The Mueller Filing
Robert Mueller’s team has submitted its response to Paul Manafort’s motion to dismiss his indictment based on a claim Mueller isn’t authorized to prosecute crimes like the money laundering he is accused of. As I predicted, this filing lays out some theory of his case — but much of it is redacted, in the form of a memo Rod Rosenstein wrote last August laying out the parameters of the investigation at that time. As the filing makes clear, that memo (and any unmentioned predecessors or successors) form the same function as the public memos Jim Comey gave Patrick Fitzgerald to memorialize any seeming expansions of his authority in the CIA leak case, which the DC Circuit relied on to determine that the Libby prosecution was clearly authorized by Fitzgerald’s mandate.
Nevertheless, midway through the legal description, the filing lays out what I have — Manafort’s Ukrainian entanglements are part of this investigation because 1) he was a key player in the campaign and 2) had long ties to Russian backed politicians and (this is a bit trickier) Russians like Oleg Deripaska.
The Appointment Order itself readily encompasses Manafort’s charged conduct. First, his conduct falls within the scope of paragraph (b)(i) of the Appointment Order, which authorizes investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” The basis for coverage of Manafort’s crimes under that authority is readily apparent. Manafort joined the Trump campaign as convention manager in March 2016 and served as campaign chairman from May 2016 until his resignation in August 2016, after reports surfaced of his financial activities in Ukraine. He thus constituted an “individual associated with the campaign of President Donald Trump.” Appointment Order ¶ (b) and (b)(i). He was, in addition, an individual with long ties to a Russia-backed Ukrainian politician. See Indictment, Doc. 202, ¶¶ 1-6, 9 (noting that between 2006 and 2015, Manafort acted as an unregistered agent of Ukraine, its former President, Victor Yanukovych—who fled to Russia after popular protests—and Yanukovych’s political party). 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 Appointment Order is not a statute, but an instrument for providing public notice of the general nature of a Special Counsel’s investigation and a framework for consultation between the Acting Attorney General and the Special Counsel. Given that Manafort’s receipt of payments from the Ukrainian government has factual links to Russian persons and Russian-associated political actors, and that exploration of those activities furthers a complete and thorough investigation of the Russian government’s efforts to interfere in the 2016 election and any links and/or coordination with the President’s campaign, the conduct charged in the Indictment comes within the Special Counsel’s authority to investigate “any matter that arose or may arise directly from the investigation.”
I’ll do a follow-up on why the Deripaska reference is a bit tricky. It’s tricky in execution, not in fact.
The “Attorneys for the United States of America”
I’ll refer to the author of this memo as Mueller for convenience sake, but because I obsess about how Mueller’s team deploys, it’s worth noting how the memo is signed.
The memo is signed by Andrew Weissman, the lead in the Manafort prosecution and (as the memo notes) a career AUSA in his own right. Greg Andres, who has also been on all the Manafort filings, includes his DC district license, making any continuity there clear. Adam Jed, an appellate specialist who has been deployed to this team in the past, is included. But before all them is Michael Dreeben, the Solicitor General’s killer attorney on appeals.
Aside from Mueller himself, Andres is the only lawyer listed who was not a DOJ employee when Jim Comey got fired, which is relevant given the memo’s argument that these attorneys could have prosecuted this with or without Mueller present.
Notably, Kyle Freeny, who has been on all the other Manafort filings, is not listed.
I’m unsure whether the filing uses the title, “Attorneys for the United States of America” because it underscores the argument of the memo — all their authority derives directly from Rosenstein — or if it signifies someone (probably Dreeben, who maintains his day job at the Solicitor General’s office) isn’t actually a formal member of Mueller’s team. But it is a departure from the norm, which since at least the roll-out of Brian Richardson as a “Assistant Special Counsel” with the Van der Zwaan plea, has used the titles “Senior” and “Assistant Special Counsel” to sign their filings.
Update: Christian Farias notes that this Attorneys for the US is not unique to this filing.
Manafort is especially screwed because Rosenstein is so closely involved
The memo starts by laying out what its presents as the history of the investigation. It includes the following events:
- Jeff Sessions March 2, 2017 recusal
- Jim Comey’s March 20, 2017 public confirmation of an investigation into “the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was an coordination between the campaign and Russia’s efforts.”
