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Bannon Aims to Best Jared Kushner’s Biggest Mistake in Modern Political History

Back in September, Steve Bannon agreed on 60 Minutes that firing Jim Comey was the stupidest decision in modern political history.

In a “60 Minutes” interview that was posted online Sunday night, Bannon was asked whether he considered Comey’s dismissal — which ignited a political firestorm and directly led to the appointment of a special counsel to investigate Russian meddling in the 2016 election, including potential ties to Trump’s campaign — the biggest mistake in political history.

Bannon responded, “That would be probably — that probably would be too bombastic even for me, but maybe modern political history.

“He went on to acknowledge that if Comey had not been let go, it’s unlikely that the probe led by special counsel Robert Mueller would have been established.

“I don’t think there’s any doubt that if James Comey had not been fired, we would not have a special counsel, yes,” he said. “We would not have the Mueller investigation. We would not have the Mueller investigation and the breadth that clearly Mr. Mueller is going for.”

At that time, Bannon insisted that he faced no risk from even the expanded Mueller investigation, and hadn’t even lawyered up.

All that changed, of course, after he ran his mouth to Michael Wolff. Bannon claimed to be offended by the June 9, 2016 Trump Tower meeting. In his apology he would even say the entire meeting offended his life’s work making movies about fighting “the evil empire.”

“My comments about the meeting with Russian nationals came from my life experiences as a Naval officer stationed aboard a destroyer whose main mission was to hunt Soviet submarines to my time at the Pentagon during the Reagan years when our focus was the defeat of ‘the evil empire’ and to making films about Reagan’s war against the Soviets and Hillary Clinton’s involvement in selling uranium to them.”

But what really irked Bannon is that when Don Jr, Paul Manafort, and Jared Kushner met with Russians in an effort to obtain dirt on Hillary Clinton, they didn’t use lawyers as cutouts.

“The chance that Don Jr. did not walk these jumos up to his father’s office on the twenty-sixth floor is zero,” said an astonished and derisive Bannon, not long after the meeting was revealed.

“The three senior guys in the campaign,” an incredulous Bannon went on, “thought it was a good idea to meet with a foreign government inside Trump Tower in the conference room on the twenty-fifth floor—with no lawyers. They didn’t have any lawyers. Even if you thought that this was not treasonous, or unpatriotic, or bad shit, and I happen to think it’s all of that, you should have called the FBI immediately. Even if you didn’t think to do that, and you’re totally amoral, and you wanted that information, you do it in a Holiday Inn in Manchester, New Hampshire, with your lawyers who meet with these people and go through everything and then they verbally come and tell another lawyer in a cut-out, and if you’ve got something, then you figure out how to dump it down to Breitbart or something like that, or maybe some other more legitimate publication. You never see it, you never know it, because you don’t need to. . . . But that’s the brain trust that they had.”

On Monday, the home, hotel, and office of the lawyer Trump has long used as such a cutout, Michael Cohen, got raided. Among the things the FBI sought — in addition to information on Cohen’s own corrupt business — were communications Trump and that lawyer and others had about the Access Hollywood video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be. [my emphasis]

Bannon — and Marc Kasowitz, who sent a lawyer to meet with Trump in the wake of news of the raid — was probably among those associates. After all, Bannon also told Wolff that he and Kasowitz had to deal with a number of “near-death problems on the campaign” pertaining to women — like Stormy Daniels and Karen McDougal — making legal threats against Trump.

Unable to hire prestige talent, Bannon turned to one of the president’s longtime hit-man lawyers, Marc Kasowitz. Bannon had previously bonded with Kasowitz when the attorney had handled a series of near-death problems on the campaign, including dealing with a vast number of allegations and legal threats from an ever growing list of women accusing Trump of molesting and harassing them.

Now, Steve Bannon, the guy who claimed firing Jim Comey was the stupidest recent political decision, the guy who wasn’t so much opposed to political rat-fucking as he was opposed to doing it without using lawyers as a cutout, is shopping a new plan to get Trump out of his legal woes: fire Rod Rosenstein.

Stephen K. Bannon, who was ousted as White House chief strategist last summer but has remained in touch with some members of President Trump’s circle, is pitching a plan to West Wing aides and congressional allies to cripple the federal probe into Russian interference in the 2016 election, according to four people familiar with the discussions.

The first step, these people say, would be for Trump to fire Deputy Attorney General Rod J. Rosenstein, who oversees the work of special counsel Robert S. Mueller III and in recent days signed off on a search warrant of Trump’s longtime personal lawyer, Michael Cohen.

Bannon also wants to fire Ty Cobb, one of Trump’s remaining semi-legit lawyers, as part of an effort to invalidate all the testimony from White House officials — including himself!!!! — based on the claim it should have been covered by executive privilege.

And he is telling associates inside and outside the administration that the president should create a new legal battleground to protect himself from the investigation by asserting executive privilege — and arguing that Mueller’s interviews with White House officials over the past year should now be null and void.

“The president wasn’t fully briefed by his lawyers on the implications” of not invoking executive privilege, Bannon told The Washington Post in an interview Wednesday. “It was a strategic mistake to turn over everything without due process, and executive privilege should be exerted immediately and retroactively.”

[snip]

Bannon believes Trump can argue he was given poor counsel by his lawyers on Russia, including Ty Cobb, who has encouraged a cooperative approach to Mueller’s team.

“Ty Cobb should be fired immediately,” Bannon said.

