Mueller stretches the law in calling Manafort's own lawyer as witness

Mueller stretches the law in calling Manafort's own lawyer as witness
© Greg Nash

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.”

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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.

This 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.”

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 ClintonHillary Diane Rodham ClintonGrassley blasts Democrats over unwillingness to probe Clinton GOP lawmakers cite new allegations of political bias in FBI Top intel Dem: Trump Jr. refused to answer questions about Trump Tower discussions with father MORE 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.