A Question of Privilege: How Mueller Used Manafort’s Own Lawyer As A Witness Against Him

download-3Below is my column in the Hill Newspaper on the highly controversial move of Special Counsel Robert Mueller to use Paul Manafort’s own lawyer as a witness against him.  What is most striking about this move is that it was entirely unnecessary given the other evidence of alleged violations of federal law governing foreign agents.  The case against Manafort is strong but the denial of attorney-client protections in the case should be a matter of great concern for all citizens — regardless of your view of the underlying merits of the Russian investigation.

While his indictment last week likely came as little surprise to Paul Manafort, one of the key witnesses used against him surprised and worried not just Manafort but many in the legal bar. The star witness on some of the allegations was none other than Manafort’s own lawyer, Melissa Laurenza of Akin Gump Strauss Hauer & Feld. While Mueller and his team have previously been criticized for strongarm tactics, those allegations pale in comparison to to using Manafort’s own lawyer as a witness against him.

In fairness to Mueller and Laurenza, the compulsion of the testimony was reviewed by U.S. District Court for the District of Columbia Chief Judge Beryl Howell, who granted a motion to compel the testimony after a series of hearings. In an Oct. 2 opinion, Howell found that representations in letters denying lobbying efforts in the United States were “false, a half truth, or at least misleading.”

Obviously, denials to criminal charges are often viewed by prosecutors as misleading or inaccurate. In this case, the critical facts involved Manafort’s claim that he was not acting as a foreign agent in the United States as opposed to his work abroad for the Ukraine’s Party of Regions. What constitutes lobbying can be a hotly contested matter. Moreover, even if Manafort crossed the line with contacts and efforts in the United States, such crimes can be proven by focusing on those contacts and efforts rather than his own counsel.

440px-Director_Robert_S._Mueller-_III-1This is not the first time that Mueller or his key aides have been accused of dismissing confidentiality and other standard rules of engagement. Recently, criminal defense attorney Harvey Silverglate leveled a highly disturbing charge against Mueller stemming from his work on a case in Boston. Silverglate says that Mueller once sent a person wearing a wire into his office in an unsuccessful effort to entrap the lawyer. Silverglate says that he ran into Mueller years later to express his disappointment over his conduct and said, “Mueller, half apologetically, told me that he never really thought that I would suborn perjury, but that he had a duty to pursue the lead given to him.”

andrew-weissman-article-201706131809.jpg
Andrew Weissman.

Mueller raised some eyebrows early in his tenure as special counsel by hiring prosecutors with controversial reputations for stretching the criminal conduct to the breaking point. His chief aide, Andrew Weissmann, has been widely criticized for a pattern of “prosecutorial overreach” in cases like Enron. Weissmann’s work against the accounting firm of Arthur Andersen is one such example. The convictions that he secured at any cost in that case were unanimously reversed by the Supreme Court. Likewise, Weissmann secured convictions against four executives with Merrill Lynch by stretching the criminal code beyond recognition The Fifth Circuit reversed them. He also resigned from the Enron task force in the midst of complaints over his tactics.

Former federal prosecutor Sidney Powell was so outraged by Weissmann’s alleged unethical tactics that she filed ethics complaints against him in Texas and Washington in 2012. She alleged witness threatening, withholding exculpatory evidence and, ironically, in light of the Manafort controversy, the use of “false and misleading summaries.” The use of Manafort’s own lawyer as a witness against him presents a particularly chilling tactic for counsel and their clients. Attorneys routinely convince clients to comply with the law and often prevent violations that might be contemplated by ill-informed or unthinking clients. Such counseling only occurs because people feel free to discuss their concerns and plans under the guarantees of attorney-client privilege.

The crime-fraud exception has vexed courts and attorneys alike since it was recognized in Clark v. United States in 1933. The Supreme Court issued a maddeningly vague standard by declaring, “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.” It obviously is not that simple, and courts have struggled to maintain lines of confidentiality ever since.

Generally, courts reject the use of the exception with regard to past crimes and more often will allow the exception to be used when the attorney is an active vehicle or facilitator of a crime or fraud. This year, the U.S. Court of Appeals for the Third Circuit rejected the use of the exception in a length memorandum. Although the court found compelling evidence of fraud in the case, it refused to breach the confidentiality of the attorney-client relationship.

