Manafort Wants DOJ to Return Some of the Information Seized in His No-Knock Search

Paul Manafort has submitted two motions to suppress information collected pursuant to two warrants. The first, to suppress the fruits of a May 27, 2017 search of a storage facility in Alexandria, was submitted in timely fashion on April 6. The second, to suppress the fruits of the widely publicized no-knock search of his Alexandria condo on July 27, 2017, was submitted late, though Judge Amy Jackson Berman let him do so even though he only asked permission to do so hours before the deadline.

While I don’t think these motions, particularly as submitted, will succeed, I think they’re interesting because in addition to seeking to suppress evidence in the ConFraudUs prosecution he has already been charged with, appears to seek to suppress any evidence obtained relating to the election tampering conspiracy.

The storage unit search feeds the base but misrepresents the facts

For reasons I don’t understand, Manafort has argued these two motions in nested fashion. He argues the storage unit search was improper and collected data outside the scope of the warrant, meaning any fruit of that search should also be suppressed (though that may aim to suppress other searches not at issue here).

The storage unit search is one that online conspirators have talked a lot about, suggesting the search was done pursuant to FISA order, or in other ways done improperly. So by seeking to suppress this search, Manafort is doing what is expected of him by Trump’s frothy base.

That said, the motion itself makes a number of claims that the exhibits submitted to support the motion don’t support. The motion argues that:

  • The person who voluntarily let the FBI into the storage unit, Alexander Trusko, was a former employee (and may not have been acting voluntarily), and so no longer entitled entry to the storage unit
  • That person was otherwise not authorized to have access to the storage unit
  • The FBI took virtually everything in the storage unit

That’s not backed by the exhibits. For example, the affidavit notes that, while Trusko showed the FBI the storage facility was a former employee of Davis Manafort (the allegation in the motion), he was still an employee of Paul Manafort, just another company Manafort ran.

On May 26, 2017, your Affiant met with [redacted], a former employee of Davis Manafort Partners, and a current employee of Steam Mountain, LLC, which is a business currently operated by Paul Manafort. [redacted] advised that he is a salaried employee of Manafort’s company, and that he performs a variety of functions for Manafort and his companies as directed by Manafort.

The storage facility lease clearly shows Trusko to be the occupant, with Rick Gates listed as an alternate contact and Manafort just as an Authorized Access Person.

Manafort’s going to have a tough time arguing that the person on the lease is not a person with the authority to enter the facility.

Finally, the FBI agent who did the search counted “approximately 21 bankers’ boxes that could contain documents, as well as a five-drawer metal filing cabinet.” But the return of the search warrant appears to show just nine boxes of documents, meaning the FBI took just a fraction of what was in the storage unit.

While this application asks for records on the Podesta Group (but not, curiously, Vin Weber or his Mercury group, the other lobbying company Manafort got to work for the Party of Regions), it doesn’t ask for anything specifically related to the election conspiracy.

Even before you consider the fact that FBI got this warrant without hiding any of the details that Manafort claims makes the search suspect, those claims seem misleading at best. This motion is almost certainly going nowhere, except to feed the frothing conspiracists.

The condo search focuses on the Ukraine crimes but asks for June 9 meeting materials

I’m more interested in the motion to suppress the condo search and its fruits.

As a threshold matter, between May and July 2017, the scope of crimes being investigated mushroomed, to include both the fraudulent loans obtained during the election and afterwards, as well as foreign national contributions to an election, with a broad conspiracy charge built in.

Compare the list of crimes in the storage unit affidavit:

  • 31 USC 5314, 5322 (failure to file a report of foreign bank and financial amounts)
  • 22 USC 618 (Violation of FARA)
  • 26 USC 7206(a) (filing a false tax return)

With the list in the residence affidavit:

  • 31 USC 5314, 5322
  • 22 USC 611 et seq (a broader invocation of FARA)
  • 26 USC 7206
  • 18 USC 1014 (fraud in connection with the extension of credit)
  • 18 USC 1341, 1343, 1349 (mail fraud and conspiracy to commit mail fraud)
  • 18 USC 1956 and 1957 (money laundering)
  • 52 USC 30121 (foreign national contributions to an election)
  • 18 USC 371 and 372 (conspiracy to defraud the US, aiding and abetting, and attempt to commit such offenses)

So this motion to suppress would suppress both evidence used to prosecute Manafort in the EDVA case, as well as the eventual hack-and-leak conspiracy.

