Mueller Is Squeezing Manafort

by ANDREW C. MCCARTHY August 11, 2017

It gets curiouser and curiouser.    The Washington Examiner catches some Trump Twitter intrigue: The president's July 26 tweet grousing that acting FBI director Andrew McCabe should have been fired by Attorney General Jeff Sessions came only hours after the FBI's raid on the Virginia home of Paul Manafort, the subject of my column yesterday.

Obviously, the Examiner is deducing that there is a causal connection between the Manafort raid and Trump's tweet. This inference is reasonable, but not ineluctable.

For present purposes, however, I am more interested in reports that business records, connected to Manafort's taxes and foreign bank transactions, were the object of the raid ordered by Special Counsel Robert Mueller. That seems peculiar if the rationale for ordering a home search, rather than simply issuing a subpoena, was fear that Manafort would destroy evidence.

It makes perfect sense, though, if the prosecutor is playing hardball.

Let's first deal with the Tweet timeline. The Washington Post has reported that the Bureau executed the search warrant in the predawn hours. Trump's tweet began at 9:48 a.m. - a two-parter:

Why didn't A.G. Sessions replace Acting FBI Director Andrew McCabe, a Comey friend who was in charge of Clinton investigation but got . . . big dollars ($700,000) for his wife's political run from Hillary Clinton and her representatives. Drain the Swamp!"

"Comey," of course, is James Comey, the FBI director dismissed by Trump in early May. The Examiner's conclusory assertion that Trump's tweet is inaccurate overstates the case. It is true, as the Examiner states, that the political action committee of Virginia governor Terry McAuliffe, a Clinton pal, did not donate the money ($675,288) to Jill McCabe's unsuccessful Virginia Senate run, but two entities with which McAuliffe is closely associated did. The Examiner is also right that McCabe did not directly oversee the Clinton e-mails investigation, but as the Bureau's deputy director, he was an ultimate supervisor of its investigations. In any event, the Justice Department's inspector general is looking into whether McCabe should have recused himself from the Clinton caper. The conclusion of that inquiry is months away.

We should further note that the president had the authority to fire the acting FBI director at any time. There was no need for Trump to wait on AG Sessions, nor did anything prevent him from ordering Sessions to fire McCabe if that's what he wanted done. Moreover, the decision to seek a search warrant for Manafort's home was undoubtedly made by the prosecutor, Mueller, not the acting FBI director. McCabe was surely consulted, or at least kept informed. After all, the investigation led by Mueller is likely the most significant one the FBI is pursuing, and the bureau's agents executed the search warrant. But if Trump was angered by the predawn raid, Mueller and his team were the ones who made that call.

So, essentially, Trump's tweet was a rant - nothing new there. Was it a rant triggered by the Manafort search? If so, it was Trump at his paper-tiger worst: He wanted McCabe gone but, knowing that many of his troubles stem from botching Comey's firing, he could not risk firing McCabe - so in a fit of pique he lashed out at Sessions. And he'd love to fire Mueller, but he knows that would be a political earthquake his presidency might not survive - so in a fit of pique he lashed out at McCabe.

It is bad enough for the president to make a buffoon of himself in this manner, but it would be even more foolish to do so over Manafort. Yes, it appears the prosecutor is applying the brass knuckles to Trump's former campaign chairman, and this aggression has been invited by the Justice Department's failure to place firm limits on Mueller's investigation. For all we know, however, the investigation team may have their reasons. Manafort labored many years, at apparently lush compensation, for the Kremlin-backed cabal responsible for Ukraine's ongoing tumult. That happened well prior to the 2016 campaign, but it has always been very disturbing. If Trump is telling the truth about having no meaningful ties to Putin, he should be encouraging the investigation of Manafort, not acting like he's incensed by it.

Now, about those brass knuckles.

As I noted in yesterday's column, a search warrant must describe the evidence the investigators expect to find. It thereby provides insight about what crimes are under investigation. Wednesday afternoon, citing a single unnamed "person familiar with the matter," the New York Times reported that the warrant sought tax documents and foreign banking records. It does not appear that Times reporters have seen the actual warrant. We don't know if the paper's source traces to Mueller's camp or Manafort's. (Federal law requires agents to provide a copy of the warrant and an inventory of the property seized to the person whose property was taken.)

If the Times is right about what the agents were searching for, we can infer that Mueller is being extraordinarily aggressive toward Manafort - one of the two possibilities I suggested yesterday.