- Rod Rosenstein’s May 17, 2017 order appointing Mueller Special Counsel “to investigate Russian interference with the 2016 presidential election and related matters”
It then lays out the regulatory framework governing Mueller’s appointment. While this generally maps what Rosenstein included in his appointment order — which cites 28 USC §§ 509, 510, 515, and 600.4 through 600.10 — Mueller also cites to the basis of the Attorney General’s authority, including 28 USC §§ 503, 516, and all of 600. The latter citation is of particular interest, as it notes that the AG (Rosenstein, in this case) ” is not required to invoke the Special Counsel regulations” (which the filing backs by citing some historical examples). The filing then asserts that the Special Counsel regulations serve as ” a helpful framework for the Attorney General to use in establishing the Special Counsel’s role.”
Mueller then describes what the filing implies has been the process by which Mueller has informed Rosenstein of major actions he’s about to take. This consists of “‘providing Urgent Reports’ to Department leadership on ‘major developments.'” By doing it this way, Mueller implies a process without providing a basis to FOIA these Urgent Reports.
Then, the filing lays out how the scope of his authority has evolved. Initially, he notes, that was based on his appointing order. On August 2 — two and a half months after his appointment, almost a week after George Papadopoulos’ arrest, and the day after Andres joined Mueller’s team — Rosenstein wrote a memo describing the scope of Mueller’s investigation and authority. That memo (which is included in heavily redacted form) authorizes Mueller to investigate,
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.
In other words, by August 2 (if not before) Rosenstein had authorized Mueller to prosecute Manafort for the money laundering of his payments from Yanukovych.
Significantly, the filing notes that the August 2 memo told Mueller to come back if anything else arises.
For additional matters that otherwise may have arisen or may arise directly from the Investigation, you should consult my office for a determination of whether such matters should be within the scope of your authority. If you determine that additional jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of your investigation, you should follow the procedures set forth in 28 C.F.R. § 600.4(b).
The filing then lays out Manafort’s DC indictments and his challenge to Mueller’s authority. The summary of that argument looks like this:
Manafort’s motion to dismiss the Indictment should be rejected for four reasons. First, the Acting Attorney General and the Special Counsel have acted fully in accordance with the relevant statutes and regulations. The Acting Attorney General properly established the Special Counsel’s jurisdiction at the outset and clarified its scope as the investigation proceeded. The Acting Attorney General and Special Counsel have engaged in the consultation envisioned by the regulations, and the Special Counsel has ensured that the Acting Attorney General was aware of and approved the Special Counsel’s investigatory and prosecutorial steps. Second, Manafort’s contrary reading of the regulations—implying rigid limits and artificial boundaries on the Acting Attorney General’s actions—misunderstands the purpose, framework, and operation of the regulations. Properly understood, the regulations provide guidance for an intra-Executive Branch determination, within the Department of Justice, of how to allocate investigatory and prosecutorial authority. They provide the foundation for an effective and independent Special Counsel investigation, while ensuring that major actions and jurisdictional issues come to the Acting Attorney General’s attention, thus permitting him to fulfill his supervisory role. Accountability exists for all phases of the Special Counsel’s actions. Third, that understanding of the regulatory scheme demonstrates why the Special Counsel regulations create no judicially enforceable rights. Unlike the former statutory scheme that authorized court-appointed independent counsels, the definition of the Special Counsel’s authority remains within the Executive Branch and is subject to ongoing dialogue based on sensitive prosecutorial considerations. A defendant cannot challenge the internal allocation of prosecutorial authority under Department of Justice regulations. Finally, Manafort’s remedial claims fail for many of the same reasons: the Special Counsel has a valid statutory appointment; this Court’s jurisdiction is secure; no violation of the Federal Rules of Criminal Procedure occurred; and any rule-based violation was harmless. [my emphasis]
The bolded bit is the key part: Mueller is treating Manafort’s challenge as a challenge to Article II authority, making the appointment even more sound than previous Ken Starr-type Independent Counsel appointments were, because they don’t present a constitutional appointments clause problem. Mueller returns to that argument several times later in the filing.
Under the Independent Counsel Act, constitutional concerns mandated limitations on the judiciary’s ability to assign prosecutorial jurisdiction. In the wholly Executive-Branch regime created by the Special Counsel regulations, those constitutional concerns do not exist.
[T]he court contrasted [limitations on Independent Counsels] with the Attorney General’s “broader” authority to make referrals to the independent counsel: the Attorney General “is not similarly subject to the ‘demonstrably related’ limitation” because the Attorney General’s power “is not constrained by separation of powers concerns.” Id.; see also United States v. Tucker, 78 F.3d 1313, 1321 (8th Cir.), cert. denied, 519 U.S. 820 (1996). That is because the Attorney General’s referral decision exercises solely executive power and does not threaten to impair Executive Branch functions or impose improper duties on another branch.
