ALEXANDRIA, Va. (CN) – Attorneys for former Trump campaign chairman Paul Manafort on Monday renewed their call that evidence found in Manafort’s home and storage unit be suppressed and that a federal judge reconsider the legal theory used by special counsel Robert Mueller to expose the findings.
Manafort’s attorney, Kevin Downing, has argued that the search warrants issued on his client’s Virginia home and storage unit were improperly made because evidence collected there was done in bad faith.
Downing contends Manafort’s Fourth Amendment rights were violated when authorities relied on a salaried Manafort employee – instead of Manafort himself – to gain access to the storage unit.
At his Alexandria, Virginia home, Downing says Manafort’s rights were violated because of the warrant’s issued to search his Alexandria, Virginia home were overly broad.The attorney specifically objects to a provision in the warrant requiring the removal of all media storage devices found in the home like cell phones, computers and iPads.
But on Monday, Downing filed a new challenge to special counsel’s May 14 motion in which Andrew Weissman, special assistant to special counsel, argued law enforcement was within its rights to search the unit and residence thanks to third party consent established in United States v. Matlock.
In Matlock, Weismann cited the ruling’s take on consent, stating it “need not come from the target of a search” and further, that common authority doesn’t necessarily require “mutual use.”
In order to follow this theory, it would mean U.S. District Judge T.S. Ellis III – the judge overseeing Manafort’s trial in Virginia — must follow Ninth Circuit precedent “that no other appellate court has adopted,” Downing argues.
It boils down to how common authority and mutual use diverge, he explained. Common authority is the principle which permits a person to give authorities consent to search another individual’s property.
But according to Downing, common authority requires “evidence of mutual use by one generally having joint access or control for most purposes.” While Weissman relied on Matlock to legitimize the search warrants, Downing argues that theory ignores precedent established in United States v. Buckner and United States v. Whitfield.
In Whitfield, it was determined that even if a third party’s ability, or legal right, to access a property established joint access or control, it does not establish mutual use.
Notwithstanding “the Supreme Court’s and the Fourth Circuit’s plain language, the Special Counsel argues that mutual use is satisfied by a showing that an ‘employee is authorized to enter a location to perform his [job] duties and in fact performs those duties there,” Downing writes.
“An employee’s authority to enter a location to do his job does not constitute mutual use, and none of the Special Counsel’s cited cases hold otherwise,” the filing states.
Though Mueller’s team argues the Manafort employee who let authorities into the unit “had the right and capability to gain access to [it] at anytime without Manafort’s knowledge or permission,” this position is “legally incorrect,” Downing said.
It conflates the right to enter the storage unit with “the informant’s physical capability to do so,” he adds.
“Just as a hotel manager’s access key would give him or her the ability to enter a guest room without permission… the informant’s possession of the key did not also confer upon him the right to enter without permission, just as the hotel manager’s possession of a guest room key does not confer upon him the right and authority to consent to a search of a guest’s room,” he notes.
There has also been “no evidence … in the FBI affidavit or elsewhere that the FBI agent took reasonable steps to investigate the nature of the third party’s authority,” he said.
In a separate filing entered at the U.S. District Court for the Eastern District of Virginia, Downing also claims the authorities followed the wrong hunch in order to obtain a warrant to search Manafort’s home.
“Based on information that was obtained from a former employee of Davis Manafort Partners, the government learned that Mr. Manafort had a desktop computer in his home office, used electronic media in his business, and kept a drawer of no-longer-used electronic equipment (which he donated to charity) at his prior residence,” the motion states. [Emphasis original]
Instead, authorities seized a broad range of devices from his current home, including 13 personal cameras that he says are not related to the investigation whatsoever.
In another filing, Downing announced Manafort’s withdrawal of a request dismissing one of the charges on his indictment: failure to report a foreign bank account.
Manafort initially argued the charge should be barred by the statute of limitations since the account associated with that part of the indictment was from 2011 and 2012.
According to special counsel, the statute was suspended once it was established that a grand jury was investigating an offense that may have occurred in a foreign country.
For now, Manafort has asked to “reserve all rights to challenge this particular count (and any other counts) in the superseding Indictment in subsequent proceedings” that were not required to be raised under Rule 12(b) of the Federal Rules Case of Criminal Procedure.
“The basis for such a motion was not reasonably available to the defendant to raise to the court in a pretrial filing,” Downing writes.
A motion hearing originally scheduled for May 25 was also rescheduled over the weekend. It has been rescheduled for June 8.
In another filing Monday night, Downing again asked Judge Ellis for a hearing to consider the impact “unauthorized leaks” have had on Manafort’s chances for a fair trial.
Citing anonymous attributions given to reporters at The Associated Press, The New York Times and CNN, Downing contends Mueller’s resistance to discuss the leaks appears suspect.
For months, Downing writes, the defense has asked Mueller to produce any materials it might have regarding unauthorized leaks from government officials but none have been provided.
Weissman said in a May 14 motion that a hearing on the leaks would be speculative and even potentially damaging to Manafort’s own trial. Weissman cast off attempts by Downing to dig into the source of the leaks, saying that an “inquisitorial” punishment of leakers was not the court’s role.
But Downing rejects that reasoning.
“As a general proposition, prosecutors are interested in investigating potential wrongdoing,” he said, before adding “apparently, Special Counsel’s office is concerned that prosecutors on the trial team could be called to provide testimony.”
The calls to expose the leakers and the alleged negative impact leaks have had on Manafort’s impending trial echo allegations made by President Donald Trump early Monday.
Trump contends that a mole was placed in his 2016 presidential campaign. He has since requested the FBI and the Justice Department to conduct an investigation.
“Just last week, government officials leaked more classified information about the FBI counterintelligence investigation of the Trump campaign to The New York Times,” Downing wrote. “The leakers confirmed that only a small group was privy to information about the investigation. Therefore, a leaks investigation in this regard would be limited in scope and manageable.”
Downing also echoed Trump’s calls for stiff punishment for leakers.
“If the media reports of these leaks of classified information are accurate, they constitute felonies. And if the leaks were/are false, they constitute an inexcusable public smear campaign,” Downing says. “Either way, the leaks constitute outrageous government conduct intended to deprive Mr. Manafort of his Fifth and Sixth Amendment rights to due process and a trial by an unbiased jury of his peers.”