ALEXANDRIA, Va. – A federal judge said Friday he wants to see unredacted versions of the Justice Department memos setting the scope of Special Counsel Robert Mueller’s 2016 election probe before deciding whether to toss charges filed against onetime Trump campaign chairman Paul Manafort.
Judge T.S. Ellis III gave Justice Department attorneys two weeks to provide him with complete copies of two memos written by Deputy Attorney General Rod Rosenstein, one from May 2017, and the other, from August, that lay out the scope and ground rules for the investigation.
Ellis said he will determine whether the memos should remain under seal, or be made available to the public, once he receives them.
Late Friday the judge released a single page order stating he is taking the request to dismiss the charges against Manafort “under advisement.”
Manafort faces no charges related to the 2016 presidential election. He is accused in cases filed both in Alexandria, Virginia and Washington, D.C. of hiding the work he did for and the money he made from a Russia-friendly political party in Ukraine and former Ukrainian president Viktor Yanukovych.
In Virginia, he is also accused of concealing foreign bank accounts, falsifying his income taxes and failing to report foreign bank accounts.
In Washington, Manafort faces counts of conspiracy to launder more than $30 million, making false statements, failing to follow lobbying disclosure laws and working as an unregistered foreign agent.
But his attorneys argue that the charges should be dropped because they don’t stem from the matter Mueller was charged with investigating.
On Friday morning Ellis appeared inclined to side with Manafort’s defense team, pressing Deputy Solicitor General Michael Dreeben, who joined the case as counsel Thursday night, to justify the filing of the charges in the context of Mueller’s probe.
“I don’t see what the relation is … none of the information [in the indictment] has anything to do with the Russian government or the Trump campaign because all of the allegations long predate any contact [Manafort had] with the campaign,” the judge said.
Dreeben said the Justice Department granted Mueller the authority to investigate “links and possible coordination of individuals” associated both with the Trump campaign and Russia, and this made delving into Manafort’s past financial transactions relevant.
“We just want the full scope, your honor. Those leads that we investigate will help us understand who he knew, who he was paid by and who handled any money,” Dreeben said.
The language of the May 2017 order appointing special counsel still seemed problematic, Ellis said.
Provision C in the order states “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.”
But the counts of bank and tax fraud didn’t all arise from the 2016 investigation, Ellis said.
The judge then turned his attention to the intent behind the indictment.
“Is it that the indictment is used to exert pressure on the defendant for Special Counsel’s use?” he asked Dreeben. “It seems to me that it could be a means to get what you want. You want Manafort to “sing” as they say on what he might know about Trump or others. The problem with that is defendants don’t always sing, but compose.”
Without seeing the orders in full, Ellis said it was “unlikely” Dreeben could persuade him that Mueller has the authority to “do whatever he wants.”
Dreeben responded by explaining that redactions were logical, necessary and in no way out of the norm.
For instance, he said, “in the May 17 order, because of the implications involving people under investigation who may never be charged, we could not convey everything there.”
Other specifics not yet seen in the memo were conveyed in face-to-face meetings with Rosenstein, however.
Ellis again insisted on the need for records to prove the prosecutor’s intent.
“We don’t want anyone with unfettered power. That includes you and the other attorneys and special counsel and that also includes the president of the United States,” Ellis said.
Manafort’s attorney Kevin Downing told the court he was convinced there are a series of hard copy records or notes Rosenstein kept which document the steps he or others took before appointing special counsel.
“Before deciding the motion, all we ask is that the government provide a written record of those activities. Rosenstein had a process to determine if there was a conflict, which gave rise to Special Counsel,” the attorney said.
“I know him,” Downing said of Rosenstein, which who he worked with for five years at the Justice Department. “He’s a stickler for written records and those records may show if he violated the regulations appointing a special counsel.”