It is especially notable that Manafort, while relying on principles of political accountability, does not invoke the Appointments Clause as a basis for his challenge, despite the Clause’s “design to preserve political accountability relative to important Government assignments.” E
From there, the memo goes into the legal analysis which is unsurprising. The courts, including the DC Circuit in the Libby case, have approved this authority. That’s a point the filing makes explicit by comparing the August 2 memo with the two memos Jim Comey wrote to document the scope of Patrick Fitzgerald’s authority in the CIA leak investigation.
The August 2 Scope Memorandum is precisely the type of material that has previously been considered in evaluating a Special Counsel’s jurisdiction. United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006), involved a statutory and constitutional challenge to the authority of a Special Counsel who was appointed outside the framework of 28 C.F.R. Part 600. In rejecting that challenge, Judge Walton considered similar materials that defined the scope of the Special Counsel’s authority. See id. at 28-29, 31-32, 39 (considering the Acting Attorney General’s letter of appointment and clarification of jurisdiction as “concrete evidence * * * that delineates the Special Counsel’s authority,” and “conclud[ing] that the Special Counsel’s delegated authority is described within the four corners of the December 30, 2003 and February 6, 2004 letters”). The August 2 Scope Memorandum has the same legal significance as the original Appointment Order on the question of scope. Both documents record the Acting Attorney General’s determination on the scope of the Special Counsel’s jurisdiction. Nothing in the regulations restricts the Acting Attorney General’s authority to issue such clarifications.
Having laid out (with the Rosenstein memo) that this investigation operates in equivalent fashion to the Libby prosecution, the case is fairly well made. Effectively Manafort is all the more screwed because the Acting AG has been personally involved and approved each step.
The other authorities cover other prosecutions Mueller has laid out
The filing is perhaps most interesting for the other authorities casually asserted, which are not necessarily directly relevant in this prosecution, but are for others. First, Mueller includes this footnote, making it clear his authority includes obstruction, including witness tampering.
The Special Counsel also has “the authority to investigate and prosecute 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” and has the authority “to conduct appeals arising out of the matter being investigated and/or prosecuted.” 28 C.F.R. § 600.4(a). Those authorities are not at issue here.
Those authorities are not at issue here, but they are for the Flynn, Papadopoulos, Gates, and Van der Zwaan prosecutions, and for any obstruction the White House has been engaging in. But because it is relevant for the Gates and Van der Zwaan prosecutions, that mention should preempt any Manafort attempt to discredit their pleas for the way they expose him.
The filing includes a quotation from DOJ’s discussion of special counsels making it clear that it’s normal to investigate crimes that might lead someone to flip.
[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.”
That one is technically relevant here — one thing Mueller is doing with the Manafort prosecution (and successfully did with the Gates one) is to flip witnesses against Trump. But it also makes it clear that Mueller could do so more generally.
I’ll comment more on the memo tomorrow. But for now, understand this is a solid memo that puts the Manafort prosecution squarely on the same footing that the Libby one was.
Is the “collusion” reference an “eff you” to tRUmp??? sure seems that way
Answering my own question, the “colluding” reference is in Attachment C, which is redacted after the a/b that Marcy has provided above. It’s a long doc, so make sure you read it all, including the attachments.
Having read most of this, twice, I’m worried that this document will lead to further attacks on Rosenstein and Weissmann. Hannity is going to spend all week attacking these two
I haven’t read it yet, but truly appreciate the effort Marcy puts into it for our benefit. That said, Hannity doesn’t need a reason to go on attacks. In fact, Hannity seems to have dispensed with reason altogether.
Maybe another way of looking at it is that this shows just enough of what the AAG is doing — and shows that he’s doing it in a professional manner that is based on accepted precedent — to offer cover to the AAG?
I realize that it’s not exactly news around these parts, but the portions of this memo that are now made public provide the clearest message yet that Rosenstein is acting wholly appropriately, amid considerable political insanity. It shows that without needing to connect any dots.
Optimism seems like a stupid posture to take at a time like this, but it feels like this would make a Saturday Night Massacre Redux brutally toxic for both the White House and the Republican congressional caucus. If you’re a Republican rep in PA, MI, WI, OH, or any further blue state, the information released by this filing looks like ready-made cover to step off the Trump train, paint yourself as taking the high ground, and keep your seat.
I agree with your optimism. Like I said before, the longer the kochtapus repubs let this fool stay, the worse it is going to get for them. I will add warning to any kochtapus dems as well!