The government alleged that a business settlement was secured as a result of fraudulent representations. The prosecutors wanted to use an email between the defendant and his lawyer that was later forwarded by the client to his accountant. The Third Circuit held that, despite the disclosure to the accountant, there was no exception to confidentiality. It noted that to use the exception, the government had to show a reasonable basis to suspect that the lawyer or client was “committing or intending to commit a crime or fraud” and that the “attorney work product was used in furtherance of the alleged crime or fraud.”

In Manafort’s case, Laurenza only joined his legal team after the government had started to investigate Manafort for, among other things, the failure to register as a foreign agent. This filing violation has long been viewed as a matter handled as a simple administrative matter rather than a criminal matter. Many violators simply retroactively register. Manafort retroactively registered, as did Tony Podesta, founder of the powerful Podesta Group lobbying shop and brother of Hillary Clinton campaign manager John Podesta, who was also linked to Ukrainian interests as a result of the Mueller investigation. Only six cases have ever been prosecuted under the modern Foreign Agents Registration Act (FARA).

In Manafort’s case, Laurenza only joined his legal team after the government had started to investigate Manafort for, among other things, the failure to register as a foreign agent. This filing violation has long been viewed as a matter handled as a simple administrative matter rather than a criminal matter. Many violators simply retroactively register. Manafort retroactively registered, as did Tony Podesta, founder of the powerful Podesta Group lobbying shop and brother of Hillary Clinton campaign manager John Podesta, who was also linked to Ukrainian interests as a result of the Mueller investigation. Only six cases have ever been prosecuted under the modern Foreign Agents Registration Act (FARA).

More importantly, the Justice Department’s FARA office raised the issue last September with Manafort and his associate, Richard Gates. That is when Laurenza was retained. Two letters were then sent by Laurenza in November 2016 and February 2017 containing denials to the charges. They denied outreach efforts for Ukraine’s Party of Regions, work with a suspected think tank, and efforts to facilitate lobbying connections.

Thus, this was part of a defense in a case that was already viewed as part of a criminal investigation and referenced what appears to be past, not ongoing, conduct under FARA. The use of Laurenza to incriminate her own client was unnecessary and unwarranted under these circumstances. There is evidence of FARA violations, but this crime is easily established, and the charges can be deadly because they generally do not require witnesses. Failing to register as a foreign agent is a filing violation.

In calling Laurenza as a witness, Mueller’s team seemed to make more of a tactical move to cut off a defense at trial by turning the defense counsel into a witness for the prosecution. The implication for our legal system goes well beyond this case. As the Supreme Court stated in Upjohn v. United States in 1981, “An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a practicing criminal defense attorney. You can follow him on Twitter @JonathanTurley.

76 thoughts on “A Question of Privilege: How Mueller Used Manafort’s Own Lawyer As A Witness Against Him”

  1. in my humble state here in flyover, a lawyer – prosecutor can and will and has been more than once disciplined by the state ethics authority for disregarding the attorney client privilege of the accused.

    like severely punished, actually!

    Mueller is notorious and a threat to the constitutional rights of the accused

  2. Professor Turley, re the Mueller investigation, the concerns you imply with your blog are different than those you voice on TV. You author a lengthy disquisition on Mueller’s tactics shading your comment with an air of impropriety alleged. Loud and clear good buddy. A tad bit jejune going after the reputations of a few of Mueller’s attorneys.

    I would like to see your legal analysis on the volunteer / coffee fetcher status of the Trump foreign adviser team that pleaded guilty. For a coffee fetcher, he certainly had a prime seat at the NSA strategy meeting table. I’m certain he was a Clinton mole. He’s a liar too. Nothing probative from this diversion.

    1. He was 28 years old and had a BA from Depaul at the time Dr. Carson hired him (presumably based on a research position he’d landed at the Hudson Institute). The Trump campaign had an understanding with Dr. Carson to incorporate some of the Carson staff into Trump’s. It’s quite doubtful anyone with Papadopolous’s background would be influential.

  3. Someone told me once that practicing law is an honor and a privilege.

    It appears not. Has Mueller’s past behavior not reached the threshold to get him disbarred? If criminal charges are not typically brought for failing to register as a foreign agent, and Podesta was allowed to register after the fact, then why not Mueller?

