Mueller Team’s Extra Powers Aren’t Shown Abusive Yet, But Could Be

Mueller Team’s Extra Powers Aren’t Shown Abusive Yet, But Could Be

At this point, there is no evidence Robert Mueller used attorneys with a dual status for inappropriate reasons, but the potential for abuse exists. Here’s why.
Margot Cleveland
By

Last week, Politico and The Hill ran parallel stories highlighting that several attorneys on Special Counsel Robert Mueller’s team identified themselves as special assistant United States attorneys (SAUSA) in the criminal case pending against Paul Manafort, President Trump’s former campaign chair. Peter Carr, a spokesman for the special counsel’s office, told Politico the SAUSA designation gave the attorneys “the same powers as a regular U.S. attorney.” SAUSA status allows a lawyer who is not a member of the local federal prosecutor’s office to act on behalf of the local U.S. attorney’s office.

From this fact, Politico’s Josh Gerstein reasoned that this “obscure special status . . . could prevent a judge from ousting Mueller’s lawyers from their role in the prosecution of” Manafort. The Hill concurred, suggesting SAUSA status would make it harder for Manafort to have the indictment tossed based on claims that Mueller’s team acted beyond the special counsel’s authority.

Yet Politico and The Hill misread the context of the special counsel’s use of the SAUSA designation. At this point, there is no evidence Mueller used attorneys with a dual status for inappropriate reasons, but the potential for abuse exists.

Let’s Start By Revisiting Where We Are

First, though, the necessary backdrop. Mueller charged Manafort in the Eastern District of Virginia with numerous counts of tax evasion, bank fraud, and failing to report foreign bank accounts. Manafort moved to dismiss the indictment, arguing that Mueller exceeded his authority as special counsel in charging Manafort with crimes unrelated to Russia’s interference with the 2016 presidential election.

Last month, Judge T.S. Ellis heard arguments on the motion and his direct questioning of the special counsel’s team and somewhat sympathetic ear to Manafort’s position dominated the news cycle for several days. Ellis questioned why the special counsel’s office was prosecuting Manafort for crimes that occurred years earlier and had nothing to do with the 2016 election. And why did the special counsel’s office maintain control over Manafort’s criminal case, while referring its separate case against President Trump’s personal attorney, Michael Cohen, to the Manhattan-based U.S. attorney’s office?

Ellis also wanted to know the full scope of the special counsel’s authority, and ordered Mueller to file an unredacted copy of acting attorney general Rod Rosenstein’s August 2, 2017 memo that purported to clarify the authority granted Mueller in the May 2017 special counsel appointment. Mueller’s team complied with that directive last week. That led Sen. Charles Grassley to direct Rosenstein to provide the Senate Judiciary Committee—which he chairs—with the same information.

Against the backdrop of Ellis’ comments, Politico and The Hill read Mueller’s decision to obtain a joint designation of SAUSA for at least four of his attorneys (Andrew Weissmann, Greg Andres, Kyle Freeny, and Scott Meisler) as significant. It is not. Rather, the SAUSA designation allowed the special counsel’s office to comply with the local rules for the Eastern District of Virginia.

Those rules require “federal government attorneys representing the interests of the United States, including the United States Department of Justice,” to “secure local counsel by working with an assistant United States attorney [AUSA] assigned to the Eastern District of Virginia.” Mueller, however, wanted to keep tight control over the Russia investigation. So rather than work with a local AUSA, the special counsel apparently elected instead to obtain the SAUSA designation for his own lawyers, which is allowed. (Mueller later relented, though, telling Ellis “[w]e took your admonition to heart,” and thus arranged for a local AUSA to join them for the proceedings.)

In this context, then, Mueller’s use of the SAUSA designation proves nothing nefarious. It also has no effect on Manafort’s motion to dismiss. In that motion, Manafort argued Mueller acted beyond his special counsel authority and that any criminal case would thus need to be brought by the Eastern District of Virginia’s U.S. attorney’s office. The SAUSA designation did not affect this argument because the filings were still submitted on behalf of Robert S. Mueller III, as special counsel.

Further, in opposing Manafort’s motion to dismiss, Mueller’s office did not argue that the SAUSA status allowed the government to pursue charges outside the scope of the special counsel’s appointment. By not making that argument, the government waived any reliance on the SAUSA appointment as a basis for prosecution.

Mueller Doesn’t Need SAUSA Power to Prosecute Manafort

While the SAUSA appointment will not help the special counsel fend off Manafort’s motion to dismiss, Mueller doesn’t need to rely on the additional authority SAUSAs possess as a representative of the local U.S. attorney’s office because, as I explained last month, Manafort is destined to lose. That’s because Rosenstein granted “Mueller broad powers, including the authority to investigate ‘any links . . . between the Russian government and individuals associated with the campaign of President Donald Trump.'”

“While Manafort’s time with the Trump team proved transient, his association with the presidential campaign, links with Russia, and work for the government of the Russian-backed Ukrainian president fell within the special counsel’s expansive reach.”

Since then, Judge Amy Berman Jackson, who is presiding over the special counsel’s second criminal case against Manafort in the D.C. District Court—where he is facing multiple counts of money-laundering and failing to register as a foreign agent for Ukraine—rejected an identical argument by Manafort’s legal team. Although Jackson’s decision does not bind Ellis, the same analysis will likely result in Ellis denying Manafort’s motion to dismiss the criminal charges pending in the Virginia district court.

But while Manafort is primed to lose on the merits of his motion to dismiss, Mueller is poised to lose in the court of public opinion. As I explained following the proceedings before Ellis, the cantankerous Ronald Reagan holdover brought media attention to several key facts: that the “charges against Manafort are unrelated to Russia’s meddling in the 2016 election;” “that the government had long known of Manafort’s dealings with Ukraine but only decided to indict him after Mueller gained control of the investigation—to make him ‘sing,’”; and “that Rosenstein manipulated his statutory right to appoint a special counsel, something supposedly allowed only in limited circumstances.”

Now, thanks to The Hill and Politico’s reporting, we see that Mueller’s team members not only possess the virtually unlimited authority granted the special counsel’s office by Rosenstein, they also have the broader, general powers of SAUSA—should they ever decide to exercise that authority. Further, while there is no evidence at this time that the dual-designated attorneys are misusing their status to exceed the already broad reach of the special counsel’s investigation, Grassley should consider expanding the questions he posed to Rosenstein to assure that is the case—and remains the case.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame.

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