Mueller shows mus­cle with meth­ods for probe

The Washington Times Weekly - - Politics - BY AN­DREA NO­BLE

The charges an­nounced this week by spe­cial coun­sel Robert Mueller show just how ag­gres­sive his team has been in its in­ves­ti­ga­tion into Rus­sian med­dling in last year’s pres­i­den­tial elec­tion — in­clud­ing drag­ging a former at­tor­ney for some of his tar­gets be­fore a fed­eral grand jury.

At­tor­ney-client priv­i­lege would typ­i­cally pro­tect such dis­clo­sures, but court doc­u­ments un­sealed Mon­day show Mr. Mueller’s team called an uniden­ti­fied lawyer for former Trump cam­paign fig­ures Paul Manafort and Richard Gates to tes­tify about fil­ings she made con­cern­ing her clients’ busi­ness deal­ings.

The spe­cial coun­sel ar­gued that the lawyer’s com­mu­ni­ca­tions with Mr. Manafort and Mr. Gates about the fil­ings could be dis­closed be­cause they were sub­ject to crime-fraud ex­cep­tion — a le­gal prin­ci­pal that al­lows con­fi­den­tial­ity ex­cep­tions when com­mu­ni­ca­tions fur­thered crim­i­nal or fraud­u­lent ac­tiv­ity.

“It’s quite rare and un­usual that the crime-fraud ex­cep­tion would be used to over­come the at­tor­ney-client priv­i­lege,” said Notre Dame law pro­fes­sor and former fed­eral pros­e­cu­tor Jimmy Gu­rule. “It sug­gests that spe­cial coun­sel Mueller is tak­ing a very ag­gres­sive ap­proach, a very mus­cu­lar ap­proach, to un­cover any and all ev­i­dence that can be used against tar­gets of the in­ves­ti­ga­tion.”

As part of Mr. Mueller’s probe, au­thor­i­ties con­ducted an early-morn­ing raid of Mr. Manafort’s home over the sum­mer and in­ves­ti­ga­tors are us­ing in­for­ma­tion gleaned from “proac­tive co­op­er­a­tor” Ge­orge Pa­padopou­los, who pleaded guilty un­der seal this month af­ter his July ar­rest.

Mr. Manafort and Mr. Gates stand ac­cused of a scheme to pro­vide lob­by­ing ser­vices to a former pro-Rus­sian govern­ment group in Ukraine, the Euro­pean Cen­tre for a Modern Ukraine, and former Ukrainian President Vik­tor Yanukovych’s Party of Re­gions.

Pros­e­cu­tors charged the two men with fail­ing to re­port their ac­tions as for­eign agents and laun­der­ing the pay­ments they re­ceived for the work through com­pa­nies and for­eign bank ac­counts to avoid taxes.

Ron­ald T. Hosko, a 30-year veteran of the FBI who is now president of the Law En­force­ment Le­gal De­fense Fund, said the case against Mr. Manafort and Mr. Gates came to­gether faster than he ex­pected.

“That this came to­gether this quickly is tes­ta­ment to who he has work­ing on his case, and per­haps the lack of dis­cre­tion Manafort and Gates used,” Mr. Hosko said Mon­day af­ter the charges were an­nounced.

He also said the guilty plea wran­gled from Mr. Pa­padopou­los was a mes­sage to oth­ers whom the spe­cial coun­sel will ques­tion.

“He is, to me, tele­graph­ing to oth­ers who would con­tem­plate ly­ing or mis­lead­ing or ma­te­ri­ally omit­ting in or­der to de­ceive his in­ves­ti­ga­tors, ‘Here’s what I’m com­ing with — I’m go­ing to charge you,’” Mr. Hosko said.

Use of the crime-fraud ex­cep­tion as a way to gain ac­cess to oth­er­wise priv­i­leged in­for­ma­tion is an un­com­mon le­gal tac­tic, but it is a well-known and well-ac­cepted prac­tice, said Ja­cob S. Frenkel, a whitecol­lar de­fense lawyer and former fed­eral pros­e­cu­tor.

“Where it does tend to ap­ply is in white-col­lar cases,” he said. “Even more im­por­tantly, it typ­i­cally arises in grand jury lit­i­ga­tion such as what we saw here.”

