In a footnote, Mueller sends a warning shot to Trump
Paul Manafort’s legal strategy for evading the charges filed against him by special counsel Robert Mueller was fairly straightforward. His attorneys argued, among other things, that many of the charges Manafort faces — which include fraud, tax evasion and conspiracy — are largely outside the scope of Mueller’s authority. After all, Mueller was appointed to investigate collusion between Russia and the Trump campaign during the 2016 race. What does Manafort’s allegedly having laundered money by buying real estate in Brooklyn have to do with any of that?
Late Monday night, Mueller’s team answered, in the form of a 53-page response to Manafort’s motion to dismiss the charges. Not only did Mueller explain why he had the authority to prosecute Manafort for alleged financial crimes, but, in a footnote, he explained why he also has the authority to investigate any attempts to obstruct his probe — including, presumably, by the president of the United States.
The broad argument made by Mueller’s team in its response memo goes something like this. When he was appointed by Deputy Attorney General Rod Rosenstein in May (after Attorney General Jeff Sessions’s recusal from any investigations involving the 2016 presidential campaign), Rosenstein issued a public outline of the scope of Mueller’s authority. We’ve walked through this before; it includes three main things:
- “Any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
- “Any matters that arose or may arise directly from the investigation.”
- “Any other matters within the scope of 28 C.F.R. § 600.4(a).”
That section of the Code of Federal Regulations — 28 C.F.R. § 600.4(a) — allows Mueller to investigate “federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation,” including lying to authorities.
Mueller’s response to Manafort notes that his having financial ties to Russian interests alone falls under the purview of the first point above.
“Manafort joined the Trump campaign as convention manager in March 2016 and served as campaign chairman from May 2016 until his resignation in August 2016, after reports surfaced of his financial activities in Ukraine,” the Mueller response reads. “He thus constituted an ‘individual associated with the campaign of President Donald Trump.’ … He was, in addition, an individual with long ties to a Russia- backed Ukrainian politician.”
“An investigation of possible ‘links and/or coordination’ between the Russian government in its political-interference campaign and ‘individuals associated with the campaign of President Donald Trump’ would naturally cover ties that a former Trump campaign manager had to Russian-associated political operatives, Russian-backed politicians, and Russian oligarchs,” Mueller later points out.
But the response memo also reveals that Rosenstein issued a confidential memo in August detailing areas that Mueller had the authority to investigate. Among those were specific allegations involving “crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.” Those payments are at the heart of the indictments filed against Manafort. The allegation is that he laundered the money he received and didn’t properly report its receipt or his advocacy for Ukraine.
“Nothing in the regulations [establishing the special counsel] requires that the ‘specific factual statement’ be provided publicly,” Mueller’s memo reads. Rosenstein’s private document detailing what Mueller can look into would, therefore, rebut Manafort’s claim that Mueller was exceeding his authority. After all, he was granted this specific authority in August.
What’s more, the special counsel has the ability to explore new lines of questioning as needed, Mueller’s memo argues. To maintain some independence from the Justice Department, it “must have some latitude to extend beyond the known facts at the time of a Special Counsel’s appointment or the Special Counsel would not be free of ‘day-to-day’ — or indeed minute-to-minute — ‘supervision [by] any official of the Department’” as intended in the statute. The statute gives the attorney general (or, in this case, Rosenstein) the authority to approve of lines of inquiry and prosecutions.
To that end, Mueller’s response cites the regulations establishing the special counsel.
“If the Special Counsel concludes that ‘additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.’”
And here’s where things get really interesting, in a footnote appended to that quote.
This is a direct quote from the section of the Code of Federal Regulations we noted in the third bullet point above.
There are a few ways to read this. The first is that the special counsel is preemptively rebutting any assertion from Manafort’s team that the special counsel lacks the ability to bring charges on having misled investigators. The fifth count in the superseding indictment against Manafort specifically addresses his having provided false statements to the Justice Department. This footnote reminds the reader that the special counsel can bring charges to that end, as well, though that ability is “not at issue here.”
But the footnote also serves as a broader reminder to observers: Mueller’s team has the specific authority to investigate not only false statements (to which four individuals have already plead guilty), but also broader efforts to obstruct justice or intimidate witnesses. And this isn’t a function of a private memo issued by Rosenstein in August — it’s right there in his public order giving Mueller special counsel authority.
The Mueller filing goes a step further, though. It includes a redacted version of Rosenstein’s August memo, demonstrating that Mueller was given the specific authority that Manafort contests.
But it also includes this paragraph:
“You therefore have authority to continue and complete the investigation of those matters, and additional matters described in 28 C.F.R. II 600.4(a). For additional matters that otherwise may have arisen or may arise directly from the Investigation, you should consult my office for a determination of whether such matters should be within the scope of your authority.”
This memo was dated Aug. 2, 2017. This was a little less than a month after the New York Times first reported that Manafort had joined Donald Trump Jr. and Jared Kushner in a meeting at Trump Tower involving a Kremlin-linked lawyer. The initial response from Trump Jr. to reports of that meeting contained a misleading description of its origin — a misleading description that The Washington Post later reported was dictated by President Trump himself.
That misleading response (and then-communications director Hope Hicks’s alleged assurance that emails contradicting it would “never get out”) is reportedly central to Mueller’s obstruction-of-justice investigation. In August, Rosenstein reinforced that any such obstruction investigation should be continued and completed — which Mueller made public in his filing on Monday night.
Mueller plays his cards close to his chest, and we often find ourselves in the position of trying to read his mind. In this case, we may be overestimating the message intended by footnote No. 6.
Or, perhaps, he is reminding the world — and the president — that if he sees potential obstruction of his investigation, he has the full authority to chase it down.