NEWSMAX|AIWA! NO!|Special counsel Robert Mueller is reportedly involved in a closed-door fight with a witness who’s refused to testify before a grand jury investigating Russian interference in the 2016 election.
A confidential hearing on a secret battle first disclosed by Politico was held Friday at the federal courthouse in Washington, The New York Times reported. An entire floor of the courthouse was closed to the press to guard the identities of lawyers involved in the secret case.
But according to the Times, it appears the battle is over whether a witness can be forced to answer investigators’ questions — and it’s not President Donald Trump.
“We’re not involved in it — we’re not aware of the nature or scope of the litigation,” Jay Sekulow, one of the president’s lawyers, told the Times Saturday.
According to the Times, Mueller’s investigators and lawyers for Trump are still wrangling over whether Trump will sit down for a face-to-face interview; Trump’s already answered written questions.
And if those talks break down, Mueller could seek to subpoena the president, giving Trump’s lawyers the chance to go public to bolster the president’s claim the probe is a witch hunt.
The Times noted in one aspect of the probe, Mueller is examining whether one of Trump’s longtime associates, Roger Stone, was a conduit between WikiLeaks and the campaign. Mueller is already in a legal fight with a Stone associate who’s refusing to testify before a grand jury and hand over documents, the Times reported.Related Stories:
|AIWA! NO!|Former CIA officer Phil Mudd and former prosecutor Laura Coates discuss the significance of Robert Mueller’s filing detailing the cooperation of President Trump’s former national security adviser Michael Flynn.
JOHN BERMAN, CNN HOST: So Phil, let’s go to you first, since frankly, you scare me on a good day and now I’ve offended you. When you see the redactions in this memo — and you worked for Robert Mueller; you know how he works — what do you see here?
PHIL MUDD, CNN COUNTERTERRORISM ANALYST: I’m putting a bunch of pieces together that aren’t evident but look pretty clear to me. No. 1, you’ve got to combine what the document says with the information, for example, about the extent of interviews like Don McGahn with other people from the White House. You’ve got to look at the number of times that this individual, General Flynn, met with the special counsel.
Look at another thing. There’s specific reference, not to investigating lies by other individuals or money trails, which is what got Paul Manafort. The specific reference is to cooperation on Russia. So if you put the quantity of information together, the fact that there’s specific reference to Russia, three ongoing investigations mentioned in that document, I’m going to tell you one thing I take away.
There’s about a size 16 shoe going to drop here, and that shoe is not going to be related to lying, or to just financial irregularities, which we’ve seen in the past. I think they’re centering in on the core of the investigation, which is what Flynn and others are saying about cooperation with Russia. I think it’s going to happen.
ALISYN CAMEROTA, CNN HOST: Well, Phil, that gets to your point. He alluded to these three investigations. So one of them is the Mueller investigation. Is the other one the Southern District of New York? Or what — what are the other two investigations?
MUDD: I can only — I mean, I’m going to guess here, as Neil Katyal was talking about a few minutes ago on the show. There’s a couple of things that I was thinking about when I was reading the document.
You look at categories of investigation, categories related to Russia, related to money and related to lying. I could see more information coming out related to financial information, like what Paul Manafort did. That’s one element of the investigation.
Clearly, as I mentioned earlier, there’s still the question of whether there was cooperation with the Russians. That’s a Roger Stone kind of an investigation. That’s different than the money investigation.
In parallel to that, everybody here seems to lie like a rug, so there’s got to be investigations related to who else is lying and whether you want to indict him. I was one of the many who thought this was shut down.
But when I look at the extent of investigation, which is bigger than I thought — the number of people involved, the number of them who are lying — and the amount of documentation of financial records, et cetera, this one could go on for a while.
WASHINGTON – |Reuters|AIWA! NO!| – U.S. President Donald Trump told the special counsel investigating possible collusion between the Trump campaign and Russia that he was not aware ahead of time of a meeting in June 2016 between campaign officials and Russians, MSNBC reported on Wednesday, citing sources familiar with the matter.
Matt Naham, LAW & CRIME|AIWA! NO!|President Donald Trump‘s attorney Rudy Giuliani has been pretty forthcoming about the fact that he and Paul Manafort’s attorneys have discussed how cooperation has been going with Special Counsel Robert Mueller. While Manafort and Trump do have a joint defense agreement in place (as Trump has with others), questions have been raised as to whether inappropriate communications have been going on behind the scenes, and what the consequences of this might be.
As CNN legal analyst and attorney Ross Garber told Law&Crime, joint defense agreements like this one are not improper per se, but there are “substantial potential perils to providing information pursuant to a common interest agreement while cooperating” — which Manafort was doing until he wasn’t.
Garber said that “prosecutors usually take a dim view of such agreements” and that many of them “believe you are either on Team USA or not. ” Given that a prosecutor might already regard such an arrangement as suspect, that prosecutor (Mueller in this case) might be interested in knowing whether the lawyers have gone too far when it comes to sharing information.
