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The Manafort Lying Cards I’d Show if I Were Playing Presidential Pardon Poker

One detail from Paul Manafort’s status hearing yesterday did not surprise me: Andrew Weissmann said he was “ready to go immediately with his filing of details on Manafort’s alleged breach” of his plea agreement.  (Judge Amy Berman Jackson gave him a week, until December 7, to do so).

Weissmann plays coy about next steps

One detail surprised me a bit: Weissmann claimed the government hasn’t decided whether they’ll further charge Manafort.

Jackson asked Weissmann if the government planned to bring more charges against Manafort after noting that the report by prosecutors earlier this week repeatedly used the word “crimes” in describing new allegations against Manafort.

The “report seems to make a point with its vocabulary,” Jackson said.

Weissmann said they hadn’t made a decision yet, but that they did believe Manafort’s conduct would be relevant at sentencing on the charges he already pleaded guilty to.

It’s not really clear from the reporting precisely what the government would charge him with, either: either the hung charges from EDVA, those that had been dropped in DC, or something else.

I’m spitballing, of course, but the two details together suggest that while Mueller has a very specific story to tell about Manafort ready to go, they haven’t decided where to go once they tell that story — whether they plan to pressure him some more to provide evidence on the things he has lied about, or perhaps charge him in the case in chief. We’re not, then, getting the full Mueller report, but I expect we’ll get some fairly interesting accusations and — given past practice from this team — some primary evidence to back up those claims. Further, given Kevin Downing’s claim to be mystified about the substance of Manafort’s lies, I suspect the Manafort (and Trump) team will get specifics about what Mueller knows that they’re not yet aware of.

Mueller’s slow reveal

When they’ve laid out such details in the past, the Mueller team has significantly advanced the long slow process of getting Manafort to describe what really happened in 2016. Early on, they used a redlined copy of an op-ed Manafort did with Konstantin Kilimnik to argue that Manafort had violated the gag in the case; while revealing that op-ed didn’t elicit sanctions on Manafort, it put Manafort in a weaker spot with ABJ. It also may have been how Manafort learned that the government had (probably in mid-August 2017, so in the wake of the raid on his condo) seized the content of the email account he used to communicate with Kilimnik.

Then, for months, the government let Manafort submit one after another attempt to make bail. And only when he had finally done so, they moved to revoke bail by slapping on two additional obstruction charges. To substantiate those charges (in yet another speaking indictment), they not only revealed that Manafort and Kilimnik had tried to convince witnesses to lie about past work with Manafort, but in the process they revealed they had collected and parallel constructed both men’s WhatsApp and Telegram chats (and had, presumably, parallel constructed Manafort’s communications with Kiliminik going back over two years, importantly for our purposes, including the entire time period Manafort worked on Trump’s campaign).

Given all the discussion Friday about further indictments, it’s instructive that rather than just submitting a motion to revoke bail last June, the government had the grand jury indict those two new charges, with the effect that they didn’t have to call the Hapsburg witnesses publicly to describe the attempts to suborn perjury.

I’m not saying it will happen again. But it could.

In any case, that move had the result of getting Manafort thrown in the pokey (he got put in a nice one, at that point), adding pressure to flip.

The next month, as Manafort made an ill-considered attempt to move his trial to Roanoke, Judge TS Ellis instead moved him to the crummier Alexandria jail. In fighting both those moves, the government revealed several new details about how they were collecting his ongoing communications, both that they had heard him say damning things on a call to his spouse, but also that they heard him explaining that “he reads and composes emails on a second laptop that is shuttled in and out of the facility by his team.”

To sum up, thus far: over the course of the 400 days since Manafort was first indicted, the government has made Manafort disclose everything he was willing to put up for bail (that is, the liquid and legal stuff), while repeatedly providing hints about how they continued to thwart his counter-surveillance (and shitty opsec) methods, while providing mere snippets about what they were learning as a result. Meanwhile he has been sitting in increasingly shitty jail cells for over five months.

And now the government has a set of accusations about his lies all wrapped up with a bow, or maybe they’ll just roll out another indictment.

If we’re playing another round of poker

As I noted above, when we were at this stage in June, the government just indicted as a way of making it far easier for ABJ to revoke bail. Here, getting a grand jury to agree they had probable cause that Manafort lied to the FBI would even further surpass the good faith standard Mueller needs to deem Manafort in violation of his plea deal.