    I am convinced that our government has become weaponized against conservatives. Instead of investigating a crime, Mueller seems to be desperately looking for a crime, any crime. That is not supposed to be a how a just America works. Even the FBI has become politicized, with Comey writing Clinton’s exoneration before the investigation completed.

    Are we a free, multi party country, or aren’t we?

    1. Change the channel. Mueller is a Republican, who worked under numerous Republican administrations. Moreover, he is the unique character in D.C., a public servant who is well-respected by Democrats, Republicans and Independents. But, you didn’t hear that on Pravda Faux News, now did you?

      This is to “but Hannity said he was a baddy” karen

      1. Your thoughts on this, Mark?

        “Russia-gate’s Mythical ‘Heroes’”

        June 6, 2017

        “The mainstream U.S. media sells the mythical integrity of fired FBI Director Comey and special Russia-gate prosecutor Mueller, but the truth is they have long histories as pliable political operatives, writes ex-FBI official Coleen Rowley.”

        By Coleen Rowley

        Mainstream commentators display amnesia when they describe former FBI Directors Robert Mueller and James Comey as stellar and credible law enforcement figures. Perhaps if they included J. Edgar Hoover, such fulsome praise could be put into proper perspective. -Coleen Rowley

        https://consortiumnews.com/2017/06/06/russia-gates-mythical-heroes/

        (“Coleen Rowley, a retired FBI special agent and division legal counsel whose May 2002 memo to then-FBI Director Robert Mueller exposed some of the FBI’s pre-9/11 failures, was named one of TIME magazine’s “Persons of the Year” in 2002. Her 2003 letter to Robert Mueller in opposition to launching the Iraq War is archived in full text on the NYT and her 2013 op-ed entitled “Questions for the FBI Nominee” was published on the day of James Comey’s confirmation hearing.”)

        1. All of this is clever yet removed from the core problems:

          – Special prosecutors aren’t legal. They simply do not accord with our legal system.

          – Mueller’s probe can end with the current indictments or continue indefinitely. The probe is little more than a political tool in the hands of the swamp against someone from outside the swamp. (Had Perot won in 1992 the same thing would have happened).

          The question then is how far will the deep state go to protect their own versus what concessions will the Trump administration make to protect POTUS.

            1. Excerpt from ZeroHedge — linked, above:

              Unsure If Government Can Assassinate U.S. Citizens Living On U.S. Soil

              Rather than saying “of course not!”, Mueller said that he wasn’t sure whether Obama had the right to assassinate Americans living on American soil.

              Constitutional expert Jonathan Turley commented at the time:

              One would hope that the FBI Director would have a handle on a few details guiding his responsibilities, including whether he can kill citizens without a charge or court order.

              ***

              He appeared unclear whether he had the power under the Obama Kill Doctrine or, in the very least, was unwilling to discuss that power. For civil libertarians, the answer should be easy: “Of course, I do not have that power under the Constitution.” End of excerpt

              1. Thank you kindly for reminding readers what a scum bag traitor is Mueller. To remind readers further: Trump has never murdered a US citizen from a Kill List without charge, as has His Majesty Lord Jesus Obama did, at least two times: both named Anwar Al-Awlaki, the father and his 16 year old son by the same name.

                Reports state killing the adolescent was an “error,” you know, like getting short changed 15c at the Piggly Wiggly.

                Trump has not sent the CIA to murder any legally installed government leader, as Obama’s SOS HRC did in Libya, which turned Libya into a hell hole with literally millions of refugees, and ISIS fully in charge.

                HRC sent the CIA in with lots of guns and money, who distributed same to alleged “moderate Islamic rebels” who anally raped and beheaded President Muammar Gaddafi, for his crime of promoting a pan-African currency to tip the scales for Africa v. Western Industrialists intent on harvesting the largest untapped store of wealth on earth in Africa.

          1. I live right outside of Washington DC. With the exception of true outsiders, EVERYONE inside the beltway is political. Ride the Metro or a city bus and the driver is political in one way or another.

