ALEXANDRIA, Va. (CN) – Special Counsel Robert Mueller asked a federal judge Monday to deny Paul Manafort’s request for a hearing exploring “allegedly improper disclosures” made by the media, which the former Trump campaign chairman says ruined his chances for a fair trial.
Monday’s request came in a flurry of filings at the federal Virginia Court where Manafort faces trial on bank and tax fraud charges beginning July 10.
According a 19-page motion filed by Andrew Weissman, special assistant to special counsel Robert Mueller, Manafort’s claims of prejudice fall short since his “sampling of press reports” don’t point to specific information about his grand jury investigation last year.
“The government attorneys and agents involved in this case understand and respect their duty to preserve grand-jury secrecy as required by Rule 6(e) [of the Federal Rule of Criminal Procedure] and to avoid public disclosures that could jeopardize a defendant’s right to a fair trial,” the motion states. “Manafort’s speculative claim of improper conduct falls far short of the showing necessary to warrant a hearing on potential violations of Rule 6e or of his constitutional rights.”
Any concerns of pretrial prejudice can be resolved during jury selection, Weissman wrote.
“A pretrial hearing on alleged government leaks, which would itself generate publicity on the very matters that Manafort finds prejudicial, is unwarranted,” the motion states.
A grand jury returned an indictment against Manafort in February, charging him on multiple counts including filing false tax returns, failure to report foreign bank accounts and bank fraud conspiracy.
This month, Manafort’s attorney Kevin Downing asked U.S. District Judge T.S. Ellis III to dismiss the indictment altogether due to multiple “leak-based” reports containing attributions from “numerous unidentified government officials.”
But a closer look at the news articles Downing cited unravel that argument, Weissman says.
The first article – an October 2016 NBC News story announcing the FBI’s preliminary inquiry into Manafort’s bank accounts – featured comments from “law enforcement and intelligence sources.”
It also states the inquiry had not yet “blossomed into a full-blown criminal investigation” and notes that the FBI did not comment.
“It does not mention the convening of, or proceedings, before any grand jury” Weissman writes.
A story in The New York Times quoted “four current and former American officials” with knowledge of “phone records and intercepted calls” showing members of Trump’s campaign team in frequent contact with senior Russian intelligence officials in 2015 also fails to mention anything about grand jury proceedings.
Three stories published by the Associated Press between March and April 2017 which described Manafort’s work in Ukraine before joining Trump’s campaign and his ties to Russian oligarch Oleg Deripaska didn’t prejudice Manafort either, Weissman said, since the sources were listed as “several people familiar with payments.”
Manafort is also described as being “part of a broad investigation to recover stolen Ukrainian assets” in the articles and it’s noted “that no criminal charges had been filed in the case,” the motion states.
Five more articles Manafort’s legal team cites postdate Mueller’s appointment to the Russia probe.
Weissman says a threshold question must be answered to prove prejudice: Did information disclosed involve any specific matter occurring before the grand jury? He noted courts have emphasized federal rules “should not be read to require [that] a ‘veil of secrecy be drawn over all matters occurring in the world that happen to be investigated by a grand jury.”
It’s also a matter of who the officials are and what rules they are subject to, Weissman says. References to “officials” or “American officials” in media reports could very well be individuals not subject to Rule 6e’s restrictions, he says.
Manafort’ request that the court “conduct an inquiry to identify and punish” government officials who disclosed the information, including suspected classified information, should also be ignored, the motion states.
“That would place the court in an inquisitorial role, that is, to say the least, unusual,” Weissman writes. “While federal courts have some authority to investigate misconduct [in grand jury proceedings] they generally do not have the power to act as investigators or prosecutors of misconduct.”
Mueller made another request in a separate motion Monday evening to file under seal an unredacted version of their response to Manafort’s request to suppress evidence from a raid on his Virginia home.
“To respond fully to the arguments in Manafort’s motion to suppress, the government needs to refer to portions of the warrant materials that remain under seal in this court and that are the subject of ongoing litigation in the District of Columbia,” Weissman says in the motion. “At the same time, the government is filing on the public docket a redacted version of its memorandum that blacks out those references but otherwise strives to minimize the amount of material withheld from the public.”
Allowing the government to file an unredacted version of its memorandum under seal would “balance” the government’s, the public’s and even Manafort’s own interests, the government says.
Also late Monday, Mueller asked that Judge Ellis deny Manafort’s motion to dismiss the charge of failure to report a foreign bank account.
Manafort contends it should be barred by the statute of limitations since the account associated with that part of the indictment was from 2011 and 2012.
But according to federal code, the statute of limitations can be suspended when a grand jury is investigating an offense and if evidence of that offense is being investigated in a foreign country.
According to Weissman, in June 2017 the government transmitted a request to Cyprus seeking bank records, articles of incorporation and witness interviews concerning Manafort’s bank accounts there.
Late that month, a federal judge in Virginia agreed to suspend the statute of limitations as the request to Cyprus was pending. Cyprus is one of several countries where prosecutors say Manafort laundered profits from political consulting services he offered to the president of Ukraine.
Cypriot officials finally responded to Mueller’s request in September 2017 and submitted more documents to special counsel in October and November 2017 and then again last month. Those submissions did not completely fulfill Mueller’s request of Cyprus, however.
“The bottom line is that Cyprus had not fully satisfied the government’s official request when the original and superseding indictment of Manafort were returned on February 13 and 22, respectively,” Weissman notes. “As a result, no ‘final action’ had yet occurred…and the applicable statute of limitations remained suspended.”
Manafort was unaware of the existing order when he made his request to have the count tossed, Weissman adds. A copy of the order has since been provided to the defense.
A waiver of the statute of limitations cannot exceed three years.
Finally, Weissman says Manafort’s effort to suppress evidence found in his home and storage facility in Virginia should also be denied.
Manafort’s attorneys argue the evidence was collected in bad faith because the search warrant was overly broad and did not specify which materials feds wished to seize. But Weissman says the warrant “enumerated 11 specific categories of records that were subject to seizure, all of which must relate to the criminal offenses listed alongside those categories in the warrant.”
Claims that federal agents mishandled materials seized from his residence are also false, according to Weissman.
“The government ‘imaged’ electronic devices onsite so that Manafort could retain the originals, has used a filter team to protect attorney-client and other privileges, and has offered throughout the discovery process to provide Manafort with materials that the government has identified as likely irrelevant to the current prosecution,” the motion states.
Manafort’s attorneys have simply misread the meaning of the search warrants, Weissman says.
While Manafort claimed seizure of an iPod and iPod Touch were overly broad and didn’t correspond to the investigation, Weissman says the devices “plainly qualify” as storage media devices eligible for search and seizure as noted in the warrant.
Mueller also contends that evidence found in a storage unit should not be suppressed simply because the person who gave authorities access to the unit was not Manafort himself, but a salaried employee of Manafort’s.
According to a precedent established by United States v. Matlock, “consent need not come from the target of a search.”
Weissman writes: “It may instead be provided by a third party who possessed common authority over or had other sufficient relationship to the premises or effects sought to be inspected,” adding the employee was listed as the occupant on the storage unit’s lease agreement.