But let’s assume, for the moment, that they’re not going to do that, that they’re going to submit a declaration laying out Manafort’s lies. What lies would Mueller disclose to ratchet up the pressure on Manafort more?

It seems there are several potential lies that would continue to wear away at Manafort’s efforts to protect Trump.

Kilimnik on a boat

A year ago, Mueller made clear he knew what Manafort was clandestinely up to with Kilimnik. In June, Mueller made clear he knew what Manafort was clandestinely up to with Kilimnik. Just weeks before Manafort purportedly flipped, Mueller made it clear, with the plea deal of Sam Patten, he knew what Kiliminik was up to.

Are you sensing a theme here?

And since Mueller deemed Manafort in violation of his plea agreement, WSJ has reported that one thing Manafort lied about was Konstantin Kilimnik. That includes whether Manafort — at a time he was dead broke and setting off on a crime way to hide that fact and his ties to Russia — hopped on a yacht with Tom Barrack (the guy who got him the job in the first place) and Kilimnik.

He has questioned witnesses about a boat trip that Mr. Manafort took with Tom Barrack, a longtime friend of Mr. Trump, after Mr. Manafort was ousted from the Trump campaign in August 2016, say people familiar with the matter. Witnesses believed investigators were seeking to determine whether Mr. Manafort ever met with Mr. Kilimnik on that trip.

Particularly given that Mueller has two cooperating witnesses who were close with Kilimnik in this period, I assume we’ll get more — possibly substantially more — details about how the suspected GRU spy Kilimnik served as the handler for Trump’s campaign manager during a period when GRU was rolling out its stolen emails.

Hidden stash

I noted on Pod Save America the other day, Manafort’s calculations look idiotic if Mueller is about to seize the last of his ill-gotten gains, $46 million in forfeitures. It looks a little different if he’s got $100 million stashed in Cyprus that, if he is pardoned, he can go live off of.

That’s another thing the WSJ reported that Manafort lied about.

In his conversations with Mr. Mueller’s team, Mr. Manafort also allegedly misrepresented information about payments he received related to his lobbying work, the people familiar with the matter said.

Particularly given that Manafort hadn’t paid his mortgage on his Trump Tower condo, Mueller has permission under Manafort’s plea deal to replace that forfeiture with another. So after spending 6 months making Manafort identify the last of his liquid and legal holdings in the US, Mueller could go after whatever else Manafort has.

If Mueller not only proved Manafort was lying, but proved he had the funds to replace the forfeitures that he hadn’t actually owned, that would further constrain his finances going forward.

Trump’s pardon dangles

Between Michael Cohen and Mike Flynn, we’ll have sentencing hearings for two people known to have been floated pardons by Trump for their lies. Admittedly, both the public reporting based off leaks and Cohen’s language about pardons in his sentencing memo stops short of offering a guarantee — or, indeed, any direct conversations with attorneys.

He took these steps, moreover, despite regular public reports referring to the President’s consideration of pardons and pre-pardons in the SCO’s investigation. See, e.g., Sharon LaFraniere and Nicholas Fandos, Trump Raises Idea of Pardon For Manafort, N.Y. Times, Nov. 28, 2018, at A1; Carol D. Leonnig and Josh Dawsey, Trump Recently Sought His Lawyers’ Advice on Possibility of Pardoning Manafort, Giuliani Says, Washington Post (Aug. 23, 2018, https://www.washingtonpost.com/politics/trumpsought-his-lawyers-advice-weeks-ago-on-possibility-of-pardoning-manafort-but-they-counseled He took these steps, moreover, despite regular public reports referring to the President’s consideration of pardons and pre-pardons in the SCO’s investigation. See, e.g., Sharon LaFraniere and Nicholas Fandos, Trump Raises Idea of Pardon For Manafort, N.Y. Times, Nov. 28, 2018, at A1; Carol D. Leonnig and Josh Dawsey, Trump Recently Sought His Lawyers’ Advice on Possibility of Pardoning Manafort, Giuliani Says, Washington Post (Aug. 23, 2018, https://www.washingtonpost.com/politics/trumpsought-his-lawyers-advice-weeks-ago-on-possibility-of-pardoning-manafort-but-they-counseled.