              1. I couldn’t agree more. This is the town that, when Comey testified, people actually took a day off work to go to DC bars and watch it the way normal people watch sports at a bar. I encourage everyone to visit DC at least once just to see the rat race and all the twenty-somethings fresh out of big name colleges scurrying around trying to make a name for themselves. I guess it’s like that everywhere and the only thing that makes it different in DC is that instead of producing things, government is the business and product du jour. As for me, I’ll be moving elsewhere in the near future and to a place where you can stop and smell the roses without debating global warming, ag policy, etc with some wannabe wonk.

                1. I’d encourage you to pay attention to ordinary people living in greater Washington, and not just specimens who make you feel better about yourself.

            1. Courtesy the Bureau of Economic Analysis:

              In the Washington commuter belt (which consists of the District of Columbia, five counties in Maryland, 11 counties in Virginia, one county in West Virginia, and six stand-alone municipalities in Virginia – of which about 2/3 of the population is urban and suburban and 1/3 exurban) the distribution of employment between sectors is as follows:

              Government employment: 18.4%
              Private employment: 81.6%

              9.1%: Federal government, civilian
              7.8%: State and local government
              1.6%: Military

              8.7%: Health care and social assistance
              6.4%: Administrative and support services / waste management and remediation
              3.4%: Educational services
              2.3%: Information
              1.8%: Wholesale trade
              1.5%: Manufacturing
              0.3%: Farms

              58%: Private sector, no sectoral distribution provided, includes

              Forestry, fishing, and related activities
              Mining, quarrying, and oil and gas extraction
              Utilities
              Construction
              Retail trade
              Transportation and warehousing
              Finance and insurance
              Real estate and rental and leasing
              Professional, scientific, and technical services
              Management of companies and enterprises
              Arts, entertainment, and recreation
              Accommodation and food services
              Miscellaneous

      2. Marky Mark Mark – just because you put a handle on a newspaper printing press, does not make it portable. Mueller has covered for Hillary at least once before and he seems to be working as a better Democrat than Republican. He actually should recuse himself from this case, but he is one of the few who has not had to honor to.

      3. Got a Purple Heart and a Bronce Star. Means nothing to Roger Stoners palsy walzies. They want to preserve da corrupt T rump dynasty. Full employment for da T rump Pooton troll farms.

      4. “Mueller is a Republican” Yeah, like Bill Kristol, The Koch Bros, all the Bush Crime Klan, George Will, etc,etc, who all voted for HRC, right, and encouraged others to do the same? Hey Mark and all the rest of your HRC voters, how does it feel being in bed with The Koch Bros? Two years ago The Koch Brothers were Satanic, now they are angels because they hate Trump.

        Kristol purchased faux news to destroy Trump prior to Trump winning the nomination, with one critical difference v. HRC and the DNC: even scum bag Kristol (son of a Judaic Russian Bolshevik) did not hire a law firm who hired a foreign retired MI5 Russia desk agent Chris Steele, who paid the Kremlin for lies Re. Trump, which is exactly what HRC and the DNC did. Remember that difference when DNC boot licking surrogates like Mark M. mention that Republicans purchased “opposition research” prior to HRC and the DNC.

        Till revelations 2 weeks ago, Trump’s campaign allegedly buying dope from Russians concerning HRC was a Federal Crime worthy of impeachment and prison (after $100 million dollars, no evidence of such activity). When we positively confirm 2 weeks ago that HRC and the DNC did exactly the above, it’s innocent “opposition research.” Give this a 9.5 (10 is perfection) on the Orwell Scale for Original “double speak.”

        Re. HRC and the DNC paying $15M to a law firm who paid Chris Steele who paid the Kremlin for faux news Re. Trump: the DNC-owned MSM say this is “old news,” quoting the mid-’16 Mother Jones report. This DNC-sponsored “old news” lie totally ignores that Podesta, his lawyer, and apparently HRC herself all denied money changed hands for the “Russian Dosier,” which apparently Comey’s FBI used as “evidence” to tap Trump’s agent’s lines, and was the foundation of the entire “Russia Witch Hunt.” Would you like a political party to purchase a pack of lies about you, which lies were then used to tap your phones and publicly destroy your life?

        Even last night on Tucker Carlson’s show, DNC Chief Perez refused to acknowledge the above described payments: “I did not see the books….before I got here.” Surprise: the current DNC Chief has no idea what crimes the DNC committed last year, and does not want to look to confirm such.

