Mueller shows muscle with methods for probe
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.
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.