I’m agnostic about whether the Access Hollywood video actually relates to the Russian investigation. If it does, the only conceivable reason to refer it to Southern District of NY would be to establish a clean team — but Mueller’s team has already handled interactions with investigations involving two lawyers and/or legal teams, Melissa Laurenza (who testified that Manafort led her to lie on FARA forms), and Skadden Arps. I do think it possible — highly likely, actually — that Cohen may have been used as a cutout in some hotel room in New England to cover-up other sensitive issues.

But given Bannon’s response, the investigation into Cohen’s cover-up of Trump’s problems with women — including both the Access Hollywood tape and the legal negotiations with Daniels and McDougal — probably implicates Bannon as well as Cohen.

And so Bannon wants to do what Kushner did when he, similarly, realized how much a legal investigation jeopardized him personally: fire the guy running the investigation.

Indeed, Bannon seems so panicked he can’t even remember that such moves rank among the stupidest in modern political history.

Update: One more thing about the Stormy/McDougal/Access investigation. That may come directly out of Bannon’s own testimony, which would explain why he’d want to try to invalidate it.

Manafort Wants DOJ to Return Some of the Information Seized in His [Condo*] 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 [note, Mueller filings make clear it was not a no-knock search], 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.

*Update: In Mueller’s response to this, they make it clear this was not a no-knock warrant, and I’ve corrected the title accordingly.

The warrant application had not sought permission to enter without knocking. In issuing the warrant, the magistrate judge authorized the government to execute the warrant any day through August 8, 2017, and to conduct the search “in the daytime [from] 6:00 a.m. to 10:00 p.m.” Doc. 264-1 at 1. The government complied fully with those date and time conditions, and Manafort does not contend otherwise.

Why Are Republicans Still Squealing about FISA Applications If HPSCI Report Cedes Carter Page Concerns?

Republicans in Congress continue to make fairly breath-taking demands on Rod Rosenstein and Christopher Wray in what seems to be an attempt to create a bogus claim of non-responsiveness that Trump can use to fire one or both of them.

First there was the demand that the House Intelligence Committee get all of FBI’s non-grand jury records on the Mueller investigation, a demand Paul Ryan backed. Then there was the push to publish the Nunes memo over DOJ’s objections. More recently, after Wray’s doubling the number of FBI staffers (to 54) in an attempt to meet a Bob Goodlatte document deadline for FISA, Hillary investigation, and McCabe firing materials proved insufficient, Jeff Sessions has put Chicago’s US Attorney, John Lausch, in charge of the response. As with Sessions’ selection of Utah US Attorney John Huber to review other GOP demands, Sessions seems to be giving himself and his deputies cover from fairly ridiculous GOP demands.

Nevertheless, such concessions have not entirely sheltered Trump’s main targets from the kinds of complaints that might expose Robert Mueller’s investigation below them. Mark Meadows, one of the lead attack dogs in this congressional obstruction effort, even suggested Congress might impeach Rosenstein for failing to meet a 2-week deadline on a Bob Goodlatte subpoena.

Through it all, the complaints that FBI used the Steele dossier as one piece of evidence in Carter Page’s FISA application, persist. This, in spite of the fact that Page had been under FISA surveillance years before, and in spite of the fact that all sides agree that the counterintelligence investigation into Trump’s aides started in response to the George Papadopoulos tip from Australia.

This, in spite of the passage from the Schiff memo (including one redacted sentence) that seems to assert that FBI considered Page an on-going counterintelligence concern.

DOJ cited multiple sources to support the case for surveillance Page — but made only narrow use of information from Steele’s sources about Page’s specific activities in 2016, chiefly his suspected July 2016 meetings in Moscow with Russian officials. [entire short sentence redacted] In fact, the FBI interviewed Page in March 2016 about his contact with Russian intelligence, the very month candidate Donald Trump named hi a foreign policy advisor.

And the Schiff memo is consistent with what Sheldon Whitehouse (among the few other people who had read the application at the time) said.

Whitehouse: I’ve got to be careful because some of this is still classified. But the conclusion that I’ve reached is that there was abundant evidence outside of the Steele dossier that would have provoked any responsible FBI with a counterintelligence concern to look at whether Carter Page was an undisclosed foreign agent. And to this day the FBI continues to assert that he was a undisclosed Russian foreign agent.

Importantly, however, it’s no longer just former prosecutors in the Democratic party who seem to confirm that Page was a real counterintelligence concern, and therefore legitimately a FISA target. At least, that’s what these two passages from the GOP House Intelligence Report suggest.

If you’re complaining that the Intelligence Community didn’t inform Trump about that members of his campaign team were “assessed to be potential counterintelligence concerns,” (and this likely includes Paul Manafort, as well as Page), then you can’t very well complain if FBI obtained a FISA warrant once those counterintelligence concerns left the campaign team. Hell, you’re practically inviting the FBI to obtain such a warrant while the counterintelligence concern is on the campaign, to help warn the candidate.

I know this is a bit to ask, but the GOP should not be able to have it both ways, to try to discredit the Trump investigation by pointing to the use of the Steele dossier in targeting Page, even while demanding FBI should have shared what it knew about Page because he posed a risk to Trump.

Michael Cohen’s Stormy Weather: Four Observations

As you’ve no doubt heard, the FBI raided Michael Cohen’s office, home, and hotel today. They were looking for stuff related to his payoff to Stormy Daniels … and other things, including (per the WaPo) “possible bank fraud, wire fraud and campaign finance violations.”

Some thoughts:

Geoffrey Berman, a symptom of Trump’s corruption, is responsible

As NYT first reported, this raid was a referral from Robert Mueller, not something executed by his team.

