Paul Manafort’s legal team faces a critical choice as he heads to trial: how aggressively the former Trump campaign chairman should base his defense on alleged political bias and misconduct by federal investigators.

Manafort, a criminal defendant fighting two separate cases, is uniquely positioned to try to dredge up information on bias or potential overreach by FBI and Justice Department officials who have played roles in special counsel Robert Mueller’s probe of ties between the Trump campaign and Russia.


Whether Manafort will seek to uncover and spotlight disparaging details about federal officials, potentially including an FBI agent dismissed from Mueller’s team last year, has become the subject of speculation and anticipation by lawyers involved in the Russia investigation.

“This is something we’ve all been talking about,” said one defense attorney representing a witness in Mueller’s probe. “It’s a hard question.”

Some expect Manafort to take a slash-and-burn approach. “I think they’re going to try to throw any dirt possible,” said former federal prosecutor Randall Eliason. “If he’s going to trial, then I would expect it to be an all-out war, and I wouldn’t be surprised if they try to make those kinds of claims that the prosecution is tainted.”

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An aggressive claim of bias by Manafort is unlikely to derail the prosecution that now threatens him with the prospect of spending the rest of his life behind bars. It would also bring some risk: Lawyers warn that it could anger the judges presiding over his cases, who might see the strategy as a frivolous diversion that could drag the trials into a political morass.

But such moves could also draw public attention to alleged abuses by federal investigators, whom some congressional Republicans have accused of a brazen anti-Trump vendetta. That might draw the attention and sympathy of President Donald Trump, from whom Manafort may be hoping to win a pardon.

“The degree to which he can show broader FBI misconduct in his investigation can lay a foundation for a pardon,” said George Washington University law professor Jonathan Turley. “Thus far, Manafort has not been able to benefit from the controversy surrounding the FBI. To the extent he can make himself part of that narrative, it can only help him — certainly with the president.”

Manafort is facing numerous charges related to his political work for pro-Russian politicians in Ukraine, including money laundering, bank fraud, tax evasion and failing to disclose that he was lobbying for a foreign power. Democrats also suspect that Manafort may have been a key intermediary between the 2016 Trump campaign and Kremlin agents.

With deadlines looming for pretrial motions, many lawyers say that for Manafort, the risk of raising the misconduct issue in court is well worth taking.

“I don’t see a particular downside, other than angering the judge,” said Solomon Wisenberg, a defense attorney and former deputy independent counsel in the Whitewater investigation who noted that Manafort’s team has already irritated one presiding judge.

Democrats suspect that former Trump campaign manager Paul Manafort may have been a key intermediary between President Donald Trump's campaign and Kremlin agents. | Brooks Kraft/Getty Images

Manafort’s defense could allege outrageous government conduct, but such motions rarely prevail. Demands for details on any malfeasance by investigators and attorneys who have worked on the case might stand a better chance, lawyers say.

Prosecutors have told the federal judges overseeing the pair of cases against Manafort that they are nearly finished turning over relevant information about his alleged crimes. That process would typically include documents, witness statements, FBI reports and more.

Prosecutors are obliged to give defense attorneys any evidence that tends to show a defendant’s innocence — so-called exculpatory evidence — or otherwise bolster his defense, including information undercutting the credibility of government witnesses.

However, those basic principles leave room for disagreement — including over how prosecutors should handle derogatory information about an investigator removed from the case for alleged bias or malfeasance but who will not take the witness stand.

That could describe FBI agent Peter Strzok, whom Mueller removed from his team last summer over texts he exchanged with an FBI lawyer in 2016 that were harshly critical of Trump. Strzok had a senior role in the Russia investigation, although it is not clear how involved he was in Manafort’s case.

Judges often reject defense discovery requests related to suspected misconduct, but Turley said the Mueller probe is unusual given that “there are already matters in the public record raising concerns about political bias and influence.”

“Having said that, judges tend to be leery of opening this door because they’re never sure when they can shut it,” he added.

The 332 people connected to the Russia probes A POLITICO analysis reveals that the investigations into the 2016 election and its aftermath now involve hundreds of people in Washington, Moscow and around the world.

Lawyers say there’s no bright-line rule about what information the defense is entitled to in such circumstances.

“If [Strzok] were a witness, that would definitely be discoverable. If he’s not a witness, it’s not as clear cut, but it may still be discoverable,” said one defense attorney closely tracking the case.

