Darren Samuelsohn, Josh Gerstein
Robert Mueller is on an early winning streak.
Stacked with some of the country’s premier prosecutors, the special counsel has beaten back a pair of preliminary attempts to block his subpoena power and limit who he can question as a potential witness. In July, Mueller’s team also managed to win approval to execute a no-knock search warrant—unusual in a white-collar case.
But as the criminal case against former Donald Trump campaign officials Paul Manafort and Rick Gates speeds toward a possible spring 2018 trial, Mueller’s team is bracing for an array of challenges to its authority.
The battle lines are already taking shape.
Kevin Downing, Manafort’s lead attorney, submitted a document Friday indicating that he anticipates filing pre-trial motions that question “the legal basis for and sufficiency of the charges, the suppression of evidence improperly obtained by search warrant, subpoena or otherwise.” Downing also said he may try to prevent Mueller’s prosecutors from presenting some of their evidence during the criminal trial.
Mueller’s team responded to the court Friday with a brief note saying they would need three weeks to present their case, side stepping what will be an intense round of legal jockeying and attempts to undermine the way the special counsel has conducted its investigation.
“’Distort, detract, deny’ is a common playbook for defense lawyers,” said Julie Myers Wood, a former Whitewater prosecutor. “And if the allegations are serious here, I wouldn’t expect the lawyers to sit back or withhold any tool in a quest to undermine the perception of Mueller’s legitimacy.”
Past independent counsel and special prosecutor cases are rife with legal battles that can come to rival the actual investigation. Michael Deaver, a former senior aide to President Ronald Reagan, tried without success to halt an independent counsel conflict-of-interest probe into his post-White House work by claiming the investigator held a grudge against him. During the Iran-Contra probe, Lt. Col. Oliver North similarly failed to get the Supreme Court to consider his bid to block the investigation.
Some court fights in special prosecutor cases have even produced important legal precedent.
The Supreme Court in a unanimous 1974 opinion rejected Nixon’s attempts to use executive privilege to withhold private presidential tape recordings and other materials despite a subpoena. In 1998, the U.S. Court of Appeals for the District of Columbia ruled that government lawyers ensnared in Starr’s investigation of the Clinton White House didn’t have the same attorney-client privilege as private attorneys.
In the Mueller investigation, the probe itself may be ripe for legal questions. He’s not operating under the independent counsel law that generated Whitewater, Iran-Contra and 19 other investigations dating back to the post-Watergate years – because it lapsed in 1999.
Instead, he’s working under Justice Department regulations that allow for an outside lawyer to step in when the typical investigation process “would present a conflict of interest for the Department or other extraordinary circumstances.”
The situation is similar to the one that arose in 2003 when U.S. Attorney Patrick Fitzgerald was tapped to investigate whether the George W. Bush White House deliberately leaked the identify of CIA operative Valerie Plame Wilson. That case produced only one indictment, and a jury in 2007 convicted Vice President Dick Cheney’s former chief of staff, I. Lewis “Scooter” Libby, of four counts of perjury, obstruction of justice and making false statements (Bush later commuted Libby’s prison sentence).
Trump himself told the New York Times in July that he would consider it “a violation” if Mueller’s investigators looked into his personal finances. And the president’s personal attorney, Jay Sekulow, told POLITICO on Thursday he is primed to lodge formal objections with either Mueller or Deputy Attorney General Rod Rosenstein if the Russia investigation took a wide or unexpected detour into issues like an old Trump real-estate deal.
“We’d view that as outside the scope of legitimate inquiry,” Sekulow said. “We’d raise it.”
Robert Ray, who succeeded Starr as the Clinton independent counsel, said Mueller is on solid ground fighting off most jurisdictional challenges because his office is technically a part of the Justice Department. But Ray still expects defense attorneys to give these questions a go.
“Whenever you operate in uncharted legal territory, and this would be an example, you’d expect defense lawyers to push the envelope and edges to find out where the judiciary is coming out,” he said.
In a case like Manafort’s, Mueller may be wise to hand it over to DOJ for prosecution, said Ronald Rotunda, a Chapman University law professor who served as a paid consultant during the Starr investigation.
“It is one thing to investigate if the president was – or his top aides were – in collusion with Russia in some nefarious way,” Rotunda said. “It is quite another to investigate if some former aide hasn’t paid his taxes.”
But Rotunda also said a court is unlikely to give a defendant standing to object to Mueller’s jurisdiction. “The only entity that could object is the DOJ,” he said.
Attorneys for Manafort and Gates have signaled they intend to fight hard against the criminal charges in a case that U.S. District Judge Amy Berman Jackson has proposed should go to trial starting May 7. Wary of the intense media coverage the Russia investigation has already generated, Jackson also told the attorneys for Mueller and the defense that she’s considering issuing a gag order that limits the public statements both sides may make about the case.
Mueller has repeatedly gotten his way in the Manafort investigation so far.
Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia ruled last month in the special counsel’s favor when he tried to seek grand jury testimony from an attorney for Manafort and Gates. They were arguing the request would impede on attorney-client communications, but Howell ruled that an exception applied because the lawyer’s actions may have involved an alleged crime or fraud.
Howell also in a separate opinion unsealed last month rejected a real estate agent’s bid to quash a subpoena for testimony and records about a Manafort real estate transaction involving the Alexandria, Virginia, condominium that FBI agents raided in July.
Mueller’s office is trying to capitalize on its early wins. When they filed a pleading on bail issues Tuesday, prosecutors attached a copy of Howell’s ruling in the attorney-client privilege fight and said it “confirms the strength of the government’s evidence that the defendants caused to be made false and misleading statements to the Justice Department.”
Pushing back in their first filing in the criminal case Thursday, Manafort’s lawyers urged Judge Jackson not to make too much of Howell’s conclusion that a prior lawyer for Manafort was used to perpetrate a crime.
The Manafort attorneys, Downing and Tom Zehnle, countered that Howell was only required to find at first blush a case of fraud, not the exacting standard used at a criminal trial.
“As the Court is aware, that was a substantially lesser burden of proof to meet than which the Office of Special Counsel is now faced; i.e., proof beyond a reasonable doubt. Indeed, to argue that a decision made on evidence that the defense was not even allowed to see and contest establishes the strength of the case against Mr. Manafort is simply not credible,” the defense lawyers wrote.
Richard Ben-Veniste, a former Watergate prosecutor, said that he expected defense lawyers representing indicted defendants to keep on challenging Mueller’s authority and jurisdiction. “I would also expect such challenges to be unavailing,” he said, “as Mueller’s authority to act is on firm legal ground.”