The prosecutors obtained the search warrant after receiving a referral from the special counsel in the Russia investigation, Robert S. Mueller III, according to Mr. Cohen’s lawyer, who called the search “completely inappropriate and unnecessary.” The search does not appear to be directly related to Mr. Mueller’s investigation, but most likely resulted from information that he had uncovered and gave to prosecutors in New York.

That means Mueller would have presented the evidence to Deputy Attorney General Rod Rosenstein, who would have made the decision to hand off the lead to Southern District of NY, with the folks there buying into not the investigation but the unusual raid of an attorney’s office.

Which, in turn, means it was approved by the US Attorney for SDNY. After Trump fired Preet Bharara (who was honing in on some of Trump’s corruption), he prioritized replacing Preet’s deputy, Joon Kim (who very recently returned to his former law firm). He replaced him not by elevating someone else, but by installing someone — Geoffrey Berman — he had interviewed personally. Berman is, if anything, a symbol of Trump’s abuse, not least because he hasn’t even been nominated formally. He’s a bureaucratic end-around.

And he had to have signed off on this raid (unless he recused, which will earn him the wrath of Trump all by itself).

Update: ABC did confirm yesterday that Berman did recuse. Daily Beast describes that Republican Robert Khuzami’s in charge.

[T]he recusal by Berman the developer’s son, the referral from Mueller is being handled by the deputy U.S. Attorney, Robert Khuzami. He is the son of two professional ballroom dancers.

That’s right, Mr. President, his dad and mom are ballroom dancers!

Deputy U.S. Attorney Khuzami is a Republican and even spoke at the 2004 Republican convention in support of George W. Bush.

But that will only make it harder for Trump to say he is the victim of Democrats.

And Khuzami is an expert at financial crimes, having ordered the arrest of 120 people for securities fraud in a single day during his earlier time as a Manhattan federal prosecutor. He subsequently served as head of enforcement at the U.S. Securities and Exchange Commission.

Trump’s Friday comments probably made this worse

This raid is not all about Stormy Daniels, but some of it is. Which suggests Trump’s comments on Friday, in which he disavowed the payment Cohen made on his behalf, probably made this worse.

Q Mr. President, did you know about the $130,000 payment to Stormy Daniels?

THE PRESIDENT: No. No. What else?

Q Then why did Michael Cohen make those if there was no truth to her allegations?

THE PRESIDENT: Well, you’ll have to ask Michael Cohen. Michael is my attorney. And you’ll have to ask Michael Cohen.

Q Do you know where he got the money to make that payment?

THE PRESIDENT: No, I don’t know. No.

By claiming — almost certainly falsely — not to have known about the payment to Daniels, Trump probably scotched any claim Cohen might make to privilege. It also meant that Cohen either claimed to be representing Trump falsely, or is lying in sworn documents about doing so.

This raid would have had to have been approved over some time, not Friday afternoon. But one way or another, I imagine these comments made it easier for DOJ and a judge to approve the raid, at least with respect to the Stormy Daniels material.

Manafort will shortly get this raid approved for Mueller

Last week, in my analysis of the Mueller filing explaining his mandate, I suggested he was getting some things approved that weren’t relevant to the Manafort challenge but were relevant to the larger investigation.

Like this:

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.

So when Amy Berman Jackson rules against what was ultimately a desperate bid by Trump’s campaign chair, she’ll be implicitly approving of practices like “investigating otherwise unrelated allegations against a central witness” if it’s “necessary to obtain cooperation.”

And just to be sure, Michael Dreeben will be on hand for this argument.

Trump has no appropriate lawyer to this task

Trump is wailing right now about this raid.

So I just heard they broke into the office of one of my personal attorn[ey]s…It’s a disgraceful situation. It’s a total witch hunt. I’ve been saying it for a long time. I’ve wanted to keep it down. I’ve given over a million pages in documents to the special counsel. They continue to just go forward and here we are talking about Syria, we’re talking about a lot of serious things…and I have this witch hunt constantly going on for over 12 months now. Actually it’s much more than that. You could say right after I won the nomination it started.

When I saw this, when I heard about it, that is a whole new level of unfairness.

This has been going on. I saw one of the reporters who is not necessarily a fan of mine…he said this is now getting ridiculous. They found no collusion what so ever with Russia.

This is the most biased group of people. These people have the biggest conflicts of interest I have ever seen. Democrats — all. Either Democrats or a couple of Republicans who worked for President Obama. They’re not looking at the other side — Hillary Clinton… all of the crimes that were committed, all of the things that happened that everybody is very angry about from the Republican side and the independent side. They only keep looking at us.

They raided the office of a personal attorney early in the morning. It’s a disgrace. So we’ll be talking about it more.

[snip]

The stock market dropped a lot today as soon as they heard the noise you know of this nonsense that was going on. It dropped a lot. It was up — it was way up. It dropped quite a bit at the end. That we have to go through that. We’ve had that hanging over us from the very, very beginning. And yet the other side they’re not even looking. And the other side is where there are crimes and those crimes are obvious — lies under oath all over the place, emails that are knocked out, that are acid washed and deleted, 33,000 emails were deleted after getting a subpoena from Congress. And nobody bothers looking at that.

Amid the wailing, Trump suggested he might fire Mueller.

“Why don’t I just fire Mueller? Well, I think it’s a disgrace what’s going on. We’ll see what happens,” Trump said. “Many people have said you should fire him. Again, they found nothing. And in finding nothing, that’s a big statement.”

As he nudges closer to firing Mueller, remember: after having chased John Dowd off, Trump has no competent defense attorney.