The is­sue was raised by fil­ings the lawyer made last year on be­half of Mr. Manafort and Mr. Gates, when the Jus­tice Depart­ment’s For­eign Agent Reg­is­tra­tion Act Reg­is­tra­tion Unit in­quired whether their work with the Ukrainian en­ti­ties mer­ited reg­is­tra­tion.

In re­sponse, the lawyer wrote that her clients did not have any agree­ment to pro­vide ser­vices to the men­tioned par­ties, nor did they have meet­ings or out­reach on their be­half in the U.S.

Chief Judge Beryl How­ell of the U.S. Dis­trict Court for the Dis­trict of Columbia wrote in a 37-page opin­ion is­sued on the spe­cial coun­sel’s re­quest that some of the rep­re­sen­ta­tions made about Mr. Manafort’s and Mr. Gates’ in­volve­ment were “false, a half-truth, or at least mis­lead­ing” in light of the ev­i­dence pro­vided.

“The [spe­cial coun­sel’s of­fice] over­comes any work-prod­uct priv­i­lege by show­ing that the tes­ti­mony sought from the Wit­ness is nec­es­sary to un­cover crim­i­nal con­duct and can­not be ob­tained through other means,” Judge How­ell wrote in the opin­ion made pub­lic on Mon­day.

While the lawyer at the cen­ter of the rul­ing is not iden­ti­fied in the opin­ion, CNN pre­vi­ously re­ported that the spe­cial coun­sel had is­sued a sub­poena to Melissa Lau­renza, a lawyer at Akin Gump law firm who had rep­re­sented Mr. Manafort. Ms. Lau­renza did not re­spond to a re­quest for com­ment.

A spokesman for Mr. Manafort de­clined to com­ment on the rul­ing, as did spe­cial coun­sel spokesman Peter Carr.

In grant­ing her ex­cep­tion to at­tor­n­ey­client priv­i­lege, Judge How­ell limited it to only cer­tain ques­tions. She de­cided that one of the eight ques­tions pro­posed, about whether the lawyer took notes or other records of her con­ver­sa­tions with Mr. Manafort or Mr. Gates, could not be asked.

The ques­tion “seeks opin­ion work prod­uct, and the SCO has not made the ex­tra­or­di­nary show­ing nec­es­sary to jus­tify pos­ing it, nor shown (or even al­leged) that the Wit­ness knew of or par­tic­i­pated in the Tar­gets’ crimes, a pre­con­di­tion to com­pelling pro­duc­tion of opin­ion work prod­uct un­der the crime-fraud ex­cep­tion,” Judge How­ell wrote.

Mr. Frenkel said the judge’s care­fully worded opin­ion ap­peared to sug­gest she knew her rul­ing could be a rea­son for an ap­peal later.

“Judge How­ell wrote this op­tion in a man­ner to be very in­for­ma­tive to an ap­pel­late court in terms of how she ruled,” Mr. Frenkel said.

Mr. Manafort and Mr. Gates were likely ap­prised of the fact that their at­tor­ney was sub­poe­naed to ap­pear be­fore the grand jury, said Philip Allen La­co­vara, a former U.S. deputy solic­i­tor general who served as coun­sel to Water­gate spe­cial pros­e­cu­tors Archibald Cox and Leon Ja­worski.

While grand jury tes­ti­mony is se­cret, wit­nesses are not re­quired to keep quiet about re­quests to tes­tify and at­tor­neys asked to tes­tify would have a duty to con­sult with their clients, he said.

The “not-so-sub­tle mes­sage” sent by Mr. Mueller’s ac­tions, said Mr. Frenkel, is that the spe­cial coun­sel will use “all le­gal tools avail­able” to gather ev­i­dence and ad­vance the in­ves­ti­ga­tion.

AS­SO­CI­ATED PRESS

The “notso-sub­tle mes­sage” sent by the ac­tions of former FBI Direc­tor Robert Mueller, the spe­cial coun­sel prob­ing Rus­sian in­ter­fer­ence in the 2016 elec­tion, is that he will use all le­gal tools avail­able to ad­vance the in­ves­ti­ga­tion.

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