“[D]uring the course of cooperation, a person might learn information from the government or get a sense of its strategy. Sharing this information with another party might cross the line into conduct the government would consider obstructive or at least incompatible with cooperation,” Garber said. “I have seen lawyers themselves become subjects or targets under these circumstances.”
Here’s where Rudy Giuliani’s New York Times remarks come in. Per the Times:
Rudolph W. Giuliani, one of the president’s personal lawyers, acknowledged the arrangement on Tuesday and defended it as a source of valuable insights into the special counsel’s inquiry and where it was headed. Such information could help shape a legal defense strategy, and it also appeared to give Mr. Trump and his legal advisers ammunition in their public relations campaign against Mr. Mueller’s office.
For example, Mr. Giuliani said, Mr. Manafort’s lawyer Kevin M. Downing told him that prosecutors hammered away at whether the president knew about the June 2016 Trump Tower meeting where Russians promised to deliver damaging information on Hillary Clinton to his eldest son, Donald Trump Jr. The president has long denied knowing about the meeting in advance. “He wants Manafort to incriminate Trump,” Mr. Giuliani declared of Mr. Mueller.
So, Giuliani has been gaining insights from Downing and using that to help Trump mount a smear campaign against the Mueller investigation; the same smear campaign that Mueller may already view as obstruction? It’s worth noting that both Giuliani and Trump wanted no part of answering Mueller’s obstruction questions.
We do not know how much or how often Downing filled in the gaps for Trump’s legal team, but it was reported that what he had to say let Trump know Manafort had not “implicated the president in any possible wrongdoing.”
Garber said that Giuliani’s “sharing of otherwise privileged information that he obtained from Manafort’s lawyers is odd and seemingly unwise.” He said it is not clear at this time if the information was subject to privilege.
“It appears Manafort’s lawyers simply conveyed info about what they themselves (as opposed to their client) witnessed,” Garber said. “No privilege protects lawyers themselves from having to testify about what they saw and heard if it wasn’t conveyed by their clients.”
As a result, Giuliani and Manafort’s lawyers could theoretically turn into Mueller witnesses.
Even if there was privilege, Garber said, that is “usually waived if the info is disclosed to a third party,” such as the New York Times.
“Rudy risked this by providing info to the press,” Garber said, adding that if “Rudy and Manafort’s lawyers were communicating with the purpose of getting their clients’ stories straight or interfering with the investigation, this does raise serious obstruction issues. ”
Shanlon Wu, who was the criminal defense attorney for Manafort associate Rick Gates and is also a CNN legal analyst, told Law&Crime that if he was the prosecutor in this case, he would be inclined to speak to the lawyers involved in this joint defense agreement as witnesses.
He also said the arrangement was “questionable ethically” and speculated it could “convert Trump’s legal team into witnesses to potential obstruction.”
Hi Randy! I have said for a while I it very odd to have a joint defense agreement where one defendant cooperating and the other is not. Questionable ethically & may even convert #Trump legal team into witnesses to potential obstruction #Mueller#FBR
To my friends who do white collar defense: there’s a claim floating around that Manafort and Trump still had a joint defense agreement and could be sharing information while Manafort was cooperating with prosecutors. Is that likely? Seems like potential malpractice on all sides.
“It’s so rare in my experience to have such an arrangement that were I the prosecutor and thought the cooperator was lying and speaking with other defendants’ counsel then I would be worried they were getting direction from the other lawyers,” he said. “So, I’d want to speak to the other lawyers as witnesses.”
It is notable that Downing did not reply to the Times’ request for comment. Nor has he responded to Law&Crime’s request for the same. Giuliani, for his part, has said of the arrangement with Manafort’s team, “We discuss things that are appropriate.”
DOMINIQUE JACKSON, RAW STORY|AIWA! NO!|On Tuesday, Fox News judicial analyst Andrew Napolitano revealed to host Shep Smith that Special Counsel Robert Mueller acted strategically to block President Donald Trump from pardoning Paul Manafort.
Manafort, Trump’s former campaign manager, was busted for lying even after he signed a plea agreement.
“The guilty plea is 175 pages long. In my career, I have never seen one like this. It was so carefully crafted by Bob Mueller and signed by Paul Manafort, that at the time he pleaded guilty to the charges he was indicted for — which was basically bank fraud, money laundering, and some form of commercial bribery of foreign officials in federal court. He also pleaded guilty to uncharged state crimes in New Jersey, in Virginia and in California.”
He added, “Why did they do that? To make it pardon proof so if President Trump, which he can do, does pardon him for the federal crimes the state prosecutors in those states already have his guilty plea.”
“Mueller has played by the book, no leaks no lies that we know of,” he concluded.