He may well fire Mueller. But he has no one to guide him out of the morass that doing so will cause.

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.

Is Manafort Getting Close to Crying “Uncle”?

Even before this hilarious Zoe Tillman report on a hearing in Paul Manafort’s civil suit against Robert Mueller, I was going to point to the things Manafort has learned that we haven’t. But the report that Manafort’s lawyers are trying to “Stop Bobby Three Sticks, before he indicts again!!!” makes the details all the more interesting.

In the hearing, Manafort’s lawyers tried to rescue their desperate lawsuit arguing Mueller’s appointment is improper by arguing they’re only trying to prevent prospective actions with this lawsuit — that is, they’re trying to prevent Mueller from larding on more charges.

During arguments Wednesday about whether Manafort’s lawsuit challenging special counsel Robert Mueller’s appointment could go forward, Manafort’s lawyer said the case wasn’t about getting the existing indictments tossed out — it was about stopping future prosecutions against Manafort by the special counsel’s office.

Pressed by the judge about how Manafort could sue now if he was trying to stop activity by the special counsel’s office that hadn’t happened yet, Manafort’s lead attorney Kevin Downing argued that the harm to Manafort was ongoing because the special counsel’s investigation and the grand jury were still active.

Without an order from the court stopping Mueller’s office from pursuing other charges in the future — based on an appointment order that Downing contends was unlawful — Manafort would have to “sit and wait” and keep chasing the special counsel’s office wherever they decided to prosecute him next in order to challenge Mueller’s appointment, Downing said. He didn’t specify what other types of charges he thought the special counsel might be investigating against Manafort.

Manafort’s civil lawsuit against the Justice Department and the special counsel’s office, filed in January in the US District Court for the District of Columbia, asked the court to not only declare Mueller’s original appointment in May invalid, but also to set “aside all actions taken against Mr. Manafort pursuant to the Appointment Order.”

But Downing has since walked that back, saying that they’re only asking for a forward-looking order that blocks future action.

As I noted, there are several apparently unrelated things that Mueller’s team may have shown Manafort that they haven’t shown us.

First, back on March 1, Mueller’s team moved to unseal transcripts of some sidebar conferences from the status conferences on January 16 and February 14, as well as an ex parte discussion they had with the judge on February 14 (as well as discussions about why Manafort couldn’t yet, and still can’t, make bail from February 14).

The United States of America, by and through Special Counsel Robert S. Mueller, III, respectfully moves to unseal the sealed portion of the transcripts of sidebar/bench conferences that occurred during the status conferences held in this matter on January 16, 2018, and February 14, 2018. The transcripts of these bench conferences were sealed at the government’s request. At the time, the government indicated that the cause for sealing was likely to be mooted in the near future and that the government had no objection to making the transcript available to the public once that happened. The government respectfully submits that unsealing is now appropriate. The government also submits that the transcript of an ex parte sidebar discussion between the government and the Court, conducted at the February 14, 2018, status conference should also be unsealed and made available to the public, the cause for sealing having been mooted. [my emphasis]

The cause for sealing that would soon be mooted might either be the larding on of new charges against Manafort related to his more recent money laundering between 2015 and 2017 (which took place on February 22), or Rick Gates’ anticipated plea (which took place on February 23).

On March 7, Gates’ team asked for more time to object to the unsealing, until five days after they got the transcripts, based on the fact that Tom Green had just joined the case and wasn’t present at those hearings. On March 9, Manafort’s team asked for the same five days after they got the transcripts. Judge Amy Berman Jackson granted both those requests. Since then, there’s been no further developments on this unsealing reflected in the unsealed docket, though there are skips in the numbering (230 and 231, and 238). While it’s possible those transcripts aren’t ready yet, the original version of the January 16 transcript was ready in 7 days (there’s no notice for the February 14 transcripts, though two hearings since that one have been docketed).

So it’s quite possible Manafort now has the transcript of that ex parte sidebar from February 14, but has decided he doesn’t want us to see it.

Then there’s the minute notice from yesterday granting the government’s request to seal an exhibit from its Monday filing.

Berman Jackson’s approval notes that the government has already released a redacted version of the exhibit, meaning the exhibit in question must be the Rod Rosenstein memo. I suggested yesterday that the government was effectively providing Manafort a less redacted copy showing what else it was investigating Manafort for, which might well pertain to Oleg Deripaska, given that Mueller dropped an otherwise superfluous reference to Deripaska in Monday’s motion.

But who knows? There are definitely possible investigative prongs that might be even more damaging for Manafort than just his well-known relationship with Deripaska.

Whatever it is, Manafort’s team went from reading that memo to making a desperate bid to prevent Mueller from bringing any more indictments against Manafort.

That bid — as well as the bid to throw out the indictments — appears to be doomed. Based on Tillman’s report, Berman Jackson seems to have already read Monday’s filing, given that the doubts she raised in today’s hearing all were all laid out in that.

US District Judge Amy Berman Jackson — who is also handling Manafort’s criminal case in DC — expressed significant doubts on Wednesday about whether Manafort could pursue a civil lawsuit. She questioned whether there was a clear limit on how broad a special counsel’s authority could be from the get-go; how Manafort had standing to sue over a possible future prosecution that hadn’t yet happened; and why he should be able to bring a civil lawsuit when he could make the same arguments in the criminal cases, where he clearly had the right to challenge the indictments.

The judge noted that the Justice Department regulations Manafort cited explicitly said that they did not create rights that could be enforced in a civil lawsuit.

