Paul Manafort wants to see more records of conversations between Special Counsel Robert Mueller and Deputy Attorney General Rod Rosenstein on the scope of the Russia probe.
Manafort lawyer Kevin Downing argued for that they and the court were entitled to additional Justice Department records in a sometimes contentious federal court hearing Thursday on Manafort’s motion to have the indictment against him thrown out. Manafort, Trump’s former campaign chairman, claims the order naming Mueller special counsel is a violation of DOJ regulations. Manafort also argues that Mueller’s investigation has exceeded the authority granted to him by exploring Manafort’s business dealings in Ukraine.
Downing, at times, appeared frustrated with U.S. District Judge Amy Berman Jackson’s lines of questioning. At one point, he said the hypotheticals the judge was posing were forcing him to dig himself into a hole.
Jackson had some pointed questions for Mueller’s team — which was represented in that portion of the hearing by Michael Dreeben — as well.
She zeroed in on the gap of time between the May 17 order that named Mueller and the August 2 internal memo by Rosenstein that prosecutors have since released, with redactions, that said both Russian election meddling and Manafort’s Ukraine work had always been within Mueller’s purview.
What was the point of the August 2 memo, Jackson asked Dreeben.
“Precisely because we saw that this day would come,” Dreeben said, meaning that they anticipated that a defendant would seek to challenge the charges against him by pointing to the May appointment order.
Manafort, who served as Donald Trump’s campaign chair for several months in 2016, has been charged with an assortment of financial crimes as well as failure to disclose foreign lobbying. He has pleaded not guilty.
Manafort’s attorneys have argued that since those allegations stemmed from lobbying work in Ukraine that predated Manafort’s stint on President Trump’s campaign, they are outside the scope of Mueller’s Russia investigation. Manafort is specifically challenging a line in the appointment order that says Mueller is authorized to investigate “any matters that arose or may arise directly from the investigation,” arguing that it is inappropriately broad.
Downing argued Thursday that if Mueller and Rosenstein had been in consultation about expanding the scope of the investigation, as the Justice Department regulations require, then there should be documentation of the conversations that happened prior to the August 2 memo.
“Where is the rest of the record?” he said.
Jackson asked Downing about the possibility that Manafort’s Ukraine work was already being investigated at the time the probe was handed over to Mueller. Downing claimed that the public record showed that that wasn’t the case, and said disclosure of other records of Mueller and Rosenstein’s discussions would help clear up the speculation.
At one point, Jackson brought up a search warrant executed just 10 days after Mueller’s appointment. The warrant references details about the Ukraine allegations. Jackson appeared skeptical that the investigation had been expanded in just the ten days after Mueller was appointed.
When it was Dreeben’s turn in front of the bench, Jackson pointed out that the August 2 memo came after search warrants had been executed for Manafort. Jackson asked whether he should have to demonstrate what had been memorialized about the scope of the investigation by then.
Dreeben assured her that Mueller’s team had complied with the regulations requiring them to consult with Rosenstein. He said requiring that prosecutors publicly pull back the curtain on their investigation in that way would be “extraordinary.”
The second half of Thursday’s hearing was about two other motions Manafort has filed: one arguing that two counts related to his foreign lobbying allegations were duplicative, and another motion seeking to dismiss a money laundering count that was connected to his failure to disclose his Ukraine work.
Nothing the level of fatigue that had set into the courtroom by late morning, Jackson wondered whether those denser arguments should have been heard first.