[snip]

He could have fought the government and continued to hold to the party line, positioning himself perhaps for a pardon or clemency, but, instead – for himself, his family, and his country – he took personal responsibility for his own wrongdoing and contributed, and is prepared to continue to contribute, to an investigation that he views as thoroughly legitimate and vital.

According to ABC, pardons are one of the topics Cohen cooperated on.

So Mueller probably has evidence that Trump systematically offered pardons, and may have more than that.

If Mueller has proof that Trump offered Manafort a pardon to keep quiet (or that Manafort believed he had) and Manafort denied it, disclosing that now would be devastating, not least because it would force a judicial decision about whether that had actually happened.

If Mueller can present evidence, now, that Trump promised to pardon Manafort and then Manafort lied about it, then it would make it far harder for Trump to follow through on what was probably not a promise in any case without it being an obviously impeachable offense, if not worse.

And proving that lie might, in addition, change Manafort’s calculus about holding out for a pardon.

June 9 meeting

Finally there’s any number of key disclosures involving Trump about which Trump — as well as Manafort — have already submitted sworn statements. The key one of these involves the Trump Tower meeting. Trump’s lackeys have already made it clear he denied knowledge of the meeting.

President Donald Trump told special counsel Robert Mueller in writing that Roger Stone did not tell him about WikiLeaks, nor was he told about the 2016 Trump Tower meeting between his son, campaign officials and a Russian lawyer promising dirt on Hillary Clinton, according to two sources familiar with the matter.

One source described the President’s answers without providing any direct quotes and said the President made clear he was answering to the best of his recollection.

Given that Trump has made this clear, he must believe his answers match Manafort’s on this point.

But if Mueller has solid evidence — perhaps in the form of both witnesses and communications — then revealing that would undercut all the President’s claims about this meeting.

An even crazier possibility is if Mueller has found evidence — perhaps on those iPods I’m so obsessed about — that Manafort not only has proof to the contrary, but that Manafort was keeping records for his handler Kilimnik.

A big reason Trump seems to have turned on Cohen is that, in the course of reviewing the stuff SDNY seized from Cohen’s home, he discovered how much incriminating evidence Cohen was sitting on, whether intentionally (in the form of recordings) or not. Trump hasn’t gotten the same visibility on how damaging the materials seized in the Manafort raid were — though in the immediate aftermath, John Dowd panicked in the same way (though perhaps not as acutely) he did when SDNY raided Cohen. Heck! Who knows? Maybe there’s even hard evidence of a pardon dangle that was in Manafort’s condo by the time he was raided in July 2017, when the Trump people were trying to minimize Manafort’s awareness of the meeting.

The point being, if Mueller can provide evidence, it would be useful both to show that he has proof that Trump knew about the June 9 meeting (though that’s only the most obvious example) and that Manafort kept evidence showing that proof (as Cohen did, of other incriminating activities). The former would undercut the President’s relentless claims there was no collusion. The latter would lead the President to believe Manafort had betrayed him, like his former lawyer.

Mueller is sitting on a great deal of evidence right now, and neither Manafort’s nor Trump’s team seems to know what to expect. If they have the evidence to do so, it seems it would be very easy to replicate the betrayal that happened with Michael Cohen.

Update: I’m going to note that the outlets that have captured Weissmann’s comments differ in their quotes. ABC uses the passive voice.

“That determination has not been made,” special counsel prosecutor Andrew Weissman said, leaving the matter of a second trial open for consideration.

So does NBC.

“That determination has not been made yet,” U.S. Attorney Andrew Weissmann said when asked if the special counsel would lodge more charges.

But WaPo uses the first person plural.

“With respect to whether there will be additional charges, we have not made that determination yet,” Weissmann said.

Sometimes, especially when they’re in a media room (where they can talk to each other while things are proceeding), journalists can reinforce the wrong transcription. But I’m interested in the passive voice, if Weissmann actually used it, because it might leave open that Mueller’s team had decided, but the grand jury had not yet.