That she’s raising objections from that motion suggests she finds them (unsurprisingly) persuasive.

Which means, absent some action from Trump or Rosenstein, Manafort will have to just sit there trying to negotiate bail and waiting for new charges until such time as he screams “uncle.”

There Are Almost Certainly Other DAG Rosenstein Memos

As I noted in this post, Robert Mueller’s team of “Attorneys for the United States of America” responded to Paul Manafort’s claim that Rod Rosenstein’s grant of authority to the Special Counsel did not extend to the money laundering he is currently being prosecuted for by revealing an August 2, 2017 memo from Rosenstein authorizing Mueller to investigate, along with a bunch of redacted stuff,

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.

As the filing notes, this memo has not been revealed before, neither to us nor to Manafort.

That’s all very interesting (and has the DC press corps running around claiming this is a big scoop, when it is instead predictable). More interesting, however, is the date, which strongly suggests that there are more of these memos out there.

Mueller is unlikely to have waited two and a half months to memorialize his scope

I say that, first of all, because Rosenstein wrote the August 2 memo two and a half months after he appointed Mueller. Given Trump’s raging attacks on the investigation, it’d be imprudent not to get memorialization of the scope of the investigation at each step. Indeed, as I’ve noted, in the filing Mueller points to the Libby precedent, arguing that this memo “has the same legal significance” as the two memos Jim Comey used to (publicly) memorialize the scope of Patrick Fitzgerald’s 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.

The first of those Comey letters, dated December 30, 2003, authorized Fitz to investigate the leak of Valerie Plame’s identity. The second of those, dated February 6, 2004, memorialized that Fitz could also investigate,

federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General’s authority to impose or pursue.

It’s the second memo that memorialized Fitz’ authority to prosecute Scooter Libby for protecting Dick Cheney’s role in outing Valerie Plame.

Mueller, then the acting FBI Director, would presumably have been in the loop of the Fitz investigation (as Christopher Wray is in Mueller’s) and would have known how these two letters proceeded. So it would stand to reason he’d ask for a memo from the start, particularly given that the investigation already included multiple known targets and that Trump is even more hostile to this investigation than George Bush and Dick Cheney were to Fitz’s.

Admittedly, unlike the Comey memo, which was designed for public release, there’s no obvious, unredacted reference to a prior memo. Though something that might imply a prior memo is redacted at the top of the released memo (though this is probably a classification marking).

And, given that this memo was designed to be secret, Rosenstein may have written the memo to obscure whether there are prior ones and if so how many.

The memo closely follows two key dates

That said, the date of the memo, August 2, is mighty curious. It is six days after the July 27 Papadopoulos arrest at Dulles airport. And seven days after the July 26 no knock search of Paul Manafort’s Alexandria home.

That timing might suggest any of several things. It’s certainly possible (though unlikely) the timing is unrelated.

It’s possible that Rosenstein wrote the memo to ensure those two recent steps were covered by his grant. That wouldn’t mean that the search and arrest wouldn’t have been authorized. The memo itself notes that Mueller would be obliged to inform Rosenstein before each major investigative step.

The Special Counsel has an explicit notification obligation to the Attorney General: he “shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.” 28 C.F.R. § 600.8(b). Those reports cover “[m]ajor developments in significant investigations and litigation,” which may include commencing an investigation; filing criminal charges; executing a search warrant; interviewing an important witness; and arresting a defendant.

Both Papadopoulos’ arrest and that dramatic search would fit this criteria. So it’s virtually certain Rosenstein reviewed Urgent Memos on both these events before they happened. Plus, his memo makes it clear that the allegations included in his memo “were within the scope of the Investigation at the time of your appointment and are within the scope of the Order,” meaning that the inclusion of them in the memo would retroactively authorize any activities that had already taken place, such as the collection of evidence at Manafort’s home outside the scope of the election inquiry.

As I noted, the memo also asserts that Special Counsels’ investigative authority, generally, extends to investigating obstruction and crimes the prosecutor might use to flip witnesses.

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.

Mueller used the false statements charges against Papadopoulos to flip him. He surely hopes to use the money laundering charges against Manafort to flip him, too. Both issues may have been at issue in any memo written to newly cover the events of late July.

Mueller may not have revealed the scope of the Manafort investigation at that time

Now consider this detail: the second bullet describing the extent of the investigation into Manafort has a semi-colon, not a period.

It’s possible Mueller used semi-colons after all these bullets (of which Manafort’s is the second or third entry). But that, plus the resumption of the redaction without a double space suggests there may be another bulleted allegation in the Manafort allegation.

There are two other (known) things that might merit a special bullet. First, while it would seem to fall under the general election collusion bullet, Rosenstein may have included a bullet describing collusion with Aras Agalarov and friends in the wake of learning about the June 9 Trump Tower meeting with his employees. More likely, Rosenstein may have included a bullet specifically authorizing an investigation of Manafort’s ties with Oleg Deripaska and Konstantin Kilimnik.

The Mueller memo actually includes a specific reference to that, which as I’ve noted I will return to.

Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”

The latter might be of particular import, given that we know a bunch of fall 2017 interviews focused on Manafort’s ties to Deripaska and the ongoing cover-up with Kilimnik regarding the Skadden Arps report on the Yulia Tymoshenko prosecution.

All of which is to say that this memo may reflect a new expansion of the Manafort investigation, perhaps pursuant to whatever the FBI discovered in that raid on Manafort’s home. If so, that should be apparent to him, as he and his lawyers know what was seized.

