An Outsider’s Guide to the Manafort Cases

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The Friday morning press congregation outside the Alexandria EDVa Courthouse will likely continue as United States v. Paul J. Manafort, Jr. moves towards its July 10, 2018 trial date in Judge Ellis’ courtroom. The Court heard arguments on Manafort’s Motion to Dismiss the Indictment on May 4, 2018. The parties will be back before Judge Ellis on May 25, 2018 for argument on the Motion to Suppress Residence Search Evidence. Motions in limine will be heard on June 29, 2018. The Alexandria Indictment Case (1:18cr0083-TSE) is intertwined with the original Manafort Indictment pending in the federal court in the District of Columbia (1:17cr0201-ABJ). The DC Criminal Case is scheduled for trial starting September 17, 2018. Manafort filed a related DC civil case (1:18cv011-ABJ) which was dismissed on a Rule 12(b)(6) motion. The Search Warrants Manafort appeared on the radar screen as early as 2014 in an underlying investigation. On July 25, 2017, Judge Buchanan approved a search warrant, supported by a 78-paragraph Affidavit, that authorized the FBI’s search of Manafort’s Alexandria condominium. The searches yielded a motherload of electronics, including an iMac and a MacBook, two iPads, four iPhones and seven iPods, and multiple thumb drives and additional storage devices. There possibly have been as many as seven Manafort-related warrants. The DC Criminal Case and Manafort’s Civil Case In late October 2017, the Special Counsel filed an Indictment in the D.C. federal court naming Manafort and his business associate, Richard Gates. A Superseding Indictment followed in late February 2018. The lead allegations in the superseding 5-count indictment against Manafort (co-defendant Gates had reached a plea deal) are Conspiracy against the USA and a Money Laundering Conspiracy. A week later, Judge Berman Jackson entered her Scheduling Order that sets the September 17, 2018 trial. Manafort has filed in the DC Criminal Case a Motion to Dismiss the Indictment. He also has filed Motions to Suppress the Search Evidence. Manafort’s Civil Case against the Department of Justice filed in the DC federal court claimed that (1) appointment of the Special Counsel was an ultra vires act, and (2) the Special Counsel’s conduct indicting Manafort is beyond his jurisdiction under the Appointment Order. This Civil Case was reassigned to Judge Berman Jackson. The Government filed a Rule 12(b)(6) Motion to Dismiss, which the Court granted on April 27, 2018. Judge Berman Jackson’s Opinion dismissing Manafort’s Civil Case rejects the use of a civil case to challenge a criminal indictment. She opines that Manafort has sufficient available options in the criminal matters to make his arguments. She is careful in her Opinion not to explore the merits of Manafort’s substantive arguments tied to the criminal case. The EDVa Indictment On February 22, 2018, an EDVa Grand Jury returned a 32-count indictment against Manafort and Gates (Gates has reached a plea agreement, which reduces the active counts to 18). The counts in this Indictment include multiple counts of tax evasion and bank fraud. The Special Counsel crossed the river to Alexandria because Manafort would not waive a venue objection to the added counts being brought in the DC federal court. The EDVa case is before Judge Ellis. Manafort filed in the EDVa Court essentially the same Motion to Dismiss the Indictment and Motions to Suppress as he filed in the DC Criminal Case. Judge Ellis heard arguments on the Motion to Dismiss on his Friday, May 4, 2018 docket. The judge has taken the motion under advisement and has ordered the Special Counsel to provide him on an ex parte basis an unredacted copy of the August 2 Scope Memorandum. Manafort’s Motions to Dismiss the Indictments Manafort’s current Motions take aim at the Department of Justice’s appointment of the Special Counsel and the scope of the Special Counsel’s jurisdiction under the Appointment Order, including supplements to the Order. The focus seems to have moved to the 4-page August 2 Scope Memorandum, a confidential memorandum from the Acting Attorney General to the Special Counsel. This memorandum is a supplement to the original Order. The Special Counsel’s brief describes the memorandum as “classified and contains confidential and sensitive law enforcement information that cannot be publicly disclosed.” Only a redacted copy was provided to the Court and Manafort’s counsel. Recall that in March of last year then-FBI Director James Comey testified before the House Intelligence Committee. In May 2017, Acting Attorney General Rod Rosenstein appointed the Special Counsel. Under the Appointment Order the Special Counsel “is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017,” including: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a). Manafort contends that this Appointment Order exceeds the Attorney General’s powers; but if the Order is within the powers, the Special Counsel’s indictment of Manafort is nonetheless outside the boundaries of the Appointment Order. The catch-term in Manafort’s briefs is the “absence of political accountability.” The Special Counsel responds that once appointed, the Special Counsel has “the full power of a United States Attorney to investigate and prosecute cases within [the Special Counsel’s jurisdiction.]” The brief’s argument is that The Acting Attorney General appointed the Special Counsel, defined his jurisdiction, understands the scope of his investigation, and has specifically confirmed that the allegations that form the basis of this prosecution—i.e., that Manafort committed crimes “arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych” (August 2 Scope Memorandum at 2)—are within the Special Counsel’s jurisdiction. In these circumstances, no serious question of political accountability can be raised. In the DC Criminal Case, Judge Berman Jackson heard 2½ hours of arguments on Manafort’s Motion to Dismiss on April 19, 2018. A Politico writer reported that the judge “raised doubts about the scope of order used to appoint special counsel Robert Mueller.” Judge Berman Jackson has not yet ruled. In the EDVa Indictment Case, Judge Ellis heard arguments on May 4, 2018, and he should rule on Manafort’s Motion to Dismiss shortly after he reviews an unredacted copy of the August 2 Scope Memorandum. News media reported that Judge Ellis “was skeptical over the ability of special counsel Robert Mueller to bring charges against … Manafort.” The specific counts in the two Indictments are quite different, so it would not be a great surprise if the rulings vary. For example, Judge Berman Jackson could rule that the 5 remaining counts against Manafort in the DC Criminal Case are within the scope the Special Counsel’s delegated authority, while Judge Ellis might place some or all of the 18 counts in the EDVa Indictment outside that authority. Remaining Roads to Trial Assuming at least some of the counts in both indictments survive Manafort’s Motions, the two matters then head to trial roughly two months apart. Judge Ellis will hear Manafort’s Motions to Suppress on May 25, 2018, and then consider motions in limine on June 25, 2018. Trial begins in his courtroom on July 10, 2018—this is an estimated 2-week trial. Judge Berman Jackson’s Scheduling Order identifies a hearing on pre-trial motions set for May 23-24, 2018. Briefing on in limine motions should be completed by July 30, 2018, with trial to commence on September 17, 2018.