Did Mueller’s Team Decide They No Longer Need Manafort to Flip?

One detail of the attacks TS Ellis made on Mueller’s team on Friday has gotten a lot of attention: his insinuation that Mueller’s team was only charging Manafort with bank fraud and tax evasion to get him to flip on Trump.

THE COURT: Apparently, if I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump. That seems to me to be obvious because they all long predate any contact or any affiliation of this defendant with the campaign. So I don’t see what relation this indictment has with anything the special prosecutor is authorized to investigate.

It looks to me instead that what is happening is that this investigation was underway. It had something. The special prosecutor took it, got indictments, and then in a time-honored practice which I’m fully familiar with — it exists largely in the drug area. If you get somebody in a conspiracy and get something against them, you can then tighten the screws, and they will begin to provide information in what you’re really interested in. That seems to me to be what is happening here. I’m not saying it’s illegitimate, but I think we ought to be very clear about these facts and what is happening.


THE COURT: That’s right, but your argument says, Even though the investigation was really done by the Justice Department, handed to you, and then you’re now using it, as I indicated before, as a means of persuading Mr. Manafort to provide information.

It’s vernacular by the way. I’ve been here a long time. The vernacular is to sing. That’s what prosecutors use, but what you’ve got to be careful of is they may not just sing. They may also compose.


THE COURT: It factually did not arise from the investigation. Now, saying it could have arised under it is another matter, but factually, it’s very clear. This was an ongoing investigation. You all got it from the Department of Justice. You’re pursuing it. Now I had speculated about why you’re really interested in it in this case. You don’t really care about Mr. Manafort’s bank fraud. Well, the government does. You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.

In spite of Ellis’ repeated suggestion that Mueller was just trying to get Manafort to flip and that that might not be illegitimate, Michael Dreeben never took Ellis’ bait, each time returning to the government’s argument that the indictment was clearly authorized by Rod Rosenstein’s  initial appointment memo, and in any case Manafort can’t challenge his indictment based off whether Mueller adhered to internal DOJ regulations.

THE COURT: Where am I wrong in that regard?

MR. DREEBEN: The issue, I think, before you is whether Mr. Manafort can dismiss the indictment based on his claim.


In any event, your point, if I can distill it to its essence, is that this indictment can be traced to the authority the special prosecutor was given in the May and August letters. That, as far as you’re concerned, is the beginning and end of the matter.

MR. DREEBEN: Yes, Your Honor, it is the beginning and almost the end. And this is my last point, I promise.

THE COURT: All right.

MR. DREEBEN: The special counsel regulations that my friend is relying on are internal DOJ regulations. He referred to them as if they’re a statute. I want to be clear. They are not enacted by Congress. They are internal regulations of the Department of Justice.

Dreeben’s refusal to engage is all the more striking given one of the differences between the 45-page government response dated April 2 for Manafort’s DC challenge and the 30-page government response dated April 10 for Manafort’s EDVA challenge.

The two briefs are very similar and in some passages verbatim or nearly so. The DC version has more discussion of the Acting Attorney General’s statutory authority to appoint a Special Counsel — language like this:

Finally, Manafort’s remedial arguments lack merit. The Acting Attorney General had, and exercised, statutory authority to appoint a Special Counsel here, see 28 U.S.C. §§ 509, 510, 515, and the Special Counsel accordingly has authority to represent the United States in this prosecution. None of the authorities Manafort cites justifies dismissing an indictment signed by a duly appointed Department of Justice prosecutor based on an asserted regulatory violation, and none calls into question the jurisdiction of this Court.

It includes a longer discussion about how a Special Counsel differs from a Ken Starr type Independent Counsel. It cites some DC-specific precedents. And in general, the discussion in the DC brief is more extensive than the EDVA.

Generally, the differences are probably explained by differing page limits in DC and EDVA.

