Here is the Indictment in U.S. v. Paul J. Manafort JR. and Richard W. Gates III
Category: Prosecutors
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The first thing to ask, if CNN's Friday night report is accurate, is who leaked? Because if the leak came from the government or court staff it is almost certainly an illegal violation of a sealed court order and/or grand jury proceedings. And if it came from the defense attorney of the party to be charged, who told him or her? The whole point of sealing something is so that the public doesn't know about it. All a courthouse staffer, moonlighting as media lookout, could have legitimately told the press is that "we saw so and so going into the court's chambers" or something along those lines.
Second, why would charges be sealed in the first place? Perhaps because the prosecution is afraid that someone will flee. That is the only legitimate reason I can think of to place an indictment under seal. If it was placed under seal to give government agents the opportunity for an early morning arrest it wouldn't surprise me one bit, given Andrew Weissman's dismal track record for hardball, heavy-handed tactics. (It will be interesting to find out someday just exactly what the government told a federal magistrate in order to get that no-knock warrant to search Paul Manafort's residence.)
Is it possible that the sealing was done in order to protect a defendant from having to spend the weekend (or at least one night) in DC jail? Unlikely. For defendants who do not turn themselves in by mid-morning in DC, the possibility of a night in jail is real. But if the prosecutors really cared about that, why not bring the charges on a weekday morning and allow the defendant to turn himself in the next day? This is done all the time.
Is it possible that the pending indictment report, true or false, is a deliberate ruse to see who will attempt to flee? In other words, does the government actually want someone to try to flee? After all, flight can be used as evidence of guilt in court. Unlikely, but anything is possible with Weissman in the number two slot.
We should find something out today. Here is Politico's excellent background piece by Darren Samuelsohn.
If there are any charges, expect them to be ancillary in nature. Look for false reporting violations or false statements to government agents. More to come.
UPDATE:
The Indictment is out and we will try to get it up as soon as possible. It is obvious that the prosecutors did the right thing in allowing Paul Manafort and Rick Gates to turn themselves in and that, in all likelihood, one of the defense attorneys leaked the news to CNN. Grand jury secrecy rules do not apply to witnesses or to those who receive their information from witnesses.
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It's not every day that a federal district judge accuses the government of misleading the Court and demands corrective action. But it's happening in the Urbana Division of the Central District of Illinois. I posted here in March regarding the federal case against former Congressman Aaron Schock. Among other items of alleged government misconduct, the defense maintained that prosecutors improperly commented to grand jurors on Schock's failure to testify, in violation of his Fifth Amendment Privilege Against Self-Incrimination. The defense relied in part on an affidavit by a dismissed grand juror. After unequivocally denying the grand juror's allegation, the government clarified the record, more than six months later, admitting that government counsel "commented on or addressed Mr. Schock's testifying or decision not to testify before the grand jury" on eleven occasions. U.S. District Judge Colin Bruce was not amused, and ordered the government to review each of its previous filings "to ensure that no more false or misleading claims were made." Judge Bruce also gave the government 14 days to file a memo "detailing any further misrepresentations or misleading statements." Here is Judge Bruce's Order Requiring Government Memorandum re Misrepresentations. The government responded yesterday, denying that it had misrepresented anything to the Court, asking the Court to reconsider its finding regarding misrepresentation, and representing further that it had not intentionally made any materially misleading statements in its prior filings. Here is the Government's Compliance with the Court's October 3 Order and Motion to Reconsider. Schock, represented by George Terwillliger, Bob Bittman, Benjamin Hatch, Nicholas Lewis, and Christina Egan of McGuire Woods in DC and Chicago and by Jeffrey Lang of Lane & Waterman in Davenport, Iowa, wasted no time, not even a day, in firing back. Here is Schock's Motion to Strike or in the Alternative Leave to File a Response. Here as well is Schock's Proposed Response to Government's Compliance. In a future post, I will examine the nature of the government's comments to the grand jurors.
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According to Reuters, Deputy Attorney General Rod Rosenstein said on Thursday that there may be changes to the Yates Memo "in the near future." As discussed at length on this blog (see here, here, here, and here; see also here for an article on the Principles of Prosecution and the Yates Memo), the Yates Memo was released by the DOJ in 2015 in response to criticism that the government had failed to prosecute individuals, particularly on Wall Street, related to the financial crisis of the late 2000s. The Yates Memo responded by focussing federal prosecutors on targeting individuals and requiring that corporations provide significant information on employee conduct to receive credit for cooperating with the government. The Yates Memo states, "[t]o be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct."