Still, I wouldn’t be surprised if he inquired about what authorized that July 26 raid, if for no other reason than to sustain his effort to make more information on Mueller’s investigation public.

The redactions almost certainly hide two expansions to the investigation as it existed in October 2016

Now let’s turn to what else (besides another possible Manafort bullet) the redactions might show, and what may have been added since.

The unredacted description of the Manafort investigation takes up very roughly about one fifth of the section describing allegations Mueller was pursuing.

The Schiff Memo revealed that DOJ had sub-investigations into four individuals in October 2016.

Endnote 7 made it clear that, in addition to Page, this included Flynn and Papadopoulos, probably not Rick Gates, and one other person, possibly Roger Stone.

In August 2017, all four of those would have been included in a Rosenstein memo, possibly with a bullet dedicated to Gates alone added. That said, not all of these would require two or more bullets (and therefore as much space as the Manafort description). Papadopoulos’ description might include two, one dedicated to the collusion and one to the lying about collusion, or just one encompassing both the collusion and the lying. Flynn’s might include three, one dedicated to the collusion, one to the lying about it, and one to the unregistered foreign agent work, including with Turkey, that we know Mueller to have been investigating; or, as with Papadopoulos, the lying about the collusion might be incorporated into that bullet. Stone’s bullet would likely have only reflected the collusion, an investigation that is currently very active. Carter Page’s suspected role as a foreign agent might be one bullet or two.

That suggests, though doesn’t confirm, that there are a few other things included in those redacted bullets, things not included in the investigation in October 2016 as reflected in the Schiff memo.

Indeed, we should expect two more things to be included in the bullet points: First, the name of any suspect, including the President, associated with the obstruction of justice. Rosenstein himself had already been interviewed with respect to that aspect of the investigation by August 2, so surely Rosenstein had already authorized that aspect of the investigation.

The redactions most likely also include the names of Don Jr and Jared Kushner (and Paul Manafort), for their suspected collusion with Russia as reflected in the June 9 meeting. At least according to public reporting, Mueller may have first learned of this in June when Manafort and Kushner confirmed it in turning over evidence to Congress and Mueller. The first revelations that Mueller was obtaining subpoenas from a dedicated grand jury were on August 3, just one day after this memo. That same day, reports described Mueller issuing subpoenas related to the June 9 meeting.

Indeed, it’s quite possible Rosenstein issued this memo to memorialize the inclusion of the President’s spawn among the suspects of the investigation.

Rosenstein has almost certainly updated this memo since August 2

All that said, there’s not enough redacted space to include the known expanded current scope of the investigation, and given that the newly expanded scope gets closer to the President, Rosenstein has surely issued an update to this memo since then. These things are all definitively included in the current scope of the investigation and might warrant special mention in any update to Rosenstein’s authorizing memo:

Many of these — particularly the ones that affect only Russians — might be included under a generic “collusion with Russia” bullet. The closer scrutiny on Jared, however, surely would get an update, as would any special focus on the Attorney General.

More importantly, to the extent Mueller really is investigating Trump’s business interests (whether that investigation is limited just to Russian business, or more broadly) — the red line the NYT helpfully set for the President — that would necessarily be included in the most up-to-date memo authorizing Mueller’s activities. There is no way Mueller would take actions involving the President personally without having the authorization to do so in writing.

Which is why we can be virtually certain the August 2 memo is not the last memo Rosenstein has written to authorize Mueller’s actions.

Mind you, Mueller probably wouldn’t want to release a memo with several pages of redacted allegations. Which may be why we’re looking at the redacted version of an almost certainly superseded memo.

Updated: Later today Mueller’s team asked to file a copy of an exhibit–which given Judge Berman Jackson’s description of it as released in redacted form, has to be the Rosenstein memo–under seal. Which suggests they’re going to show Manafort what else they’re investigating (which I bet is the Deripaska stuff).

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.

 

Alex Van Der Zwaan: “Gone Native”

Tomorrow, Alex Van der Zwaan, the former Skadden associate who unsuccessfully attempted to hide ongoing conversations between him, Rick Gates, Konstantin Kilimnik, and (presumably) Greg Craig that took place in September and October 2016 will be sentenced. The government is seeking prison time, his lawyers are seeking probation (in part to keep him out of our nightmarish deportation process).

In advance of the sentencing (and today’s filing explaining how all this is authorized under the Special Counsel mandate Rod Rosenstein gave to Mueller), I wanted to lay out a few more details revealed by the public documents in this case, including the prosecution and defense arguments on sentencing.

Taken together, the documents reveal a few interesting wrinkles.

First, the defense argues that Van der Zwaan didn’t hide the communications he had with Rick Gates and Konstantin Kilimnik in fall 2016 to hide the ongoing relationship Trump’s onetime campaign manager had with someone the FBI still believed had ties to GRU, the Russian intelligence agency behind the hack-and-leak of the DNC emails. Rather, his defense lawyers claim Van der Zwaan hid those things (or rather, attempted to hide them, using means it’s shocking a lawyer would believe might work) because he didn’t want to reveal to the Skadden lawyers who represented him in his first interview with Mueller’s team that he had recorded his conversations in that time period with Greg Craig.

He knew it was improper to have recorded his conversation with the Skadden senior partner; indeed, he understood that he could be fired for having done so. He also knew that a truthful disclosure about his September 2016 calls with Gates and Person A would almost inevitably lead to questioning that could quickly get to the existence of the recordings. During the interview, Alex was keenly aware that he was not speaking only to OSC. Alex was represented by Skadden lawyers, and anything he shared with the OSC would simultaneously be heard by Skadden. In his mind, his boss was listening to every word.

