to Mueller’s FBI?

Which is real? And which is an illusion?

    jl in reply to Elric. | May 4, 2018 at 2:42 am

    Think about it. Out of all the hysterical claims about Russia, what have they actually done?

    They bought a few social media ads, supporting or criticising the entire spectrum of presidential candidates, and social movements.

    They allegedly hacked into the DNC server and distributed emails, but we and the Federal Government have to accept the word of consultants hired by the DNC, as they wont let anyone examine the server.

    They launched a few unsuccessful penetration tests of various States networks, which was probably a frequent occurrance when were were busy hitting the Russian reset button.

    And they duped John Podesta into giving up his gmail password and they stole his email and leaked it.

    Am I missing anything? That’s it.

    So, when you ask what to believe, think about what people have been telling you to believe for almost two years, and see if reality has caught up yet.

    It hasn’t.

First-world nation. Extraordinary corruption.

notamemberofanyorganizedpolicital | May 3, 2018 at 9:35 pm

What is this all about?

“NBC Report on Cohen Wiretaps Confirms Prior Information – Mueller Investigation Took Over FBI Counterintelligence Operation…”

Does this mean Mueller was colluding with Hillary and the DNC in their crimes?

Could this be an attempt by Manafort to pry the prosecution of this case out from the grasping fingernails of the Mueller inquisition and into a different venue where less pressure can be put on him? I.e. getting him a fair trial instead of being tied to the railroad tracks.

4th armored div | May 3, 2018 at 10:09 pm

NOT being a lawyer, it seems to me, that this whole thing has been cooked up by Zero and the Inquisition.

as i remarked the other day, how can a DOJ prevent the necessary work of the POTUS – and for that matter, i.e. seperation of powers, how can the senate or house ‘protect’ Mueller from being fried – err, fired ?

    Tom Servo in reply to 4th armored div. | May 3, 2018 at 10:41 pm

    how can the senate or house ‘protect’ Mueller from being fried – err, fired ?”

    They can’t. If those idiots knew any history they’d know we already had this fight in 1866.

      MarkS in reply to Tom Servo. | May 4, 2018 at 7:42 am

      Wonder how those miscreants on Capitol Hill would respond if the DOJ investigated the firing of the House Chaplain

Gremlin1974 | May 3, 2018 at 10:34 pm

Why does Jeff Sessions still hold the title of AG? It is obvious that Rob Rosenstein is actually in charge. Sessions needs to get control of this KeyStone Cops episode or resign and let someone who is willing to do the job step up.

So how is it that Trumpers would believe that the crook, Paul Manafort, who laundered money all over the world and took money belonging to the former president of the Ukraine is somehow more forthright than Robert Mueller? As for the redacted memo that gained a favorable ruling from the courts on April 4 that Mueller was well within his authority in charging the former Trump campaign chair, it is inconceivable to believe that Rosenstein made up the rules on the fly, so there is no reason to accept the latest Trump-driven conspiracy theory.

Remember that Manafort’s indicted co-conspirator, Rick Gates, has rolled on Manafort – so he will go to prison. The good news for Manafort is that Mueller and the defense have asked the judge to delay sentencing for another 90 days.

I do not believe the fact the motion addressed (or any other government officials) is something that should be glossed over whatsoever. Contacts between Manafort and Ukraine government officials, past and present, are extremely relevant to this prosecution.

His motion will fail. The DoJ regulations are explicit: they do not create a right that defendants can enforce in a court of law. (The DoJ wrote them, so why would they be otherwise?) However, claiming not to have any intercepts between Manafort and officials of countries that are not Russia, this is news.

    jl in reply to JBourque. | May 4, 2018 at 2:45 am

    The procedure for appointing a special counsel is defined by statute. Not internal DOJ procedure.

      The regulation is contained in 28 CFR Part 600. This is not a statute. The statute authorizing the Attorney General to make such regulations is

      28 U.S. Code § 510 – Delegation of authority
      The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

      There is no longer an Independent Counsel, and that authority expired almost two decades ago following the end of President Clinton’s second term…

Since when were Ukrainians the Russians and since when did merely talking to people become conclusive evidence of collusion with Russia?

Here we are nearly 2 years after the election and still no evidence Trump or anyone associated with him colluded with Russians BUT there is a ton of evidence Democrats colluded with Russians.

    Arminius in reply to mailman. | May 5, 2018 at 11:37 pm

    “Since when were Ukrainians the Russians and since when did merely talking to people become conclusive evidence of collusion with Russia?…”

    Since the toilet aka the swamp found out that no-s*** America wanted it flushed.

WarrenPeese | May 4, 2018 at 2:12 am

Manafort was indicted for financial fraud, money laundering, making false statements and for failing to register as a foreign agent. Manafort was not indicted for colluding or conspiring with Putineers, which should explain why Mueller was under no obligation to furnish documents in what may be an ongoing investigation. The easy conclusion is that the filing by Manafort’s lawyers is a political document, which perhaps explains why their countersuit was set aside.

    tom_swift in reply to WarrenPeese. | May 4, 2018 at 10:34 am

    Manafort was not indicted for colluding or conspiring with Putineers, which should explain why Mueller was under no obligation to furnish documents in what may be an ongoing investigation.

    It should also explain why investigation of these things is far outside Mueller’s purview.

This chaos rests squarely in the lap of GOPe rat Sessions.

The fix is in.

Guiliani for Sessions.

The Sessions for prison.

Process crimes everyone else is guilty of committing but apparently only conservatives need fear the law.

    rabidfox in reply to mailman. | May 5, 2018 at 1:20 pm

    And given that the FBI doesn’t record THEIR interviews in any manner and they have been known – at least once officially – to alter the 302 written report after the subject was interviewed; I’d say that depending on the FBI’s word that someone lied to them is problematical. I expect we’re going to see some convictions challenged in the near future if those convictions were made based on the 302 evidence given by the FBI. They aren’t known as the FIBs for nothing these days.

They have evidence of Russian private citizens, not the Russian government. mule ears even issued arrest warrants for some Russians that can not and will not be served.

How much money did CGI get from Russians? Where is the anal exam investigation of Bill Clinton as an unregistered foreign agent? Past presidents get a pass unlike the incoming administration? The political/legal persecution of Trump and associates should scare everyone

The very definition of a witch hunt. Make the evidence confess.