And Mr Mueller, my real Republican parents are smiling down on you. Thanks!
it’s already starting,
JFC, some of the comments under that article are a study in insanity, rage and delusions.
I somehow caught a short segment with Dan Abrams on TV (CNN?). It was a discussion about Sinclair outlet parrots on fake news propaganda, and his defense of anchors not fighting the powers-that-be is because it’s hard.
Ooof, I’m not necessarily against the argument Kalmbacher is trying to make at Dan Abrams joint, but he is….um….a bit out over his skis. These kinds of clauses are made in pleas where the main case is still ongoing so that the little people pleaing out early don’t become moles. And Kalmbacher is especially silly in making this argument because such clauses are superfluous in that there are FOIA exceptions that could and would be used to deny disclosure irrespective of the clause. The hyperbole about tyrannical Mueller is insane.
Presumably, the hyperbole is directed at an audience of one, like so much else in the media.
I got banned from the main site; proud of that – earned it. Any ‘good points’ are almost invariable occasional, largely accidental, and IAE incidental to the point of the enterprise: clickbait. It actually AIMS at being what you’d get if you draw your writers mostly from an inexhaustible pool of cheap replaceable budding flamethrowers with ultimate career ambitions to work for The Hill.
Hammity doing his Tokyo Rose is making the Nativists restless. As this psychodrama develops the pitchforks shine like a mackerel at midnight. Peril ahead. These Goomers will never see the handwriting.
I know that Rosenstein is the ultimate decider, but I assume there is some kind of structure in place at DOJ for reviewing what Mueller submits prior to an approval.
How extensive is the team on Rosenstein’s side? I’m wondering what kind of collateral damage on the careers of DOJ employees there would be in an attempt to discredit Rosenstein, along the lines of the damage to FBI employees that has happened as a result of attacks on Mueller.
Well, that will be that for the big Manafort motion. Buh bye.
Where there was All the President’s Men, now there’s All the Special Counsel’s Court Filings
Watergate v Trump Tower
Abuse of Power v Invasion of Space
Age of Secrets v Secrets of Aging
Blind Ambition v Brainless Lust
Breach of Faith v Beached Fail
The Company v The Apprentice
Deep Throat v Everything Leaks
The Final Days v The Final Daze
The Friends of Richard Nixon v
The Enablers of Donald Trump
The Great Cover-up v The Great Combover
How the Good Guys Finally Won v
Rise and Fall of the Turd Burger
Nightmare v Damage
The Nixon Defense v The Trump Diss
Nixon’s Secrets v Trump’s Outrages
The Nixon Tapes v The Trump Tweets
The Powers That Be v The Monies That Buy
Silent Coup v From Russia With Love
The Wars of Watergate v The Collusions of Trump Tower
Will v Tattoo
Hahaha! I love it, you are in rare form today.
The Asshat Fields vs the Coy McCoys
Boys in the (KKK) Hoods vs Men in Black
Good to see this included in the filing.
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
[Point is: Obstruction may be coming from other angles than the well-known players]
If Mueller were the navy ‘signaling’ via “flag” to the TrumpCo/sycophants & legal contortionists, it would be this one:
Meaning: “You are running into danger!”
Marcy, you could copy the flag and use it sometimes over one of these posts that fits this particular signal/message.
You are right to call attention to the different sig block but I think you are partly missing the significance. This filing is _on behalf_ of Mueller’s team although it also happens to be _by_ some of Mueller’s team. That is, the DOJ is filing this in the capacity of representing and defending Mueller’s authority (the way it would any client agency), not in the capacity of investigating and prosecuting people under Mueller’s grant of authority. The significance of that distinction might be very little practically speaking, especially when you have many of the same people working on it, but clearly the DOJ thinks it’s important to demarcate in what capacity this filing is being made.
What?? Really? Come on. You are “Former DOJ” and left this comment? Ahem…..
I’m old and cynical and have complete contempt for the GOP. From my perspective, the entire party is traitors, now more than ever. All the spew of the anti-commies over the years: Actually works better when applied to the GOP.
This may look the same as Libby, but if the Powers That Be want to, they’ll surely treat it as different.
Once Mueller’s done – by firing or by completion – will be a problem for the GOP when they refuse to act on whatever he’d done.
Thanks very much for your take(s) on the Manafort SC legitimacy filings.
Maybe Mueller has now shown Manafort they have him working the Republican Platform Ukraine plank at the direction of e.g., Kislyak as a first installment of the quid pro quo for Deripaska not to try to collect – one way or another…