In Addition to Mueller, Six People Are Prosecuting Paul Manafort … and Trump Has No Appropriate Defense Attorney

Because I’ve been obsessing about how Robert Mueller is using his 17 prosecutors, I wanted to note that three different collections of people have signed the responses to Paul Manafort’s challenges to his indictment. On Monday’s response to the challenge to Mueller’s authority generally, Michael Dreeben and Adam Jed appeared, but Kyle Freeny, who has been a member of this team, did not.

On the response to Manafort’s challenge of a money laundering charge and its forfeiture allegation, Freeny is included, as well as Scott Meisler, but not the other two appellate specialists.

On the response to Manafort’s bid to dismiss one of his two false statements charges, just Weissmann, Andres, and Meisler appear.

So even the prosecution of just one defendant, Mueller has now deployed three primary prosecutors and three different appellate specialists.

Meanwhile, the President can’t even find one competent defense attorney to represent him.

Update: Not fucking around.

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.”

[snip]

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.

[snip]

[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.

[snip]

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.

 

The Timing of the Felix Sater Interviews

Back in my first post on the structure of Robert Mueller’s team, “Robert Mueller’s Grand Jury and the Significance of Felix Sater,” I noted that he would know what he was dealing with because of past history with Felix Sater, the sometimes business partner of Donald Trump, who has served as an FBI informant on (among other things) the mob.

In BuzzFeed’s fascinating story on Sater’s past as an intelligence and FBI informant, Anthony Cormier and Jason Leopold go further. They point out that Andrew Weissmann signed Sater’s FBI cooperation agreement and Sater has ties with another five members of Mueller’s team.

Today, as he is being questioned about Trump’s business deals and ties to Russia, he has built relationships with at least six members of special counsel Robert Mueller’s team, some going back more than 10 years.

[snip]

Signing Sater’s cooperation agreement for the Department of Justice was Andrew Weissmann, then an assistant US attorney and now a key member of the special counsel’s team. Mueller himself would be the FBI director for most of the time Sater served as a source.

The mob and fraud and corruption lawyers working for Mueller have a remarkable amount of firsthand knowledge about who Felix Sater is.

Which is why I find the timing of the interviews Sater has had with the three main Russia investigations to be so interesting. These are:

December 2017 [Leopold clarified this via Twitter]: Mueller interview

December 2017 [CNN has reported it occurring on the 20th]: HPSCI interview in lawyer’s office

April 2018: Scheduled interview with SSCI

This, in spite of the fact that Sater’s role in helping pitch a Ukrainian peace deal to Mike Flynn first got reported in February.

A week before Michael T. Flynn resigned as national security adviser, a sealed proposal was hand-delivered to his office, outlining a way for President Trump to lift sanctions against Russia.

[snip]

The amateur diplomats say their goal is simply to help settle a grueling, three-year conflict that has cost 10,000 lives. “Who doesn’t want to help bring about peace?” Mr. Cohen asked.

But the proposal contains more than just a peace plan. Andrii V. Artemenko, the Ukrainian lawmaker, who sees himself as a Trump-style leader of a future Ukraine, claims to have evidence — “names of companies, wire transfers” — showing corruption by the Ukrainian president, Petro O. Poroshenko, that could help oust him. And Mr. Artemenko said he had received encouragement for his plans from top aides to Mr. Putin.

[snip]

Mr. Artemenko said a mutual friend had put him in touch with Mr. Sater. Helping to advance the proposal, Mr. Sater said, made sense.

“I want to stop a war, number one,” he said. “Number two, I absolutely believe that the U.S. and Russia need to be allies, not enemies. If I could achieve both in one stroke, it would be a home run.”

After speaking with Mr. Sater and Mr. Artemenko in person, Mr. Cohen said he would deliver the plan to the White House.

Mr. Cohen said he did not know who in the Russian government had offered encouragement on it, as Mr. Artemenko claims, but he understood there was a promise of proof of corruption by the Ukrainian president.

“Fraud is never good, right?” Mr. Cohen said.

He said Mr. Sater had given him the written proposal in a sealed envelope. When Mr. Cohen met with Mr. Trump in the Oval Office in early February, he said, he left the proposal in Mr. Flynn’s office.

And in spite of the fact that Sater’s role in pitching a Trump Tower deal became known at least as early as August, when Michael Cohen reported it to Congress.