RONN BLITZER, LAW & CRIME|AIWA! NO!|One rallying cry behind supporters of President Donald Trump when it comes to the Russia investigation is that even if there is evidence that the Trump campaign colluded with Russia, collusion itself is not a crime unless it was done through actions that were independently illegal. That means that if, for example, the Trump campaign was involved in the hacking of Democratic National Committee emails, that would be a problem because the hacking would be the illegal act. Merely talking to Russia or coordinating certain legal activities would not be a problem, the argument goes, because “collusion” itself is not illegal.
That last part may be true, but a recent opinion in case brought by Special Counsel Robert Mueller points out that there are situations where collusion in the form of even legal acts could still result in a criminal charge. Specifically, it’s the statute of Conspiracy to Defraud the United States.
“This court ruling should drive another nail in the coffin of the argument that collusion is not a crime. It clearly can be, and the crime is conspiracy – even if no other independent criminal violations are identified,” wrote Randall Eliason, a former federal prosecutor and lecturer at George Washington Law School. “Mueller’s use of that theory in his Russian social media indictment is a textbook example of a 371 conspiracy to defraud the U.S., and that theory has now been validated by the trial judge’s ruling.”
As U.S. District Judge Dabney Friedrich explained in his opinion last week, there are two ways to violate 18 U.S.C. 371. One can either “conspire … to commit any offense against the United States,” which is conspiracy in the traditional sense, or one can conspire “to defraud the United States, or any agency thereof in any manner or for any purpose[.]”
For either method of conspiracy, one must have an agreement with another party to carry out the conspiracy, an then at least one party must “do any act to effect the object of the conspiracy.”
The case was involving Concord Management, a company which Mueller indicted for it’s alleged involvement in an elaborate scheme to influence American voters by using fake identities to post messages on social media, having Russia operatives on the ground in the United States carrying out activities such as staging grassroots protests, and spending money to carry out the operations.
Where it gets tricky, and where Concord Management challenged Mueller’s case, is that the courts have ruled that when defrauding the United States, that doesn’t just mean that one tried to commit fraud against the U.S. It also means, “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.”
That means that if two or more parties conspire to get in the federal government’s way of doing its job, even through activities that are otherwise lawful, that’s enough to trigger the statute.
In other words, collusion itself can be a crime if it’s for the purpose of pulling a fast one on a department of the federal government.
Concord Management challenged this idea, saying that there cannot be a conspiracy conviction “based strictly on lawful conduct” even if it was “concealed from the government.” The judge wasn’t convinced.
“A defraud-clause conspiracy need not, however, allege an agreement to violate some [separate] statutory or regulatory provision,” Judge Friedrich wrote, citing previous cases that support this.
As a result, he said, this trumps Concord Management’s claim Mueller didn’t have enough to charge them with more specific violations.
Federal law, the indictment says, “bans foreign nationals from making certain expenditures or financial disbursements for the purpose of influencing federal elections” and “bars agents of any foreign entity from engaging in political activities within the United States without first registering with the Attorney General.” Just because Mueller may not have enough to prove that Concord Management had the requisite intent to violate the statutes that ban such behavior, there can still be enough to show that their “course of conduct” was enough to trigger the defraud clause of the conspiracy statute.
So what does this mean for the Trump campaign? Well, it means for starters that if Mueller uncovers evidence that they were involved in Concord Management’s operation, the defraud clause could apply to them as well. More importantly, however, it means that if campaign officials colluded with Russia in a way that was meant to impair, obstruct, or defeat the function of a government agency, they could face charges even if they those acts on their own were otherwise legal.
President Trump Accuser’s Lawyer Michael Avenatti Reacts to Don Jr.’s Fear of Robert Mueller: “I told you so.”
|AIWA! NO! |Donald Trump Jr. gave an interview with USA Today for an article published Wednesday, in which he expressed concern that Special Counsel Robert Mueller could make up allegations against him as part of his Russia investigation.
“I know that I’m not worried about anything I actually did,” Trump Jr.told the newspaper. “That doesn’t mean they don’t totally fabricate all of this stuff at this point.”
That remark was apparently enough for attorney and Trump-baiter Michael Avenatti to claim victory when it comes to his prediction that the president’s son will be indicted by year’s end.
“Translation of @DonaldJTrumpJr comments: ‘Avenatti was right when he predicted I would be indicted (which is one of the reasons why we are so concerned about him running in 2020 and going after us),’” Avenatti posted in a Thursday tweet. He included a link to a Newsweek article that reprinted Trump Jr.’s remark.
Avenatti, who first engaged in battles with the Trumps through lawsuits brought against the president by Stormy Daniels, has been talking about a Don Jr. indictment for some time now. On October 9, the lawyer warned Trump Jr. that he find himself in a federal prison, saying, “Buckle up Buttercup.” Two days later, Avenatti took it a step further, predicting that not only will the president’s son be indicted, but that it will happen before the end of 2018.
Then, on October 14, Avenatti specified that an indictment could be for making false statements to federal agents. Trump Jr. drew scrutiny over a meeting he arranged with senior Trump campaign officials and a Russian attorney where he apparently was hoping to get dirt on Hillary Clinton.