But along the way, an interesting passage I noted here got dropped: in addition to the general language about a special counsel appointment including the investigation of obstruction of that investigation, the DC brief noted the underlying discussion on Special Counsel regulations envisions the prosecution of people if “otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

[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.” 64 Fed. Reg. at 37,039. “Rather than leaving the issue to argument and misunderstanding as to whether the new matters are included within a vague category of ‘related matters,’ the regulations clarify that the decision as to which component would handle such new matters would be made by the Attorney General.” Id.9

9 The allusion to “related matters” refers to the Independent Counsel Act’s provision that the independent counsel’s jurisdiction shall include “all matters related to” the subject of the appointment (28 U.S.C. § 593(b)(3)), which prompted the D.C. Circuit to observe that “the scope of a special prosecutor’s investigatory jurisdiction can be both wide in perimeter and fuzzy at the borders.” United States v. Wilson, 26 F.3d 142, 148 (D.C. Cir.), cert. denied, 514 U.S. 1051 (1995).

This exclusion, too, likely arises from page limits (and its exclusion may explain why Dreeben didn’t point to it in Friday’s argument).

But given Ellis’ focus on it, I find the exclusion notable.

Again, it’s most likely this is just a decision dictated by page limits. But it’s possible that Mueller’s team believed this language less important to include in any decisions issued in EDVA than DC. For example, the existing cooperation agreements were all signed in DC, even where (with George Papadopoulos and Richard Pinedo) at least some of the crimes occurred elsewhere. If Manafort ever flips, that plea agreement will presumably go through DC as well.

Or maybe, given Rick Gates’ cooperation, Mueller’s team has decided they can proceed without Manafort flipping, and instead send him to prison the same way Al Capone went: with tax charges rather than the most heinous crimes.

40 replies
  1. SpaceLifeForm says:

    Ellis, right off the bat, referred to Special Prosecutor.  They do not exist at Federal Level.  Have not since 1999.

    One may think this Judge would know that.

    Maybe, it was just a mistake, and Weissman immediately used the correct terminology.

    But after 18 years, you would think he would know.

    • bmaz says:

      FWIW, “special prosecutor” is kind of a catchall for both “independent counsels” under the old independent counsel law prior to 1999 and “special counsels” since. Apparently Ellis was conflating them in pre-argument discussion, and Dreeben went to some length to make sure Ellis understood fully the differentiation after hearing Ellis use the catchall term in oral argument.

      Further muddying this area, there actually are occasionally special prosecutors assigned by the DOJ to particular cases and/or issues that are NOT officially “special counsels”. For instance, think John Durham in the torture tapes and torture case matter. He was not a “special counsel”, but was a special prosecutor. That concept would be more clear if was termed “specially assigned prosecutor”, but it is what it is. Bottom line, think Dreeben right to make sure the record was clear, but doubt will end up being of any moment in whatever decision Ellis issues. At least I sure hope not.

  2. bmaz says:

    Or maybe, given Rick Gates’ cooperation, Mueller’s team has decided they can proceed without Manafort flipping, and instead send him to prison the same way Al Capone went: with tax charges rather than the most heinous crimes.

    Maybe. Could just be that Dreeben saw no upside in emphasizing that as it really is irrelevant to defeating Manafort’s motion (even Ellis noted it is permissible and a regular feature of prosecutions) and discussion of it feeds right into the Trumpian narrative.

  3. Frank Probst says:

    “I’m not saying it’s illegitimate, but I think we ought to be very clear about these facts and what is happening.”

    It’s funny you brought up Al Capone, because when I read this statement, I was imagining this judge saying, “We all know the real reason we’re here is not because Al Capone cheated on his taxes.”  He’s right, but as he himself says, that doesn’t make the charges illegitimate.

    As to whether or not they need Manafort to flip, I’ve been wondering that since Rick Gates flipped.  Gates has been skating on VERY thin ice since he got busted for lying during his proffer.  If he’s “forgotten” ANYTHING of relevance, I think they’re going to absolutely drop the hammer on him.

  4. Avattoir says:

    FWIW, I think there are things Manafort did and said, with Trump and with other in towers, that Gates at most knows about in a way that exposes Manafort to criminal convictions, yet Gates was never directly involved in or present for in any way that so exposes various other persons of particular interest to the OSC.

    So, ‘need’ being such a contextual and relative term, I don’t know about Mueller but if it were me in that spot, I’d absolutely want Manafort’s cooperation in answering some skill-testing questions, especially those on which I’ve built up files thick with independent corroboration.

