Manafort Attorneys Challenge Authority of Acting Deputy AG

ALEXANDRIA, Va. (CN) – A week after Special Counsel Robert Mueller responded to Paul Manafort’s request to shed charges against him, attorneys for the former Trump campaign chairman’ renewed their efforts by challenging the authority of acting Deputy Attorney General Rod Rosenstein.

In a 27-page motion filed Monday in federal court, Manafort’s attorneys Kevin Downing and Thomas Zehlne, tread familiar ground as they zeroed in on Rosenstein’s authority to appoint Mueller and offered their response to Mueller’s April 11 motion rejecting claims of overreach.

In that motion, Mueller’s team argued Manafort’s alleged misconduct involving payments received from the Ukrainian government falls squarely within the scope of authority granted the special counsel by Rosenstein.

But in their latest filing, Manafort’s attorneys argue Mueller was granted one scope of authority in May 2017, and then saw it expanded three month later, when Rosenstein sought to clarify the Mueller’s jurisdiction.

The memo permitting investigation into possible coordination between the Russian government and members of Trump’s campaign, contained one paragraph allowing for a “catch-all grant of jurisdiction” Downing said.

The memo’s “vague” phrasing granting permission to investigate matters “that arose or may directly arise,” is problematic, he argued.

“It came to include, months after the fact, a potpourri of purported misdeeds that have nothing to do with alleged coordination between the Trump campaign and the Russian government,” he said.

Downing also questioned special counsel’s defense of itself on April 11, whereh Weissman said was their team was “subject to politically accountable oversight.”

This is “legally irrelevant,” Downing said.

“The special counsel regulations do not say that [Rosenstein] can exceed his appointment authority so long as he offers mid-prosecution assurances of oversight,” he wrote. “Rather, they permit [Rosenstein] to grant special counsel ‘original jurisdiction’ only for the “specific factual matter.’ The notification and consultation requirements [Mueller] identifies impose obligations in addition to that limit on authority.”

“The Special Counsel cannot choose the provisions of the regulations he likes and ignore the others,” Downing wrote.

Manafort’s attorneys also take issue with Mueller’s “failure to produce [additional] evidence of communication” between himself and Rosenstein.

“The special counsel cannot rely on unsupported representations about dialogue between [Rosenstein] and [Mueller] to prove “oversight” by the acting attorney general instead of actually producing that evidence,” Downing writes. “At the very least, Mr. Manafort is entitled to discovery about those other communications.”

Lastly, there’s the timing of raids on Manafort’s Alexandria, Virginia home last July.

“The August memorandum is dated after the issuance and execution of four search warrants…the later Memorandum cannot retroactively provide the ‘specific factual statement of the matter to be investigated’ to authorize the warrants,” he wrote. “Jurisdiction must be established at the outset…at a minimum, the fruits of those warrants must be suppressed.”

Even if Rosenstein granted Mueller original jurisdiction which include matters that “arose or may arise directly from the investigation,” Manafort’s indictment “does not even fall within that expansive grant of authority,” his attorneys argue.

“The [indictment’s] allegations do not “arise directly from” the [Mueller] investigation. The phrase ‘arise from’ requires, at a minimum, that any new charges cover conduct discovered as a result of his original investigation,” Downing writes.

Any ties Mueller alleges exist between Manafort and “Russian-associated” or “Russian-backed persons” are equally unfounded, the motion states.

Manafort’s charges stem from consulting work he did nearly a decade before the Trump campaign launched and services to Ukraine from 2010 to 2014 came long before any involvement with the campaign.

“They cover work in Ukraine, not Russia,” Downing emphasizes. “They say nothing about any supposed coordination between the Russian government and the Trump campaign. That Mr. Manafort was at one point associated with the [Trump] campaign is not enough.”

Manafort’s attorneys also raised issue with Mueller’s appearance before a grand jury as the indictment was underway.

Mueller is not a lawfully appointed “attorney for the government” entitled to appear before a grand jury, or sign the indictment, under Federal Rules of Criminal Procedure, Downing argues.

Though Rosenstein testified before Congress and told lawmakers he believed Mueller conducted himself consistently within the scope of the investigation, those remarks simply don’t match up with the “scope of permissible original jurisdiction,” the motion states.

Manafort’s February superseding indictment came two months after Rosenstein’s December 2017 testimony to the House Judiciary Committee and according to Downing, that testimony showed that without Mueller’s “impermissible participation,” Rosenstein would have likely charted a different path to the investigation.

Manafort’s trial before Judge T.S. Ellis III at the federal court in Alexandria is scheduled to begin July 10.

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