Post hoc justification for Mueller conduct that does not appear authorized by the text of the original May 17 appointing Order.

Paul Manafort has moved to have the October 27, 2017 Indictment, and subsequent Superseding Indictment, dismissed on the ground, among others, that Robert Mueller has exceeded the authority granted him on May 17, 2017, when he was appointed by Deputy Attorney General Rod Rosenstein.

The argument is that the indictment of Manafort for business dealings is unrelated to and took place years before 2016 Russian election interference and alleged collusion.

I made a similar point with regard to the guilty plea of Michael Flynn for lying with regard to post-election transition matters, Why is Robert Mueller even investigating the presidential transition?

In Order No. 3915-2017, Mueller was appointed with a specific mandate, to continue an investigation started by James Comey into Russian interference in the election: (a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States Department of Justice.

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a). (c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters. At the March 20, 2017 hearing, Comey described the investigation as relating to election interference: As you know, our practice is not to confirm the existence of ongoing investigations, especially those investigations that involve classified matters, but in unusual circumstances where it is in the public interest, it may be appropriate to do so as Justice Department policies recognize. This is one of those circumstances. I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the ature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed. (Full transcript here) Comey’s reference to a “counterintelligence investigation” clearly was in the context of the preceding sentence of interference in the election. So to the extent the Order governs Mueller’s authority, that authority is limited to the election-related matters, including counterintelligence investigations related to the election. Mueller cannot successfully argue that the political discussions during the transition fall under his power, under the Order, to investigate under 28 C.F.R. § 600.4(a), which concerns “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.” There was no Special Counsel investigation during the transition, so there was nothing with which the Trump transition team could interfere.

In opposition to Manafort’s motion, Mueller submitted Brief in Opposition, which attached as an exhibit an August 2, 2017 Memo, which purported to confirm to Mueller that Manafort’s prior business dealings were covered by the original order of appointment.

Politico reports:

However, Mueller’s team submitted a previously undisclosed memo to a federal court in Washington showing that a few months after Mueller was appointed last May, Rosenstein gave him explicit authority to target Manafort over the financial aspects of his lobbying work for the Ukrainian government — in addition to allegations he was linked to Russian interference in the 2016 election. “The May 17, 2017 [appointment] order was worded categorically in order to permit its release without confirming specific investigations involving specific individuals,” Rosenstein wrote in the Aug. 2, 2017 memo. “The following allegations were within the scope of the Investigation at the time of your appointment and are within the scope of the Order: … 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.” Large chunks of the text of the three-page “scope” memo placed in public court files Monday were blacked out because they contain classified and sensitive law enforcement information, prosecutors said. However, those portions appear to identify various subjects and topics Mueller was authorized to investigate at the outset of the investigation. Prosecutors also said Rosenstein — who has sometimes been the focus of Trump’s ire — gave a specific go-ahead for Manafort’s indictment and Mueller’s other critical moves in the probe. “Every key step in this case — including the investigative path and the Indictment itself — has been authorized by the Acting Attorney General through ongoing consultation,” Mueller’s team wrote in a brief opposing Manafort’s bid to throw out the D.C. case.

The August 2, 2017, Rosenstein memo clearly is being used by Mueller to affirm Mueller’s authority to investigate Manafort’s non-election-related, years-old business dealings. But the timing jumped out at me.

By the time of the August 2 memo, Mueller already was investigating Manafort’s business dealings and gathering evidence for an indictment (which would be unsealed less than three months later).

On July 26, 2017 — a week before the Rosensten memo — Mueller’s team raided Manafort’s home, as the Washington Post reported on August 9, 2017:

FBI agents raided the home in Alexandria, Va., of President Trump’s former campaign chairman, arriving in the pre-dawn hours late last month and seizing documents and other materials related to the special counsel investigation of Russian meddling in the 2016 election. The raid, which occurred without warning on July 26, signaled an aggressive new approach by special counsel Robert S. Mueller III and his team in dealing with a key figure in the Russia inquiry. Manafort has been under increasing pressure as the Mueller team looked into his personal finances and his professional career as a highly paid foreign political consultant. Using a search warrant, agents appeared the day Manafort was scheduled to testify before the Senate Judiciary Committee and a day after he met voluntarily with Senate Intelligence Committee staff members. The search warrant requested documents related to tax, banking and other matters. People familiar with the search said agents departed the Manafort residence with a trove of material, including binders prepared ahead of Manafort’s congressional testimony.

The August 2, 2017 memo was classic boostrapping. It purported to confirm Mueller’s authority to go after Manafort’s business dealings, but Mueller already was doing that and had been doing it for weeks, culminating in the July 26 home raid.

So to the extent the Rosenstein August 2, 2017 memorandum is supposed to instill confidence that Mueller is receiving proper DOJ oversight, it does just the opposite. As least as to the portion revealed about Manafort, it shows a willingness to give post hoc justification for conduct of Mueller that does not appear authorized by the text of the original May 17 appointing Order.

UPDATE 4-5-2018 — I had a chance to discuss this post on The Mark Levin Show (transcript here).



