Manafort’s Lawyers Will Challenge the Legitimacy of Prosecuting the Ukrainian Money Laundering

Over the weekend, I did a Twitter thread on the fun stuff in the latest filing from Paul Manafort’s lawyers asking (among other things) that he be let off his GPS monitor. Now that others are reviewing the filing, I’m seeing lots of people miss a key part of what his lawyers are doing.

As I noted, in a footnote, Manafort’s lawyers point out that the crimes he has been charged with all pre-date the election.

Of note, his work on behalf of the Ukrainian clients ended around two years before Mr. Manafort agreed to work as the campaign manager for then-candidate Donald Trump.

It’s a point they’ve made before. But it has been misunderstood as a bogus point.

It’s not. Here’s how the defense has said they’re going to defend against this indictment.

At this time, the defense anticipates that pretrial motions will be filed concerning the legal basis for and sufficiency of the charges, the suppression of evidence improperly obtained by search warrant, subpoena or otherwise (including the application of exceptions to common law privileges), as well as motions in limine based on discovery to be provided by the Government in preparation for trial.

To some degree, this is part of a challenge the defense will make to the charging of FARA crimes generally. As they rightly point out, that simply hasn’t gotten prosecuted.

The Government’s case also concerns whether Mr. Manafort was required to file a report as a foreign agent with the U.S. Department of Justice. The U.S. Department of Justice has only brought six criminal FARA prosecutions since 1966 and it has secured only one conviction during this period. It is far from clear what activity triggers a requirement to file a report as a foreign agent. In order to conceal this weakness in the Indictment, a façade of money laundering has been put forth using a tenuous legal theory. When the money laundering count is peeled back from the Indictment, the forecasted sentencing guidelines are reduced substantially to a fraction of those claimed by the Office of Special Counsel.

What they’re ignoring is that the FARA charges are tied to both the money laundering they want to dismiss (Weekly Standard quotes people saying “it doesn’t make sense” to have spent $1M on rugs in Alexandria) and to false statements charges that (as DOJ keeps pointing out) have already been validated in the process of getting Manafort’s lawyer to waive privilege to explain how she was lied to.

But it also suggests they’re going to go after not only the no-knock warrant from this summer (which obtained information proving that Manafort and Gates keep records longer than the six months they have claimed to DOJ in the past), but also other subpoenas and the legal basis for the changes. That is, it suggests they’re going to challenge Mueller’s authority for investigating these old crimes which, public reporting made clear, long preceded the authorization of the Special Counsel. The legitimacy of the new evidence collection and charges depends on the legitimacy of the exercise of the Special Counsel authority, which is in turn based on,

(i) any links and/or coordination bet ween 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;

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

The entire point of noting that the crimes charged here predate the election is to lay the groundwork for legal challenges. Manafort’s lawyers are laying groundwork to claim that these charges 1) don’t pertain to coordination on the election and 2) can’t say to have arisen out of them, because they predated them. Again, that ignores that the 28 CFR §600.4(a) permits Mueller to investigate, “intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses,” which Manafort’s false statements about the FARA registration might certainly be construed as.

Now, to be clear, I don’t think such a challenge will succeed (in part because of those false statements charges, which are dated to November 23, 2016 and February 10, 2017; the conspiracy to defraud the US also continues through 2017 and in part because Acting Attorney General Rod Rosenstein approved the charges). I also think this Politico piece, which talks about such legal threats, overstates the legal danger of such a challenge (in part because it cites all number of Republican lawyers, including Trump lawyer Jay Sekulow, who are being teed up to bitch about the legitimacy publicly).

But I do think it’s a legitimate tactic, one that will serve Manafort’s defense, even outside the world of the Sukulow spin.