According to reports, Rosenstein said, "It is under review, and I anticipate that there may be some changes to the policy on corporate prosecutions." It is unclear how far the review extends or whether possible changes extend beyond the Yates Memo and include revisions to the larger Principles of Federal Prosecution of Business Organizations contained in the U.S.A.M. Whatever changes are made, it is unlikely that the focus on individuals will diminish. Attorney General Sessions has publicly commented on his commitment to holding individuals accountable for corporate misconduct. We will have to wait, therefore, to see whether significant changes or mere reiterations of current policy priorities are on the horizon.
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Co-blogger Sol Wisenberg (here) called for Rod Rosenstein to "Hunker down Rod. Your country needs you." There are many who feared that the appointment of a special counsel would not be as neutral as Deputy Attorney General Rod Rosenstein. The appointment of special counsel/prosecutor could also delay a current investigation – after all anyone new would have to get up to speed. But the DAG outdid himself here in appointing former FBI Director Robert S. Mueller III.
The real hero of the story still remains Deputy Attorney General Rod Rosenstein, and hopefully history will remember this.
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I imagine we will know more about Rod Rosenstein's Memo, and its timing in connection with FBI Director Comey's firing, later this week. Based on the publicly available information, it appears that that when Rosenstein met with the President last Monday he was asked for his views on Saint Jim. Rosenstein no doubt articulated his disapproval of Director Comey's appallingly improper conduct during the 2016 election, a disapproval shared by legions of current and former DOJ prosecutors and FBI Special Agents. He was asked to memorialize his thoughts in a memo, and given a quick turnaround time. If this is how it played out, there was nothing wrong with the President's question, nothing wrong with Rosenstein's answer, nothing wrong with the President's request for a memo, nothing wrong with Rosenstein's decision to obey the request, and nothing wrong with the resulting memo itself. Nothing at all. Comey's conduct, as Rosenstein's Memo makes clear, was a gross deviation from standard DOJ practices, a clear overstepping of authority, and an improper smearing of an American citizen who just happened to be a major political candidate. As devoted readers of this Blog no doubt remember, I detailed Director Comey's myriad shortcomings here just after the election. To make matters worse, Director Comey refused to acknowledge his mistakes and improprieties and continued to publicly justify his shocking behavior in increasingly bizarre fashion. Some have suggested that Rosenstein's Memo "reads like an op-ed" or is "deeply troubling." I expect this kind of nonsense from the political opposition and the resisters, but when I see it from former colleagues of Rosenstein it makes we want to puke. The President is Rosenstein's superior. He asked for Rosenstein's opinion. He asked for Rosenstein to memorialize his thoughts in writing on a fast timetable. Each of these was a reasonable request. Should Rosenstein have refused the request, protesting that he needed more time to prepare a memo? He didn't need more time to detail Comey's indiscretions. Any schoolboy or schoolgirl reasonably competent in Civics could have done so.
The problems arose with what happened next. When Rosenstein learned that the White House was disseminating a false version of events to the effect that Comey's firing was solely the result of Rosenstein's Memo, he is reported to have quickly complained to the White House Counsel that he did not want the facts massaged and would not be comfortable staying in an Administration where this was happening. Translation: "Tell the President's people to quit lying. Stop the phony stories now." And the phony stories stopped. Then the President, in his typical foot-in-mouth way, admitted that Comey's handling of, and public comments about, the Russia investigation played a part in the firing. Think about that for a moment. Because of Rosenstein's status and sterling reputation, a reputation much ballyhooed by the Trumpistas, the President's people were forced to instantly and embarrassingly change their false narrative, and the President stumbled into another unforced error. That would not have been possible if the DAG had been a hack or mere factotum. Of course, Rosenstein could have decided to resign. Instead he demanded the truth and got it. It is a judgment call and I don't blame him at all for making the call he did, two weeks into the job.
Make no mistake, there is going to be a thorough investigation of Russian Collusion, either within Main Justice or by a Special Counsel. There are many good reasons for keeping the investigation in-house, as Rosenstein should know having served (along with me) in an Independent Counsel's Office. There are great inefficiencies and delays involved in setting up and running a Special Counsel operation. In disputes between such an office and an uncooperative Executive Branch, who would you rather see the President opposing? A Special Counsel, who he can demonize, or his own DAG, who he has already praised as a man of impeccable integrity? The scarier President Trump gets, the more I need the people around him to be sound, sane, and steady professionals. I want to see people like McMaster, Mattis, and Rosenstein at their stations.