And in addition to records on Manafort, Gates’, and (another addition from the storage unit warrant), the warrant permits the seizure of records tied to the June 9 meeting and Manafort’s state of mind during all the enumerated crimes (but that bullet appears right after the June 9 meeting one).

It also includes an authorization to take anything relating to Manafort’s work for the foreign governments, including but not limited to the Ukrainians that have already been charged, which would seem to be a catchall that would cover any broader conspiracies with Russia.

This makes sense. The June 9 story broke in July 2017 based off documents that Jared Kushner and Manafort had provided to Congress in June — though I do wonder whether there were any records relating to the meeting in the storage unit.

To be fair, this motion is not much stronger than the first one. Manafort doesn’t even present as much reason to throw out this search as he did for the storage unit. He basically just argues the warrant is overbroad, agents exceeded the scope of it, and DOJ improperly has held on to things not covered by the scope of the warrant. He does claim the warrant doesn’t incorporate the affidavit that lays out what can be searched, which I don’t understand because the application does say to refer to the affidavit. Curiously, while in the aftermath of the search, stories reported that the search had improperly seized privileged materials, he doesn’t complain about that in this motion (the docketed materials make it clear that FBI separated out any potentially privileged materials).

That said, I think some of the claim that the warrant was overbroad will need a careful response.

Three specific complaints may suggest what Manafort’s really worried about

Amid the larger argument about overbroad search, Manafort says several things that I find of particular interest. For example, the motion complains that by asking for Manafort’s “state of mind” (either specifically as it relates to the June 9 meeting more broadly).

a warrant directing agents to seize all evidence of the subject’s “state of mind” does not restrict
the agent’s discretion at all. Indeed, the warrant may just as well have told agents to search for
and seize any evidence that the subject committed the subject offenses – all of which require
knowledge and intent.

It seems DOJ may have more specific concerns about Manafort’s state of mind when dealing with Russians, because it goes to his many mixed motivations tying to the election.

Then, Manafort argues, curiously, that the FBI took devices that could not conceivably include evidence like some iPods.

For example, the search warrant inventory of electronic devices seized or imaged includes things such as an Apple iPod music device and some Apple iPod Touch music and video devices.

Except that’s not right: you can use Signal on iPods, so these might have stored communication. Which would be precisely the kind of thing that would be of most interest: devices that could be used for encrypted comms that would not show up on cell records.

Finally, Manafort complains, at length, that DOJ hasn’t given any of this back.

To date, the government has not represented that the materials seized were subject to any process or procedure to insure the government only retained materials within the scope of the search warrant. The government has only represented that the materials have been subject to a privilege review. The government is required to review seized materials and “identify and return those materials not covered by the warrant.”

They do so citing longer periods of review, so it’s unlikely this complaint will go anywhere.

But as I’ve said, Manafort has a great incentive, in his likely futile suppression motions, to try to force DOJ to cough up more information about the case in chief. And by demanding that DOJ start giving stuff back, he may force them to show what they consider valuable or at least still can’t make sense of.

Ultimately, this suppression motion may be more about trying to prevent the government from keeping stuff supporting even more charges while it pursues the two classes of charged crimes and the soon to be charged crimes named in the affidavit.

bmaz was proved fucking right

Finally, just to prove that bmaz was right all along, I’ll note that this search warrant permits the FBI to take things relating to Manafort’s wife Kathleen.

bmaz has long been wondering why DOJ didn’t also charge her, which might provide more leverage to get Manafort to flip than charging Gates would. References in the affidavit to them reorganizing their lives suggests Kathleen might not have been as persuasive as she once would have been.

34 replies
  1. Rayne says:

    Wondering if these motions are weak because their intent is not just to feed the mouth-foamy base but to communicate to others apart from Manafort’s lawyers?

    I find the iPod bit very specific and very interesting.

    • earlofhuntingdon says:

      It’s almost a signal to stop using them and similar devices for illicit purposes. (Never mind getting rid of them.)  Like Al Capone discovering after he was in Alcatraz that the feds could tap his phone.

  2. Bob Conyers says:

    As far as the iPods, it’s trivial to stash text files on them, so I’m not sure why they would make that argument except to make Mueller’s team waste some time responding (or maybe pad a bill). It’s like trying to claim the FBI shouldn’t have seized a box because it was only 8×10 inches and therefore couldn’t contain any paper.

    (That’s setting aside the issue that Manafort is so technologically incompetent he couldn’t edit a PDF file as a part of his bank fraud, but of course someone could have helped him move text files onto an iPod, just as Gates helped him edit the PDF.).