    • Peterr says:

      Yes, it’s always nicer to have a minion’s cooperation, as opposed to his/her defiance. But the real ‘need’ in such cases is always in the other direction, which is what the prosecution tries to convey to folks in Manafort’s position . . .

      Mr. Manafort, not to put to fine a point on it, but you’ve been hung out to dry. You’re toxic to President Trump, and we are reasonably sure that there are various Ukrainian and Russian people of importance who see you as so toxic they would like to introduce toxic substances into your body. You’re familiar with Alexander Litvenenko and Sergei Skripal? Would it surprise you to learn that you may be on a list of . . . how to put this delicately? . . . people whose health is precarious?

      Mr. Manafort, you worked a great deal with General Michael Flynn. You realize he’s working with us right now, don’t you? He’s describing your work — your very high quality work — in great and documentable detail. You worked with Rick Gates for many years, and now he’s working with us, too. He’s got lots of wonderful stories to tell, and we’re really enjoying the detailed descriptions he offers about your gift for grift. George Papadopoulus is a newbie in your world, but he’s now working for us as well, painting a vivid picture of your work even if he doesn’t understand how vivid a picture it is.

      Yes, Paul — can I call you Paul? — you been left to twist in the wind. You’re a prisoner in your own home, enduring the indignity of the ankle bracelet, while Mr. Trump, Jared, Don Jr, and Eric are sitting happily in their luxurious offices, free to go where they wish, when they wish, with whomever they wish to go. Fancy lunches, afternoon cocktails, or late-night social engagements — they can do it all, while you wash around your bracelet in the shower.

      Let’s face it: you need a friend. You need someone who can protect you from the Russians. You need someone who can help you minimize any time in prison. You need someone who can speak on your behalf, when all the evidence of your behavior lands in front of a judge.

      You. Need. Me.

      You don’t need Donald Trump. You don’t need Rudy Giuliani. You don’t need Eric or Don Jr. or Ivanka or Jared.

      You. Need. Me.

      Or words to that effect.


      • Avattoir says:

        I’ve posted as much myself, several times, and consistently. But the issue here, per the question in Fearless Leader’s title, is “need”, i.e. objectively necessary factor or ‘necessary’ in some emotional or idealized way, as with the concept underlying Nothung – not, or not so much, whether such is likely to end up being frustrated or requited.

  5. matt says:

    I’d like to remind EW that @Jill was the first to post the link to the Ellis testimony.   For which BMAZ ridiculed as trolling.  Marcy is doing intellectual cartwheels analyzing these events- appreciated, thank you- but Jesus, BMAZ can you take your head out our your ass for a minute to recant your belligerent name calling an account of “her” timely and pertinent post?

    • bmaz says:

      Listen you jerk, I objected to Jill’s version because it was merely a mule for nut job commentary. And that was what she clearly intended. That is different than a clean transcript. You already had a war being a jerk with Rayne, now you think you are going to take on another editor.. Keep it up. Better yet, mind your own business and quit talking out of both sides of your mouth to promote the Fox News disinformation.

    • Peterr says:

      I’d like to remind you that Jill has been trollish long before Judge Ellis made his comments from the bench.

      Once upon a time, there was a now-departed friend-of-the-blog who went by the handle of Freepatriot (known as Freep for short), who had far less patience for trollishness than bmaz. This place has long been very welcoming of folks who engage the posters and other commenters on the merits, even and especially toward those who make the poster change their mind on something they’ve said. That’s one of the things that sets emptywheel.net apart from many places that analyze national security issues. That said, this place is also much less welcoming toward those who argue in bad faith, because the issues themselves are tough enough to wrestle with on the merits without trollish comments derailing things.

      In my book, Jill has been verging on the edge on the trollish end of the scale for quite a while.

      • Greenhouse says:

        Wow, didn’t know that about Freepatriot. RIP Freep. Remember Jody? Jody and Jill. Tag team.

        • bmaz says:

          Sadly, yes, that appears to be so as to Freep.

          We have lost so many incredible voices here over the years.