The explanation is unconvincing (so is his lawyers’ claim that Van der Zwaan couldn’t read the Ukrainian document he received). After all, Craig knew (and presumably has also told Mueller’s team unless he’s at legal jeopardy himself) of some of those emails. So Van der Zwaan was bound to be asked the same kinds of questions in any case. Which he was. Which is how he came to confess to making the recordings (and keeping his own notes) in the first place.

It’s not entirely clear why he made that recording. The defense filing claims he didn’t tell anyone about them. But given another detail laid out by all this paperwork, I at least wonder whether he intended to share it with Gates or Kilimnik.

Consider the “going native” claim made about Van der Zwaan by an unnamed witness (who might be Greg Craig).

Yet, although he had been instructed not to share advance copies of the report with the public relations firm retained by the Government of Ukraine, van der Zwaan had, in the words of one witness, “gone native”—that is, he had grown too close to Manafort, Gates, and Person A.

While we knew that Van der Zwaan had shared the Skadden report with Gates and Kilimnik back in 2012, in direct violation of Skadden’s wishes, the defense filing reveals another key detail. In 2012, either while he was moonlighting while being paid by Skadden to help Manafort, Gates, and Kilimnik spin the Skadden report to make the prosecution of Tymoshenko look kosher or just after, Van der Zwaan was talking about working for Manafort and Gates.

That’s another good reason to hide all this: Van der Zwaan was ignoring Skadden Arps instructions at a time when he was considering a job with Gates and Manafort, who weren’t technically the client, but who were laundering the money to pay Skadden with.

Finally, while I don’t make as much of the tie between Van der Zwaan and his father-in-law, Alfa Bank founder German Khan, as others do, the defense filing provides more details on when Van der Zwaan joined the family. He and Eva Khan first met in “spring” 2016; elsewhere that gets described as a year before their marriage, which took place in June 2017.

Which is to say, the entirety of Van der Zwaan’s relationship with the Khan family has taken place during the Russian operation and attempt to cover up the tampering in the US election.

Just for fun: Back in 2008, American diplomats passed on complaints about Khan’s heavy-handedness in the operations of BP Russia, including the anecdote that Khan said he considers The Godfather to be his “manual for life.”

At dinner that evening, Khan had told a stunned Summers that The Godfather was his favorite movie, that he watched it every few months, and that he considered it a “manual for life.”

There’s actually no reason to believe that Van der Zwaan would have become a valuable enough resource that Khan would marry off his daughter to him, Godfather like.

But Van der Zwaan’s behavior in 2016 may make better sense considering the full context of that “going native” comment.

Update: I see from Zoe Tillman’s coverage of Van der Zwaan’s sentencing (where he was given a month in jail) that his lawyers fibbed a bit when they said his second grand jury appearance was entirely voluntary.

[Andrew] Weissmann refuted the idea that van der Zwaan voluntarily came back to tell the truth, saying he had been served with a grand jury subpoena after his first meeting in November 2017 and would have been required to return to the United States anyway.


2012: Van der Zwaan working on Tymoshenko report in facilitating role

July to early August 2012: Van der Zwaan provides unauthorized copy of Skadden report on Yulia Tymoshenko to PR firm engaged by Ukraine’s Ministry of Justice

September 2012: Van der Zwaan provides Rick Gates talking points to spin Skadden report

2012-2013: Van der Zwaan conducts discussions over Gmail about working directly for Gates and Manafort; these were among the other materials Van der Zwaan attempted to destroy in advance of his Mueller interview

2014: Eva Khan moves to London to study art (she is 11 years younger than Van der Zwaan)

Spring 2016: Van der Zwaan and Eva Khan meet

September 2016: First public allegations of spam traffic between Trump marketing account and Alfa bank

September and October 2016:

Rick Gates contacts Van der Zwaan, urges him to contact Kliminik and sends him a document in Ukrainian

September 12, 2016: Van der Zwaan emails Konstantin Kilimnik, who asks him to contact him on Telegraph or WhatsApp

Van der Zwaan reports this to (presumably) Greg Craig

Van der Zwaan reports back to Gates

[These communications continue as a series]

January 2017: Paul Manafort provides Trump a strategy to rebut the Russian investigation by discrediting the Steele dossier

January 2017: Brian Benczkowski leaves transition team and returns to Kirkland & Ellis

March to May 2017: Pending Assistant Attorney General nominee Brian Benczkowski advises Alfa Bank on lawsuit against Buzzfeed

April 2017: Jeff Sessions asks Benczkowski if he wants to be AAG for Criminal Division

May 26, 2017: After months of consultation with Alfa Bank (and German Khan by name) sue Buzzfeed over the Steele dossier

June 2017: Van der Zwaan and Khan married; she applies for permanent residency as his spouse

Prior to November 3, 2017: Van der Zwaan gives Skadden his laptop from the 2012 time frame

October 3, 2017: Alfa Bank lawsuit is moved to federal jurisdiction

November 3, 2017: Van der Zwaan participates in eight hour voluntary interview, represented by Skadden Arps lawyers; during that interview, FBI confronts him with an email he withheld from Skadden’s discovery

November 16, 2017: Van der Zwaan returns to the US

November 17, 2017: Van der Zwaan surrenders his passport to the FBI and retains new counsel (this is probably when Skadden fired him)

November 29, 2017: Kilimnik emails Manafort for review of purportedly exonerating op-ed

