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