    • earlofhuntingdon says:

      “Jill” is not a friend to this blog.  Its commentary is disinformation, a little truth, a lot of hogwash, which makes understanding these issues all the harder.

      • Avattoir says:

        “jill” … “matt” … such distinction in name choices. Coincidence? Unlikely that’s all there is to it, particularly since almost no other reader / comment makers go this way, while sharing the same foxy outlook and with each being so quick to leap in to echo, espouse, defend or proselytize the posted views of the other.

        • aubrey mcfate says:

          “jill” is both a mule and a troll. Can we call her a “moll”? Like the gangsters’ kind? Along with “matt”.

            • Avattoir says:

              Oh, it’s very homey for the well-intentioned – tho I can imagine it might come across differently for the disingenuous, winger trolls, and foreign bots.

      • Greenhouse says:

        Agreed EOH. I was comparing Jill to resident troll “Jody” back in the days of old, pre-emptywheel.net. Freep relished going into battle with him/her.

    • harpie says:

      1] I’d like to remind EW that @Jill was the first to post the link to the Ellis testimony.   
      Why? @ Jill linked to the full @justsecurity transcript 2-1/2 hours after it was posted by Just Security, and 2 hours-15 minutes after Marcy Retweeted and commented on it.
      2] For which BMAZ ridiculed as trolling. 
      No. That was to Jill’s link to a partial transcript and commentary from @Technofog 
      [emptywheel.net Blog Time=Eastern Time; Twitter is on West Coast time]
      May 5, 2018
      *1:47 pm Jill says: “Thread by @Techno_Fog regarding the May 4 transcript from the U.S. vs. Paul Manafort”
      *2:38 pm bmaz responds to Jill: “Well, that is certainly some disingenuous “foggish” bullshit surrounding a transcript. Is it humanly possible for you to add anything here but trollish crap?”
      *3:00 pm matt says: “Eh? Are you calling Judge Ellis a troll… pushing foggish, disingenuous bullshit? Those red blocks on the transcript are his words.”
      *4:58 pm [1:58 PM] @just_security tweets that it has published full transcript
      *5:07 pm [2:07 PM] Marcy retweets and comments on transcript  
      *7:24 pm Jill links to full transcript from Just Security
      May 6, 2018
      *10:54 am Jill posts [comment that matt says “made no sense”]
      *1:16 pm matt responds to “@Jill […] I tried, but could not figure out what your last post was trying to convey […]”
      *1:52 pm matt says [to bmaz]: I agreed with your assessment of @Jill’s 10:54 post- it made no sense.  My “umbrage” related to the Judge Ellis opinion/transcript which was news yesterday and was a valid discussion in the Manafort case- not trolling or fogish bullshit as you stated. […]
      *10:19 pm matt’s comment on this new post, that I am now responding to.

  6. Trip says:

    Marcy, I’m not sure where to put this, but my hope is that you might cover it under a separate article or thread:
    I’m wondering aloud about the Dershowitz/Bolton connection to this, and KUSHNER, especially Charles. Look back at the Golan Cipel/Kushner connection and Kushner’s history of blackmail of his bro-inlaw. Dershowitz has a history of being a lobbyist for Israel, and has connections with Gatestone, (along with the Mercers), who make fake news about Muslims in Europe. Bolton, well, that speaks for itself, doesn’t it? Unbelievable that this task was undertaken, not during the campaign, but while Trump is a sitting president.

    Black Cube—a firm that was also employed by Harvey Weinstein and that offers its clients access to operatives from “Israel’s élite military and governmental intelligence units,” including the Mossad.
    Rhodes said that the campaign represented a troubling situation in which public servants were being targeted for their work in government. “This just eviscerates any norm of how governments should operate or treat their predecessors and their families,” he said. “It crosses a dangerous line.”
    Aides to Donald Trump, the US president, hired an Israeli private intelligence agency to orchestrate a “dirty ops” campaign against key individuals from the Obama administration who helped negotiate the Iran nuclear deal, the Observer can reveal…People in the Trump camp contacted private investigators in May last year to “get dirt” on Ben Rhodes, who had been one of Barack Obama’s top national security advisers, and Colin Kahl, deputy assistant to Obama, as part of an elaborate attempt to discredit the deal…Jack Straw, who as foreign secretary was involved in earlier efforts to restrict Iranian weapons, said: “These are extraordinary and appalling allegations but which also illustrate a high level of desperation by Trump and [the Israeli prime minister] Benjamin Netanyahu, not so much to discredit the deal but to undermine those around it.”