As a matter of public relations, the President's unforced error will make it more difficult for Rosenstein to resist the calls for a Special Counsel. If President Trump's inappropriate comments about the investigation pile up, more and more citizens will be prone to see any declination by the DAG as a whitewash or a cover-up. So keep talking Mr. President. The more you complain about the Russia Investigation, the likelier you are to get a Special Counsel for all of your efforts. Meanwhile, were I Rosenstein, I would react to every Presidential criticism of the investigation with a renewed determination to leave no stone unturned. Hunker down Rod. Your country needs you.
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It is fairly typical that US Attorneys offer their resignations when a new President, especially one of a different party, is elected. But firings and requiring same-day resignations are less common. This is particularly troublesome as many were finishing up work on current cases. Of the 46 who had not left and asked for their resignations this week were a few that it is sad to see leaving their post. I don't know all 46, but some that I do are mentioned below –
David Capp, U.S. Attorney Northern District of Indiana - Attorney Capp had planned to retire in June 2017. He issued a thoughtful statement here. He thanks the "men and women of the USAO for their dedication and professionalism, day-in and day-out." Thank you David for your dedication and professionalism. In the statement issued he notes –
"Some years ago I spoke one evening at a church in Gary. We had just made some arrests and closed down a drug operation in the neighborhood the church served. Afterwards a gentleman came up to me, shook my hand, thanked me for our efforts and told me “now my grandchildren can play in the yard again.” That has always stuck with me and kept me focused on what our work is really about. I hope that I have played a part in making more yards in the Northern District of Indiana safe for “grandchildren to play in."
Others that were forced to resign include US Attorney Paul J. Fishman (statement here), whose office had prosecuted some of the Bridgegate cases (see here). And Preet Bhatara who was fired after refusing to resign (see here) had done some interesting prosecutions related to Conspiracy to work for Russian Intelligence (see here).
Attorney General Jeff Sessions has much work ahead trying to match the work done by individuals of this caliber.
Addendum - Other statements regarding resignations –
District of Rhode Island – United States Attorney Peter F. Neronha Stepping Down
District of Minnesota – Statement From U.S. Attorney Andrew Luger
Eastern District of Arkansas – U.S. Attorney Christopher R. Thyer Announces Resignation
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The New York Times reports that "Trump Abruptly Orders 46 Obama-Era Prosecutors to Resign." Sad.
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Holland & Knight has announced that Wifredo A. Ferrer, U.S. attorney for the Southern District of Florida, will join the firm as a partner in its Miami office. Mr. Ferrer will lead the firm's Global Compliance and Investigations Team, which focuses on corporate compliance and government investigations within the firm's White Collar Defense Practice. Read more here.
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There is something to be said about having career prosecutors, FBI, and other employees of the government immune from the political struggles surrounding them. They are tasked to focus on their jobs irrespective of the party in power. And clearly sometimes it is probably not easy.
For many years, Sally Yates was a career prosecutor. Climbing the ladder in DOJ took her out of the mainstream career prosecutor path and placed her front and center in the political arena.
I have not been a fan of the "Yates Memo," a memo that she authored that appeared to crackdown on corporate criminality, but rather in my opinion was a symbol of aggressive rhetoric that failed to offer a long-term solution to combatting corporate misconduct.
That said, her leadership role in being a "Minister of Justice" during her short tenure as the acting head of the DOJ needs to be applauded. She refused to defend a presidential order that has now been stayed by multiple judges. Bottom line – she was right and so far has been proven to be correct. For standing up for Justice she was fired on January 30, 2017.
And at the time of her dismissal, we hadn't learned of other investigations that might be of concern to President Trump's administration. It is only now that we are finding out that on January 26th the Justice Department relayed concerns about Michael Flynn to the President. (see discussion of WH Secretary Sean Spicer's Tuesday, press briefing (here).
So was Sally Yates more than just a woman who said NO to the President?
It is important to note here that there have been a long line of women who have spoken up to alert of misconduct (see here), as well as men. Maybe this is a time to recognize all the career folks in the different offices who put politics aside and just do their jobs.
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