New Motion Again Shows Special Counsel’s Case Against Manafort Has Nothing To Do With Collusion

New Motion Again Shows Special Counsel’s Case Against Manafort Has Nothing To Do With Collusion

A new court motion proves again that the special counsel’s charges against Paul Manafort are utterly unrelated to Russia, President Trump, or Manafort’s brief stint as a campaign advisor.

Special Counsel Robert Mueller has no authority to prosecute Paul Manafort. A motion filed on Friday in the Eastern District of Virginia makes that conclusion clear once again.

With the July 25 date for Manafort’s trial fast approaching, attorneys have begun filing the normal pretrial motions. On Friday, lawyers representing Manafort and the special counsel filed separate motions in limine with presiding judge T.S. Ellis III. A motion in limine, simply put, is a motion presented to the court prior to trial that asks the judge to rule that specific evidence is inadmissible and to order the opposing party not to elicit testimony related to that subject matter.

There is nothing odd about filing a motion in limine. Litigants regularly move to exclude evidence before the start of trial because once a jury has heard the problematic testimony, the damage is done. The jury can’t “unhear” the testimony and, other than declaring a mistrial, the most the court can do is instruct the jury to disregard the testimony. A fat lot of good that does!

Nonetheless, the motion in limine that Manafort’s attorneys just filed are instructive for another reason: It proves yet again that the special counsel’s charges against Manafort are utterly unrelated to Russia, President Trump, and Manafort’s brief stint as a Trump campaign advisor.

Manafort’s attorneys argued that Ellis should exclude any evidence or argument by the special counsel “[c]oncerning Mr. Manafort’s or the Trump campaign’s alleged collusion with the Russian government.” Why? Because that evidence—if it existed—is irrelevant to the criminal charges Mueller brought against Manafort in the Eastern District of Virginia, and under Federal Rules of Evidence (Rule 402, to be precise), “[i]rrelevant evidence is not admissible.”

Another rule of evidence, Rule 401, defines relevant evidence as evidence that “has any tendency to make a fact more or less probable than it would be without the evidence” and “is of consequence in determining the action.” What constitutes “relevant evidence” then depends on the facts of the case and the nature of the claims.

As Manafort’s attorneys skillfully argued, “Here, evidence or argument relating to Mr. Manafort’s work for then-candidate Trump’s campaign in 2016 or the Special Counsel’s investigation of the campaign’s alleged collusion with the Russian government is wholly irrelevant to whether Mr. Manafort’s personal income tax returns were false, whether he willfully failed to file reports of foreign accounts, and whether he conspired to commit, or committed, bank fraud.”

While the government has yet to respond to Manafort’s motion in limine, and Ellis has yet to rule, Manafort’s argument is solid. Mueller’s case against Manafort has nothing to do with Trump or the claimed Russia collusion. Ellis recognized as much during an earlier hearing on Manafort’s motion to dismiss the indictment as beyond the special counsel’s authority.

Ellis has also not yet ruled on Manafort’s motion to dismiss. Frankly, the argument Manafort presented in his motion to dismiss was flawed: Manafort argued that Mueller acted beyond the authority Acting Attorney General Rod Rosenstein had granted him. But, as I explained at the time, Rosenstein provided the special counsel with virtually unlimited authority, so Mueller’s indictment of Manafort fell within it.

However, since then, I have revisited Attorney General Jeff Sessions’ recusal statement, and as I detailed last month, Sessions recused only from matters related “to the campaigns for President of the United States.” Thus, while Rosenstein had authority to appoint a special counsel to investigate potential crimes arising during the campaign, Rosenstein could not authorize Mueller to prosecute unrelated offenses, such as the bank and tax fraud charges brought against Manafort in the Eastern District of Virginia.

Because Rosenstein lacked the authority to appoint Mueller as special counsel over such matters, Mueller, in turn, lacks the authority to prosecute Manafort for those crimes. Manafort’s motion in limine exposes this reality. The question remains whether Judge Ellis or anyone else will notice—or care.

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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