    ****I just noticed that you linked a thread on twitter, off to read it.

    • mac says:


      I’ve long suspected Dershowitz of being susceptible to blackmail. The connection between him, Trump, & Jeffery Epstein is one basis but I’m sure there are others. Whether its Cohen’s tactics or the newest BlackCube scandal, Trump is not below blackmailing people.

      Buzzfeed even has sources Trump used to listened in on phones @ Mar-a-lago. Who knows what information he gained from those convos. https://www.buzzfeed.com/aramroston/sources-donald-trump-listened-in-on-phone-lines-at-mar-a-lag

      And I’m not pushing that narrative because he’s defending Trump. He defended Nazis and stayed consistent with his legal arguments. When he started defending Trump he has had to twist, bend, and sometimes contradict what he has preached his entire legal career advocating civil liberties. When a man who has been pretty consistent his entire career deviates it sends alarm bells off.

      Even his friend Jeffrey Toobin has questioned it https://www.washingtonpost.com/news/morning-mix/wp/2018/03/22/jeffrey-toobin-to-his-former-professor-alan-dershowitz-whats-happened-to-you

      “How has this come about that, in every situation over the past year, you have been carrying water for Donald Trump?” Toobin said later in the show. “This is not who you used to be, and you are doing this over and over again in situations that are just obviously rife with conflict of interest. And it’s just, like, what’s happened to you?”


      • Trip says:

        I suppose that’s a possibility. But somewhere along the line, he got very pissed off at Obama in re to Israel. There were articles on Israeli News sites where Dershowitz “demanded” specific policy from the president in that regard and felt Obama broke some kind of promise. I believe he has dual citizenship, but it would appear that his Zionist-leaning towards Israel takes priority over all else. I don’t understand how he isn’t signed up as a lobbyist, but that’s the way it is. Look up how insane Gatestone is. Then you begin to recognize how extremist/radical it is; very hard-right. Obama had good reason not to like Netanyahu.

  7. pseudonymous in nc says:

    One wild card in this is Deripaska. Mueller’s indictments against Manafort come with confiscation / forfeiture penalties that would gladly take the rings from his fingers and the gold crowns from his teeth; presumably some form of cooperation would leave him and his family with a pot to piss in. At the same time, Deripaska wants to be made whole with interest once Mueller is done with Manafort and Gates. I’m not sure how that shakes out.

    • bmaz says:

      Keep in mind that, despite all the caterwauling recently, if Mueller really wanted to leverage to the max, his shop would indict Manafort’s wife, Kathleen. She is quite ripe for the taking in the greater scheme of Manafort charges.

          • Trip says:

            Of course you’re right. But we’ve had this discussion before: How much Manafort would be moved by his wife being in jeopardy, how much he cares what his kids might think, or whether he has ice water in his veins and just wouldn’t give a crap regardless. I have no idea the over/under.

            • bmaz says:

              Me either. But noting the way I have seen conspiracy cases prosecuted before when there was jurisdiction (and that is clear as to Kathleen) and maximum leverage is desired. She is not a foreign national spouse out of the country and putative jurisdiction, she is right there.

              Are the screws being turned on Manafort? Yes. Was Judge Ellis wrong to observe that? No. Was he right that such is not only legal, but common? Yes. The screws could actually be turning harder. To my eye, the Mueller shop made a tactical mistake in not indicting Kathleen at the same time as Gates.

            • mac says:

              After reading through all the texts & emails of Manafort’s, I’m sure Mueller will have a pretty good idea of what heartstrings to pull, if any.

  8. Trip says:

    Wolf Blitzer was actually just BLATANTLY advocating for Haspel. Paraphrased, “She’s qualified and tough on terrorists, imagine that. And some Democrats don’t want her confirmed”. What a POS.

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