    • Rayne says:

      Manafort may have needed Gates to be his PDF bitch but that doesn’t necessarily mean an iPod is beyond Manafort’s meager tech skills. It was iPod+iTunes ease of use that made them so appealing to a wide range of users who weren’t tech-proficient. I am wondering if this was not only an encrypted comms tool as Marcy suggested but a means for remote syncing and sharing other information.

  3. Trip says:

    What does “reorganizing their lives” mean? Is that rich-people speak for a separation or something?

    • Michelle says:

      I took it as a reference to some form of separation or divorce, yeah. From the affidavit:

      Kathleen Manafort told him that she and Manafort were reorganizing their lives and as part of that process were getting documents ready for meetings with their attorney.

      • Avattoir says:

        Recall that a Manafort, with all that salad from working over Ukraine & (maybe fronted) from Deripaska, acquired a mistress – an “expensive” one, was the adjective, the reporter apparently assuming that may not be the default for many readers.

        • earlofhuntingdon says:

          This is DC.  Expensive is routine.  Expensive enough to be remarkable would put her in another league altogether.

          One thing I’ve wondered about is what was Manafort’s percentage for all that laundering?  Soap and hot water and dry heat cost money.

           

      • SpaceLifeForm says:

        Agree.

        And she is leaving with as many tangible assets as she can. You know, since he can’t make bail.

        May as well get the fridge and some furniture while you can.

        • Trip says:

          I guess this is a Madoff scheme, giving little pieces of assets to the wife before they’re all gone, as a consolation prize for living with a scumbag all these years.

      • Palli says:

        “getting organized…for meetings with their attorney” (singular)

        Preparing for the prison separation? Clarifying which assets will provide healthy monthly income for Kathleen or possible rapid divestment?

        Which tax havens have no extradition treaties?

  4. earlofhuntingdon says:

    Nicely done.

    Re bmaz’s being proved fucking right, I would add that parking laundered assets or their proceeds with relatives is a routine tactic in money laundering and tax fraud. Knowingly allowing that, even if not financially benefiting from the conduct, would seriously implicate the relative. The FBI would have been negligent had they had not pursued the possibility. Congrats to you both.

    • bmaz says:

      Things were not merely parked from what I can discern, they were married, filing jointly and knowingly in a lot of it together by definition. This is why I have never understood how Kathleen is not under the Fed thumb. This is easy pickings. Again, why I don’t get how it has not happened. I actually thought Kathleen was Defendant 2 in the original Manafort indictment. Some other people did too.

      • Frank Probst says:

        I’m still wondering if she could convincingly use the “ditzy spouse” defense, which is why they didn’t go after her initially.  Spousal privilege prevents her from testifying against her husband, right?  So it makes sense to me that Round 1 of indictments would be just Paul Manafort and Gates, with Kathleen as an ace in the hole.  Now that Gates has flipped, Paul Manafort is totally f*cked.  He can’t come up with the money for bail.  And I’m not sure what benefit there would be to indict Kathleen at this point.

        You’re assuming Paul Manafort would cut a deal to protect his wife, but the guy seems like a pure sociopath, and I think their marriage was going through a bumpy patch a few years ago, and we really don’t know where it’s at right now.  I’m not convinced that’s she’s as much leverage as she would be against a normal human being.  I think Paul Manafort would act to save his own ass before he saved his wife’s.  And the optics of indicting her would be awful.  She may be low-hanging fruit, but indicting family members looks heavy-handed to people who aren’t following things closely.  Fox News would have a field day with it.  So it makes sense to keep that card on the table, but it’s the last one you want to play.

        All that being said, @bmaz was clearly correct about Kathleen being “in play”, which I was doubtful of, so I’ll be over here eating my crow-flavored oatmeal for breakfast.

  5. earlofhuntingdon says:

    I wonder if Access Hollywood materials might relate to possible illegal election contributions to Donald or to alleged illegal conduct or a pattern of such conduct by Michael Cohen.

    I imagine the warrant(s) alleged at least one possible crime related to this material for which they had probable cause that convinced a federal judge.

    • greengiant says:

      “according to a person familiar with the investigation”   Think the access Hollywood story is from team Trump/Cohen familiar with the investigation instead of anyone in DOJ or FBI.  Typical WaPo/NYtimes propaganda laundering because they can’t burn their sources.

    • Peterr says:

      The very specific temporal connection between the revelation of the Access Hollywood tape and the dump of the Podesta emails is a big red flag to me.