But when it comes to Strzok and other federal officials connected to the Russia probe, Manafort faces an obstacle: While the charges he currently faces are the product of Mueller’s Russia investigation, they are not related to Trump or the 2016 campaign. His political work for Ukraine and the payments he took long predated his work for Trump.

“If an investigator was insubordinate three years ago in an unrelated matter, that doesn’t have much pertinence to the investigator’s work in a current case,” said Jeff Welty, a professor of government and public law at the University of North Carolina. “Ultimately, it isn’t enough that an investigator has done something improper at some point in his or her life — it needs to be sufficiently significant that is it ‘material’ to the current investigation.”

Manafort’s defense team declined to comment for this story, citing a judicial gag order.

Manafort’s lawyers already have an ample public record from which to draw, including the work of multiple congressional Russia investigations as well as a Justice Department Office of Inspector General probe into pre-election investigative actions at the FBI and DOJ.

A report detailing Inspector General Michael Horowitz’s findings may emerge soon. Some evidence Horowitz gathered, such as text messages involving Strzok, has been turned over to Congress, but much more is still awaiting review at the Justice Department and FBI. Trump has complained publicly that the pace of the disclosures is too slow.

Both the Justice Department and Mueller’s office declined to comment for this story.

Even after the OIG report is released, Manafort’s legal team could try to demand fuller detail, such as witness interviews. This dynamic is one reason inspector general inquiries are typically delayed until the related criminal cases are over, but Horowitz’s probe of pre-election bias seems to have become at least partially entangled in Mueller’s work.

Past inspector general reviews have prompted prosecutors to make disclosures aiding defendants. One 1997 report exposed deficiencies at the FBI laboratory that included ethical questions about lab examiners. The Justice Department reviewed the examiners’ work and notified defendants about potentially relevant findings. Another inspector general report in 2014 said the department should have done even more in that case to make “appropriate and timely disclosures to affected defendants.”

FBI personnel criticized in the forthcoming IG report appear to have been involved in search and surveillance applications during the Russia investigation and possibly also witness interviews.

For example, Strzok is among the FBI agents who interviewed then-national security adviser Michael Flynn in January 2017. (Flynn later pleaded guilty to lying to federal investigators.)

Strzok also appears to have been involved in preparing Foreign Intelligence Surveillance Act applications related to the Russia probe. Whether any of those relate directly to Manafort is unclear, although the FBI placed one of Manafort’s associates, Russian-Ukrainian national Konstantin Kilimnik, under court-ordered surveillance.

Defendants in FISA cases often seek the underlying applications, though none are known to have persuaded a judge to turn them over. But Trump's February decision to release a House GOP memo offering details on the FISA applications against ex-Trump campaign adviser Carter Page may have partially declassified those applications.

At the moment, Manafort is the only defendant in a case Mueller has brought who is contesting the charges. The rest have either entered guilty pleas or are Russian businesses or Russian nationals believed to be overseas.

However, Flynn’s supporters and family members have urged him to seek to reverse his guilty plea by arguing that new revelations of alleged FBI misconduct were unknown to him last December. Even though Flynn already admitted guilt, Judge Emmet Sullivan ordered prosecutors to provide Flynn with all exculpatory evidence that could mitigate his punishment.

Such discovery orders following a guilty plea are uncommon, but Sullivan is a stickler on the issue after overseeing the corruption trial of the late Sen. Ted Stevens (R-Alaska). His conviction was vacated after prosecutors withheld evidence that could have aided the defense.

For now, though, there’s no sign Flynn plans to try to force prosecutors to fork over more information than they’ve given up. His attorney, Robert Kelner, declined to comment.

So far, Manafort’s defense team has filed just one discovery motion: asking that prosecutors cough up unredacted copies of affidavits used to obtain search warrants last year, including ones for Manafort’s Alexandria, Virginia, condo and a storage locker. Manafort’s lawyers, Kevin Downing and Thomas Zehnle, filed a motion Friday night asking that evidence taken from the locker be suppressed.

Eliason said that while the defense could persuade a judge to require more disclosure about bias or misconduct by investigators, introducing those issues at trial would be difficult.

“Even if you can make the case that several years ago there was misconduct by one agent involved, it would be hard to raise unless you can show they manufactured evidence or made up facts you got into in your trial,” Eliason added.