While Donald Trump was running for president in late 2015 and early 2016, his company was pursuing a plan to develop a massive Trump Tower in Moscow, according to several people familiar with the proposal and new records reviewed by Trump Organization lawyers.

As part of the discussions, a Russian-born real estate developer urged Trump to come to Moscow to tout the proposal and suggested that he could get President Vladimir Putin to say “great things” about Trump, according to several people who have been briefed on his correspondence.

The developer, Felix Sater, predicted in a November 2015 email that he and Trump Organization leaders would soon be celebrating — both one of the biggest residential projects in real estate history and Donald Trump’s election as president, according to two of the people with knowledge of the exchange.

Sater wrote to Trump Organization Executive Vice President Michael Cohen “something to the effect of, ‘Can you believe two guys from Brooklyn are going to elect a president?’ ” said one person briefed on the email exchange. Sater emigrated from what was then the Soviet Union when he was 6 and grew up in Brooklyn.

So even Mueller’s prosecutors, who know Sater well, waited at least four months before they interviewed him.

Plus, the timing of these interviews is interesting given the other known interview schedules (see this CNN timeline for the easiest comparison). Sater’s HPSCI interview, for example, took place the same week as long-time, loyal Trump assistant Rhona Graff got interviewed, at a time when Republicans had started blowing through interviews in an attempt to finish their investigation (HPSCI announced they were done with interviews today).

SSCI, by comparison, first tried to interview Michael Cohen — an important participant in both Sater roles — in September, but brought him back on October 25 after he released a public statement.

In Mueller’s investigation, Sater got interviewed around the same time the team was interviewing Hope Hicks and Don McGahn, really high level people with a good degree of personal exposure.

And of course, all of these interviews took place in the wake of the November 30 Mike Flynn plea deal, who reportedly received the Ukrainian pitch.

So December Mueller and HPSCI interviews and an April SSCI interview suggests that all parties, for different reasons, felt like they had to do a lot of work before bringing in Sater, in spite of the fact that he was an identified interest as soon as the Flynn concerns were raised. Remember, too, that the subpoena Mueller just issued to Sam Nunberg started at almost exactly the same time Sater was pitching that Trump Tower deal.

Mind you, I don’t know what to make of the timing. But I do find it interesting that Sater’s old friends didn’t immediately seek him out for his honest testimony.

How Does the Strzok Text Dump Differ from Jim Comey’s July 5, 2016 Speech?

I’m a bit bemused by the response to DOJ’s release of the texts between Peter Strzok and Lisa Page. As Rod Rosenstein testified before HJC yesterday, the release came after notice to Strzok and Page through their lawyers. The release of the texts came with the approval of DOJ IG Michael Horowitz — who says the investigation into the underlying conduct may last through spring. And Rosenstein strongly implied he wanted them released, taking responsibility for it (while claiming not to know whether Jeff Sessions had a role in their release).

As he explained to Trey Gowdy — who, like a number of Republicans, claimed to be at a loss of what to say to constituents who asked “what in the hell is going on with DOJ and the FBI” — the release of the texts proves that any wrongdoing will be met with consequences.

Gowdy: What happens when people who are supposed to cure the conflict of interest have even greater conflicts of interests than those they replace? That’s not a rhetorical question. Neither you nor I nor anyone else would ever sit Peter Strzok on a jury, we wouldn’t have him objectively dispassionately investigate anything, knowing what we now know. Why didn’t we know it ahead of time, and my last question, my final question — and I appreciate the Chairman’s patience — how would you help me answer that question when I go back to South Carolina this weekend?

Rosenstein: Congressman, first of all, with regard to the Special Counsel, Mr. Strzok was already working on the investigation when the Special Counsel was appointed. The appointment I made was of Robert Mueller. So what I’d recommend you tell your constituents is that Robert Mueller and Rod Rosenstein and Chris Wray are accountable and that we will ensure that no bias is reflected in any actions taken by the Special Counsel or any matter within the jurisdiction of the Department of Justice. When we have evidence of any inappropriate conduct, we’re going to take action on it. And that’s what Mr. Mueller did here as soon as he learned about this issue — he took action — and that’s what I anticipate the rest of our prosecutors, the new group of US Attorneys, our Justice Department appointees. They understand the rules and they understand the responsibility to defend the integrity of the Department. If they find evidence of improper conduct, they’re going to take action.