Law-enforcement generally attempts to acquire evidence in the least intrusive means practical under the circumstances. A prosecutor generally does not issue a subpoena to a person who volunteers information, although a subpoena will be issued to avoid confusion about what evidence is being demanded. Similarly, a prosecutor will not obtain a search warrant authorizing agents to rifle through a person's home when a subpoena will do the trick. Search warrants are reserved for situations in which the prosecutor and agents reasonably fear that the subjects of the probe will destroy evidence if they know investigators are sniffing around. And search warrants executed in predawn hours are generally reserved for situations in which agents are dealing with hardened or desperate criminals - subjects who might not merely destroy evidence but endanger the agents who knock on the door; subjects who might alert other conspirators to flee if searches commence when everyone is awake and alert.

When a person who knows he is under investigation retains counsel, it suggests an intention to deal with the investigation within the legal system's rules, not flee or destroy evidence. So long as they are satisfied that the subject and his counsel are acting in good faith, prosecutors are content to acquire evidence by serving subpoenas on the lawyer, not having agents armed with search warrants raid the subject's home. When a subject is cooperating with investigators, search warrants are wholly unnecessary and excessively intrusive.

Manafort is represented by counsel, has been cooperating with congressional committees looking into Russia's election-meddling, and has publicly indicated willingness to cooperate with the special counsel. The Examiner reports that he has voluntarily turned over more than 400 pages of documents. There is only one publicly known connection between Manafort and suspicions of Trump-campaign collusion in Russia's election-meddling: He was present at the June 2016 Trump Tower meeting, arranged by Donald Trump Jr., between top campaign officials and suspected Putin-regime operatives. In that connection, Manafort has apparently turned over the notes he took at the meeting.

In sum, Congress has asked Manafort for all documentary evidence he may have that could be relevant to an inquiry into potential Trump-campaign collusion in Russia's interference in the election. Manafort and his lawyers disclosed what he says he has. Mueller's team could easily have gotten the same disclosure without resorting to a search warrant. They need only have asked Manafort's lawyers, who'd have had no reason to decline, especially after giving the same information to Congress.

That was not good enough for Mueller. This could mean either or both of two things: (1) Mueller believed Manafort was hoarding relevant evidence and might destroy it if it were not taken forcibly from him; and/or (2) Mueller has a message for Manafort: The special counsel is not limiting his inquiry to the Russia investigation that Congress has been pursuing; rather, Mueller intends to scorch the earth as necessary to make a case - any case - on Manafort, for purposes of squeezing him to become a cooperating witness against others, potentially including the president.

So, let's think first about the "likely destruction of evidence" angle.

If the Times is right and the search warrant sought tax and banking records, they are among the evidence that a sophisticated businessman would be least likely destroy - especially if, like Manafort, he is represented by good lawyers. The government usually has multiple ways to get copies of these sorts of business records. Prosecutors can, for example, issue grand-jury subpoenas on American corporations, financial institutions, and accountants. There are, moreover, various legal avenues for obtaining financial records overseas. Consequently, a businessman who destroys or hides his own copies of these records is only going to open himself up to an obstruction prosecution. He will do nothing to derail the government's investigation.

Did Mueller really think that, if he gave Manafort's lawyers a subpoena for tax and foreign banking records, Manafort would conceal or destroy them rather than comply? Count me skeptical.

How about the scorched-earth angle?

Putting Russia's 2016 treachery aside, it has been reported that Manafort is under investigation over (a) business dealings involving his son-in-law, and (b) whether Manafort violated the Foreign Agents Registration Act (FARA) by failing to register as an agent of the Kremlin-connected Ukrainian party for which he did political consulting work from 2005 through 2014. These things may indeed involve criminal conduct. Yet, the transactions with the son-in-law do not amount to much dollar-wise; and the Justice Department recently told Circa that, out of hundreds of potential cases, it had prosecuted only four FARA violations in the last decade - such violations are virtually always handled by a letter admonishing the non-registrant to get right with the law . . . which, it appears, Manafort has already done.

These do not seem like crimes of the century, but Mueller is sure acting like he's dealing with a serious criminal. I believe Manafort is being squeezed.

I've squeezed bad guys before. It's not illegal, it's effective, and if you're a prosecutor dealing with a real bad guy, it's righteous. Is Manafort that kind of bad guy? We don't know what Mueller knows. But we can reasonably surmise that Mueller's investigation is not confined to Russian meddling in the 2016 election - Deputy Attorney General Rod Rosenstein's protestations notwithstanding.

Stand by for Twitter eruption in three . . . two . . . 

A version of this piece also appeared on National Review  Online.

FamilySecurityMatters.org Contributor  Andrew C. McCarthy is a senior fellow at the National Review Institute, author of Willful Blindness: A Memoir of the Jihad and blogs at National Review Online's The Corner. 

 

 


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