December 1, 2017: Van der Zwaan’s second interview with FBI

February 14, 2018: Van der Zwaan agrees to plea deal

February 20, 2018: Van der Zwaan pleads guilty

February 23, 2018: Gates pleads guilty

May 2018: Date Van der Zwaan would have made partner

August 2018: Due date of Van der Zwaan son

Buried Amid the John Dowd News, Mueller’s Team Seems to Think Trump Knows about the June 9 Meeting

I didn’t get a chance to unpack this story before John Dowd up and resigned. It lays out the four areas that Dowd was, until yesterday, negotiating with Mueller’s office regarding Trump’s testimony. It actually provides less detail than the WaPo and CNN stories I covered here. Those stories laid out that Mueller’s team was asking specific questions about:

Flynn’s Firing

  • Whether Trump knew about Flynn’s communications with Russian Ambassador Sergey Kislyak during the presidential transition?
  • What instructions, if any, the president gave Flynn about the contact?Whether he fired Flynn because he had misled Vice President Pence about his contact with Kislyak?

Comey’s Firing

  • Whether he fired Comey because he had mishandled an investigation of Democratic presidential candidate Hillary Clinton?
  • What was Attorney General Jeff Sessions’ involvement in the Comey dismissal?

While far less detailed than those earlier articles, however, yesterday’s pre-Dowd departure story describes Mueller’s team asking questions about four areas (I’ve reordered these to make them chronological):

  1. The circumstances surrounding [the June 9, 2016] Trump Tower meeting
  2. The President’s role in crafting a statement aboard Air Force One that miscast Donald Trump Jr.’s campaign June 2016 meeting with Russians in Trump Tower
  3. The firing of national security adviser Michael Flynn
  4. The firing of FBI Director James Comey

It was this focus, according to CNN, that pissed Trump off because,

The focus on Trump himself in Mueller’s pursuits has alarmed and angered the President, who adhered to a legal strategy of holding back set by his attorney John Dowd and White House special counsel Ty Cobb, who have said for months the investigation was likely to conclude soon.

And now Dowd is gone and Ty Cobb is reportedly likely to follow him, to be replaced by table-pounders who will make noise rather than argue the facts.

Bullet 1 — seven words slipped into the CNN story between stuff we’ve long talked about Trump’s involvement in — ought to be blaring headlines.

BREAKING: “Robert Mueller’s prosecutors are going to ask the President about the circumstances surrounding the meeting at which some Russians, including representatives from Trump’s old business associate Aras Agalarov, pitched Junior, Jared, and Trump’s corrupt campaign manager, on dirt about Hillary in the context of relaxing sanctions,” the headline should have read.

Call me crazy. But I doubt Mueller’s team would ask the President about this unless they had reason to believe Trump knew something about it.

And that changes the import of the three other bullets dramatically.

For example, most people have assumed Bullet 2, Trump’s claim this meeting pertained to adoptions and not dirt-for-sactions, is about obstruction charges (Elizabeth de la Vega lays out how that might serve as the basis for one or another conspiracy charge here). But that ignores that Trump spent the weekend leading up to that statement meeting, twice, with Vladimir Putin, including that bizarre meeting over dinner with no babysitter right before the White House released the statement.

BREAKING: The President met twice with Vladimir Putin while he was taking the lead on responding to questions about a meeting we’re all pretending Trump knew nothing about, and then came out with the spin that Vladimir Putin would most likely give it, the designated Russian propaganda line to cover up its campaign against Magnitsky sanctions.

Which brings us to Bullet 3: Whether Trump (via KT McFarland serving as a go-between from Mar a Lago) ordered Flynn to ask Sergey Kislyak to hold off on responding to sanctions, and if so, why he fired Flynn for doing what he told him to do.

Trump surely didn’t fire Flynn because he lied to Mike Pence (if indeed he did lie). Did he fire Flynn because he didn’t lie about it, making an otherwise marginally legally problematic discussion a legally problematic issue? Or did he fire Flynn because he believed it was the most efficacious way to make the focus on his efforts to roll back sanctions on Russia go away?

Bullet 4. Mueller’s prosecutors want to know why, a day before the Russians showed up for a meeting at which Trump refused to have US press, Trump fired Comey, and then told the Russians,

“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”

Mr. Trump added, “I’m not under investigation.”

Laid out like this, this is what Mueller’s four bullets might look like:

  1. What Trump knew about the dirt-for-sanctions relief deal his one-time business partner Aras Agalarov pitched
  2. Whether Trump gave his National Security Adviser orders to deliver that dirt-for-sanctions deal even before being inaugurated
  3. Why Trump fired Flynn if he was following his orders delivering on that dirt-for-sanctions deal
  4. What Trump meant when he said he fired Comey because firing him took care of the great pressure he had because of Russia

Even as Mueller was negotiating these four questions, Trump called up Putin, at which, according to the Kremlin, “It was agreed to develop further bilateral contacts in light of [the fact that Trump had just fired Rex Tillerson, the next guy standing in the way of fulfilling the dirt-for-sanctions relief deal]. The possibility of organizing a top-level meeting received special attention.” “We will probably get together in the not-too-distant future,” Trump said of the call on Tuesday. “I suspect that we’ll probably be meeting in the not-too-distant future,” he said a second time, a line that reportedly surprised his aides, another piece of news lost in the legal team shake-up. “I think, probably, we’ll be seeing President Putin in the not-too-distant future,” Trump said a third time in his public comments.

So now Dowd is gone, which is probably lucky for him because otherwise he’d be business negotiating over Bullet 5.

5. Why did Trump fire Rex Tillerson and how does that relate to this big new push to meet with Putin again?