First, the charges as laid out are designed to steer clear of the election related stuff so Mueller can get Manafort to flip and testify on those without laying out what he already knows. They’re also designed to parallel similar charges in NY that can be charged if Trump pardons Manafort. By challenging the legitimacy of the tie between the Ukraine consulting and the election, Manafort may force Mueller to show more of his hand, notably to include why he believes the lies Manafort told last November and in February are part of the election cover-up (I can easily imagine how Mueller would explain it, but imagine he doesn’t want to do so, yet). Alternately, to substantiate the ties, Mueller may choose to issue a superseding indictment, tying the Ukraine work more closely to the election stuff, but I suspect he doesn’t want to do that, yet.

Also, to the extent that the challenge gets litigated now rather than on appeal (when it will definitely get litigated, if this goes to trial), Manafort may test the guidelines for something the President very much wants to test: whether Mueller can prosecute old business corruption (that in the case of both men happens to implicate compromise by the Russians). Manafort will be taking logical steps for his own defense, but also doing the work of the man who ultimately holds Manafort’s ticket to freedom.

Finally, there is the entire point of propaganda. So long as Trump can claim that nothing substantial has been charged against his campaign, both by noting (as he has, repeatedly) that Manafort’s charges are unrelated to the election and George Papadopoulos is some random coffee boy, Republicans and Trump supporters will have more space to support him. Once that changes — and the moment that changes will be one of the most fraught legal moments in this case — things may get a lot harder for Trump.

But for now, Manafort is helping the PR case along, and will continue to to the extent that his lawyers continue to argue that the crimes ended well before the campaign.

Update: As Josh Gerstein notes in his story on the government’s latest filing, Manafort and the government are actually disputing how long his work in Ukraine lasted:

The parties do dispute one minor factual point: Manafort claims that his work in the Ukraine ended in 2014, ECF#32 at 3, while the indictment alleges his continued work through 2015 on behalf of the Opposition Bloc, after the flight to Russia of President Victor Yanukovych. Indictment ¶ 1.

I have a feeling that discrepancy could end up less minor than suggested.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

16 replies
  1. jp says:

    …But I do think it’s a legitimate tactic, one that will serve Manafort’s defense, …
    Driving while black being pulled over for a turn signal violation seems to lead to the same types of “discovery” says me confused watching from home.
    Eventually arrested for resisting arrest is different how ?
    Not trolling I hope.

  2. Bay State Librul says:

    Interesting.
    Didn’t know crimes, like a novel, have a beginning, middle, and end date?
    Has Manafort filed his 2016 Tax Return?
    His crimes are streaming toward conviction.
    I still think the Justice Department is one source of the leaks

  3. bmaz says:

    I disagree, this is an argument that has to be made to be preserved, but is going exactly nowhere. In fact might be arguably spurious but for the ethical duty of defense counsel to preserve it.

      • NorskieFlamethrower says:

        It appears to me that at least at this time most of the responses from those indicted or at risk of indictment are to provide media fodder, pressure for indication of what Mueller has, where he’s been and is going and to distract from understanding an obviously complex case. Would Mueller make a mistake about the provable dates of when Manafort ended his work for the Opposition Bloc?

         

  4. Peterr says:

    There are several ways in which moneylaundering that pre-dates the campaign could easily be in play during the campaign, like a hypothetical phone call, in the midst of the late primaries prior to the convention just after Manafort came on board Team Trump . . .

    *ring ring*

    Manafort: “Hello?”

    Russian voice: “Pavel Ivanovitch! How good to speak with you.”

    Manafort: “Who is this?”

    Russian: “I’m a friend of your friend Viktor Yanukovych, and a friend of one of your other very highly placed friends in Moscow. One of them, the most highly placed one, wanted to know how your new job with Mr. Trump is going.”

    Manafort: “Uh, I’ve just started, but we’re on the right track.”

    Russian: “Glad to hear it. I’ll pass that along to our very highly placed mutual friend. He also wanted to know how you were coping in . . . how to put it? . . . clarifying the status of your compensation for your work on behalf of our Ukrainian colleagues. Have you been able to remove the obstacles that keep you from being able to fully enjoy the fruits of your labors?”

    Manafort: “I’m working on that, but please, let’s not . . .