      Within two hours of the Access Hollywood video breaking and the intelligence community warning about Russian election-meddling, WikiLeaks published a trove of emails stolen from Clinton campaign manager John Podesta.

      This episode, to me, is one of the most obvious in which someone used illegally obtained information to publicly act to support Trump, in an effort to bury the Access Hollywood story. Trump’s rise in the polls was not just halted but reversed, and various GOP leaders were telling members of Congress they should not feel as if they had to reflexively back the GOP nominee if the AH tape proved too damaging in their own races. Trump desperately needed something to massively change the subject, and the release of the Podesta emails was someone’s attempt to do just that.

      It was fast, which makes it more likely that someone acted without due tradecraft to hide their tracks. Or at least that’s what Team Mueller is hoping. They are looking for emails or other communications that connect these two events politically – emails born out of fear and desperation. If they found an email to Russians and/or Wikileaks saying something along the lines of “Now would be a REALLY good time to dump those emails” or “What could you do for us to change the subject from “grab ’em by the pussy”?” that would be a huge win for Mueller.

      When events are spiraling out of control, like when the AH tape came out, that’s when conspiracies expose themselves.

      • Frank Probst says:

        Assuming your timeline is correct (not doubting it, but not double-checking it, either), this would make the most sense of anything I’ve seen so far.  But I STILL can’t see this as a basis for so many people signing off on this.  “We might get lucky!” doesn’t get you the Deputy AG, the USA for the SDNY, and a federal judge/magistrate to sign off on a three or four Monday morning search warrants of the President’s lawyer.  I certainly think Stormy Daniels, the National Enquirer, and the Access Hollywood tape could be PART of the warrants, but I don’t think any of those things could be the main reason everyone was on board with this.  They would have to KNOW that e-mails like the ones you’re proposing existed, and they would have to KNOW that Michael Cohen was the one who had them (and very likely STILL had them).

        • Peterr says:

          Absolutely. Those are the bread crumbs that point back to the conspiracy. They have to have something else to provide the “probable cause.” And as I said on an earlier thread, that “something else” may have been on the DVD that Avenatti used to warn Michael Cohen about.

          If Avenatti had evidence that got into some of Cohen’s “fix it” activities on Trump’s behalf, that could have been enough to get the warrant. If so, and if Cohen knew of or was the cutout with Moscow/Wikileaks, those warrants would really make Manafort nervous if other documents there could expose his particular role.

    • SpaceLifeForm says:

      Good point, but…

      With the FB tracking, (and other players), redacting address and ZIP+4 is useless if the target had/has phone and/or internet.

      The redaction only hides from general public, not IC.

  6. SpaceLifeForm says:

    They went through every doc before they left with some of it. Just like ICO did at Cambridge Analytica/SCL offices.
    They knew *exactly* what they were looking for.
    No need to haul away non-evidence.

    “Finally, the FBI agent who did the search counted “approximately 21 bankers’ boxes that could contain documents, as well as a five-drawer metal filing cabinet.” But the return of the search warrant appears to show just nine boxes of documents, meaning the FBI took just a fraction of what was in the storage unit.”

  7. Avattoir says:

    bmaz, being particularly experienced in defending criminal causes before the courts, assumed, with notable prudence, the government to be ruthless.

  8. dc says:

    Why isn’t Kathleen just a “Trump” card?
    By holding charges in abeyance, isn’t this diluting the pardon power? If Paul is pardoned at some point, blowing the wad, Kathleen could remain at risk in a phase of the proceedings in which a pardon is more expensive politically or maybe her would be benefactor is without pardon power….?

  9. Desider says:

    Note to Manafort – once a cat’s been in a bag and let out, it’s especially loathe to be put back in. Not that I’m working from experience or anything…
    Oh, and the “I need my stuff back from storage because it was so important I tossed it out in storage” is an interesting take on a persuasive argument. Just wishing someone would confiscate my lode of old laptops, cell phones and tablets, but that’s just me.

  10. Frank Probst says:

    I didn’t realize that Trusko was the one whose name was on the lease until now.  I just assumed it would be some LLC.

    As to the theory that Manafort is basically setting piles of money on fire just to keep throwing meat to the right-wing media, I’m just not seeing it.  You don’t need legal filings to do that.  You just need to be able to leak your way around the gag order.  Or they could just go with, “Poor Paul is still under house arrest even though he’s paid his bail, because an Obama-appointed judge is being mean to him.”

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