        Don’t worry about Mark. He seldom lets the facts cloud his judgement.

  4. I saw Professor Turley on TV recently. He says Washington DC is awash in Russian money. I guess if money is green, in Washington DC it doesn’t matter it’s country of origin.

  5. “SENATE JUDICIARY COMMITTEE CHAIR CHUCK GRASSLEY HAS SPENT THE WEEK COWERING FROM HIS PARTY’S LEGAL PROBLEMS”

    https://www.emptywheel.net/2017/11/02/senate-judiciary-committee-chair-chuck-grassley-has-spent-the-week-cowering-from-his-partys-legal-problems/

    “Senate Judiciary Chairman Chuck Grassley said Thursday he was still learning all the details about the Papadopoulos matter.

    “Asked if Sessions should amend his testimony before his committee, Grassley told CNN: “I’m looking into it.”

    “I’ve long defended Grassley’s legitimate questions about the investigation — most notably questions about the Steele dossier. But all week the senior Republican overseer of the Justice Department has been cowering from the clear implications of this scandal. Perhaps it’s because Grassley has a duty, here, to ensure the integrity of a department led by a serial perjurer, he has instead been hiding and dodging.”

  6. Mueller’s investigation is tainted.

    This sort of abusive behavior, approved by a federal judge, is no surprise either. Courts meddle a great deal but they don’t protect us very much.

        1. No he just went after ANYTHING and everything because he didn’t find what he thought he could find.

          1. Jim Guy Tucker and Webb Hubbell were convicted. Clinton was disbarred. An impediment to convicting the Clintons was Susan McDougal’s willingess to cool her heels in jail for 18 months rather than provide grand jury testimony. Another was that James McDougal died at an awfully convenient time.

  7. Why not just waterboard Manafort instead? Once he gives up the dirt on President Trump, who’ll care how it was gotten?

    1. Olly,really, some flip-flops remain a bridge too far. Nice use of antithesis with” dirt,” though. LOL.

    2. Olly, you know better than that, it’s enhanced interrogation not waterboarding or torture.

      1. You might find unlawful/unethical behavior okey dokey if it supports your worldview, but I do not. I’ll leave the wordsmithing to you.

  8. This is a slippery slope that prosecutors have been greasing for many years, pushing the bounds of the criminal fraud exception to the point where it threatens the adversarial process. That is not hyperbole. The government cannot prove its case so it extracts evidence from the defendant via confidential communications. What is next? A defendant enters a plea of not guilty through counsel and the government claims that the not guilty plea waives privileged communications?

    1. Jim Acosta confirmed on CNN has 2 passports. Is he an American now?
      Do you see the ridiculousness of your statement?

      1. Foreign reporters use two passports, as in if they are behind lines of one force they don’t want their passport stamped with the other countrys on it.

  9. This is but another problem with independent special counsels. Since these counsels essentially exist outside the scope of the law, the natural tendency is for them to ignore the law in their witch hunts.

        1. You people never learn. But at least George W. Bush came out on your side today! All you demos must be ecstatic!

          I find the humor in all of this truly amazing.

          1. And every DNC surrogate who posts here now is in bed with the Koch Bros. First the Koch Bros. were Satanic, then when the Koch’s and Bush Crime Klan voted for HRC, they are all angels worthy of adoration! Go figure!

            Plus they are in bed with Bill Kristol, George Will, etc.

  10. It appears that suspects will have to play harder ball than Mueller and his team. This is scary.

    1. I think I agree. I would like to see a thorough investigation of possible Russian interference in the election, and possible collusion with the campaign. But, not at the expense of fair legal representation.

      This broad interpretation would seem to open up to examination any attorney-client discussion in which a strong case could be made the client is guilty. That cannot be the right answer. Guilty clients are supposed to have access to counsel just as innocent clients.

      1. I think I agree. I would like to see a thorough investigation of possible Russian interference in the election, and possible collusion with the campaign. But, not at the expense of fair legal representation.

        Now it is reduced to pokemon and facebook
        You have a pimple faced volunteer that is trying to set up meetings and id=s being told No and somehow that is Collusion ? > This is ridiculous .

        Only if he starts to look at Hillary and Podesta . Podesta was in bed with Putin and the only thing that came between them was a little boy.

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