    Russian: “I’m glad to hear that, too. If there is anything our mutual friend can to to help with that, please — all you have to do is ask.”

    Manafort: “I’ll keep that in mind. But please, surely you didn’t call me to chat about such an inconsequential matter.”

    Russian: “Ah, Pavel — always one to get right to the point! Very well . . . Our mutual friend would like your assistance with a few minor things, involving your new boss and his ongoing campaign against that vicious Clinton woman.”

    Manafort: “I’m not sure about . . .”

    Russian: “You misunderstand me, so perhaps my English was not clear. This was not a request, but a statement.”

    Manafort: *pause* “Oh.”

    Russian: “I believe I am being clearer now? I hope so, as it would be a shame if your financial difficulties were to become more publicly known in your country.”

    Manafort: “What can I do for our mutual friend? . . .”

    It would be a shame for Pavel Ivanovitch if an actual recording of a hypothetical phone call like this were to become more publicly known, too.

    • brightdark says:

      As in the NSA recorded it and gave it to the FBI. That opens up a whole new can of worms with questions on the legality of the recording. The NSA might be ordered to produce the details of the how/when/etc of the recording. Details they really don’t wish to be aired in public. Also the FISA court could be dragged in with the actual warrant being brought out.

       

      The government could fight the release and exposure using the graymail laws but the publicity would not be good.

       

  5. Avattoir says:

    The comment by bmaz fits with the position I’ve always taken: if the person accused fails or neglects to raise this sort of ‘defense’ as early as feasible, that person will be deemed to have acquiesced to the court’s jurisdiction to hear the case on its merits.

    It’s impossible to please everyone in this: forget opposing-side attorneys, at least when serving in the capacity of a defending attorney I’ve experienced multiple incidents of judges, both in informal and formal in court settings, in my face, launching snide innuendos, taking cheap shots, & using such motions as excuses for deeply offensive, flat-out wrong rants at bar functions attacking these as abusing the system, chronic obstruction, & wasting public monies.
    But just read what appellate courts routinely rule whenever the practice ISN’T followed.

  6. scribe says:

    Actually, the defense’s argument is laying the groundwork for an extended argument that Mueller is taking his authorization and turning it into a roving commission to find something, anything to prosecute people associated with the Trump campaign.  In other words, “show me the defendant, and I’ll find a crime”.  Or, refraining from the Beria subreference, “Mueller’s decided Manafort’s a witch from Trump’s coven, and is conducting a witch hunt.”

    Whether it’s a good legal argument is one thing.  Not likely, in my view.  Whether it’s a good political argument (or court of public opinion argument) is something entirely different.  And I see the political argument as a much stronger one.

    • Rugger9 says:

      However, it is exactly what was blessed before when Ken Starr took over the Whitewater probe.  Mueller is smart enough to push back if they try to rein him in.

      • SpaceLifeForm says:

        The Paradise Papers will make the attack on the SC authority moot. Too many other things will come out that other legal jurisdictions will deal with that the SC will just be noise in the big picture.

      • scribe says:

        The legal basis for special prosecutors like Ken Starr – independent counsel – expired in the late 90s and was not renewed.  In the exhausted aftermath of the Clinton impeachment no one wanted to set that golem loose again.  Starr could not [easily] be fired, nor could he be reined in by other than the judges who supervised him.  Whatever “blessing” may have existed for Starr’s conduct went away with the independent counsel law.

        As a legal matter, Mueller can be fired tomorrow.  That he hasn’t been merely reflects the political realities of the situation.

    • NorskieFlamethrower says:

      “Whether it’s a good political argument…is something entirely different.”

      Bingo!! You get a coverall!

       

  7. arbusto says:

    While INAL, my reading of 28 CFR 600.4 para (b) and (c) lead directly from (a) in that during an investigation a crime may have been uncovered that may or may not part of initial jurisdiction. I can’t imagine that Rosenstein would balk at underlying or unrelated crimes uncovered be investigated/litigated as allowed by 600.4

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