So Congressman, that’s the best assurance I can give you. But actually, there’s one other point, which is you should tell your constituents that we exposed this issue because we’re ensuring that the Inspector General conducts a thorough and effective investigation, and if there is any evidence of impropriety, he’s going to surface it and report about it publicly.

I actually think Rosenstein did a much better job than others apparently do, yesterday, at distinguishing between the Strzok texts (which apparently were on DOJ issued cell phones and, in spite of having Hillary investigation subject lines may not have been logged into Sentinel) and the political views of Andrew Weissmann or the past representation of Jeannie Rhee. Furthermore, he repeatedly said he would only fire Mueller for cause, and made it clear there had been no cause. Several times he talked about how closely he has worked with Mueller, such as on the scope of what gets included in his investigation (even while defending the charges against Manafort as appropriately included).

That said, I wonder how Rosenstein distinguishes, in his own mind, what he did in approving the release of the texts from an ongoing investigation and what Jim Comey did on July 5, 2016, when he gave a press conference about why Hillary Clinton had not been charged. While Rosenstein’s biggest complaint in his letter supporting the firing of Comey was that he substituted his decision for that of prosecutors, he also argued that the Department shouldn’t release derogatory information gratuitously.

Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.

In response to skeptical question at a congressional hearing, the Director defended his remarks by saying that his “goal was to say what is true. What did we do, what did we find, what do we think about it.” But the goal of a federal criminal investigation is not to announce our thoughts at a press conference. The goal is to determine whether there is sufficient evidence to justify a federal criminal prosecution, then allow a federal prosecutor who exercises authority delegated by the Attorney General to make a prosecutorial decision, and then – if prosecution is warranted – let the judge and jury determine the facts. We sometimes release information about closed investigations in appropriate ways, but the FBI does not do it sua sponte.

In some ways this is worse because of the off chance that Inspector General Michael Horowitz finds that these texts don’t merit some kind of response; the investigation is not finished yet.

That said, I actually do think there’s a difference: Strzok and Page are department employees, rather than subjects of an external investigation. DOJ exercises awesome power, and usually DOJ is releasing the texts of private citizens in this kind of embarrassing way.

Even former clearance holders seem surprised that these texts were discovered. It is unbelievable to me how few people understand the great liberty that counterintelligence investigators like Strzok can have in obtaining the communications of investigative targets like he has now become, particularly during leak or insider threat investigations. That may not be a good thing, but it is what other targets have been subjected to. So I think it reasonable to have FBI’s own subject to the same scrutiny, for better and worse.

I do think it worthwhile for DOJ to show that it will hold people accountable for improper actions.

Plus, aside from one August comment — which we may obtain more context on when Horowitz does finish this investigation — about an “insurance” policy against Trump, the texts simply aren’t that damning (though they do raise questions about Strzok’s role in the investigation). Strzok agrees with Rex Tillerson, after all, that Trump is an idiot.

So as far as that goes, I’m actually okay with Rosenstein’s release of these texts.

Except I worry about something else.

I actually worry less about Mueller getting fired than just about every other Trump opponent on the planet. Rosenstein seems intent to let him do his work, and (notably at several times during the hearing) seems to agree with the gravity of the investigation. Trump can’t get to Mueller without taking out Rosenstein (and Rachel Brand). And I actually think Rosenstein has thus far balanced the position of a Republican protecting a Republican from Republican ire fairly well. I expect the next shoes Mueller drops — whenever that happens — will change the tone dramatically.

What bothers me most about the release of these texts, however, is that they are a response to the same pressure that Comey was responding to (and which he thought he was smart enough to manage, just as Rosenstein surely thinks he can handle it here).

They are a response — from the same people who ran the Benghazi investigation then ignored DOJ’s prosecution of the Benghazi mastermind — to a willingness to challenge the very core of DOJ functionality, all in a bid to politicize it.

Perhaps Rosenstein is right to bide his time — to create space for Mueller to drop the next few shoes — with the release of the Strzok texts.

But at some point, Republicans need to start calling out Republicans for the damage they’re doing to rule of law with this constant playing of the refs, this demand for proof that Democrats aren’t getting some advantage through the rule of law. If those next shoes don’t have the effect I imagine, it may be too late.