The majority of the memo’s body is redacted with only one section, relating to the former chairman of the Trump presidential campaign, Paul Manafort, unclassified:
“Allegations that Paul Manafort:
• Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
• Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.”
The Aug. 2 Rosenstein memo was made public as a result of the Manafort trial. Manafort challenged the validity of Rosenstein’s appointment of special counsel Mueller, while also arguing that Mueller’s prosecution fell outside the scope of the special counsel jurisdiction.
“The Acting Attorney General has specifically confirmed to the Special Counsel in an Aug. 2, 2017, memorandum that allegations that Manafort committed a ‘crime or crimes...were within the scope of the [special counsel’s] Investigation at the time of [his] Appointment and are within the scope of the [Appointment] Order.’”
The contents of the Rosenstein memo remain classified and most, including members of Congress, don’t know what is contained within the redacted sections.
Judge Ellis continued:
“I think you’ve already conceded appropriately that this investigation that has led to this indictment long antedated the appointment of a special prosecutor; that it doesn’t have anything to do with Russia or the campaign...so that the defendant will turn and provide information on what is really the focus of the special prosecutor.”
Ellis: Yes. I have that right here, and I’m glad you raised it because 75 percent of it is blocked out, redacted. Why don’t I have a full copy of it?
Mueller team prosecutor Michael Dreeben: The only paragraphs that are pertinent to Mr. Manafort are the ones that are contained in this record.
Here’s a crucial fact: Everything that remains redacted and classified in the Rosenstein memo relates to individuals and events other than Manafort.Ellis then began his push to see the Rosenstein memo in full, noting, “If any part of it is classified, it won’t surprise you to know that a district judge is fully cleared.”
The Mueller team highlighted the sensitivity of the classified information, stating, “In the context of a confidential, sensitive counterintelligence investigation that involves classified information, it would not make any sense for that information to be conveyed publicly.”
Ellis began to focus on the government’s claims, observing, “You’re making a big deal out of it being a classified kind of thing. If that’s in any way relevant to his defense ... I'd like to have notice of it.”
The Mueller team tried to elaborate on their position:
“It’s not appropriate for the government to disclose specific subjects of an investigation when those matters may never result in a charge and when they could jeopardize ongoing criminal investigations, as well as reveal national-security matters.”
But Ellis made clear his concerns:
“You don’t really care about Mr. Manafort’s bank fraud. You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.”
Ellis later questioned the shift of other investigations, including those of Washington lobbyist Tony Podesta and former Trump lawyer Michael Cohen, to the Southern District of New York, sarcastically paraphrasing the prosecution’s reasoning for the handoff:
“We’re not interested in it because we can’t use this to further our core effort, which is to get to Trump?”
Ellis appeared particularly concerned throughout the hearing that the Mueller team was ultimately focused on finding leverage to use against President Donald Trump.
“The August 2 Scope Memorandum reflects that the Special Counsel was acting within his authority when he sought and obtained the Superseding Indictment against defendant in February 2018.”
Ellis continued:
“The record makes clear that the Acting Attorney General [Rosenstein] has required the Special Counsel to consult with the Acting Attorney General before investigating matters that might fall under the May 17 Appointment Order. Specifically, the August 2 Scope Memorandum identifies specific factual matters to be investigated by the Special Counsel.
“Notably, the August 2 Scope Memorandum limits the Special Counsel’s ability to investigate “additional matters that otherwise may have arisen or may arise directly from the Investigation” by requiring the Special Counsel to “consult [the Acting Attorney General] for a determination of whether such matters should be within the scope of [the special counsel’s] authority.
Special Counsel Investigation
The special counsel investigation is a continuation of the FBI’s probe of “Russian Interference in the 2016 Presidential election and any potential links or coordination between the Russian government and President Trump’s campaign organization.” This was confirmed by Ellis in his ruling:“On May 17, 2017, Acting Attorney General Rod J. Rosenstein appointed Robert S. Mueller, III as Special Counsel … and authorized Mueller to ‘conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.’”
During a March 30, 2017, phone call with Trump, Comey also noted he had “briefed the leadership on exactly what we were doing and who we were investigating. Comey noted he “had told him we weren’t investigating him and that I had told Congressional leadership the same thing.”
“In response to the Committee’s inquiries, the Chairman and Ranking Member received a briefing on March 15, 2017, from then-Director James B. Comey, Jr.
“[redacted] That briefing addressed the Russia investigation, the FBI’s relationship with [former UK spy Christopher] Steele, and the FBI’s reliance on Mr. Steele’s dossier in two applications it filed for surveillance under the Foreign Intelligence Surveillance Act (FISA).
“Then, on March 17, 2017, the Chairman [Grassley] and Ranking Member [Sen. Dianne Feinstein (D-Calif.)] were provided copies of the two relevant FISA applications, which requested authority to conduct surveillance of Carter Page. Both relied heavily on Mr. Steele’s dossier claims, and both applications were granted by the Foreign Intelligence Surveillance Court (FISC).”
On March 17, 2017, the Senate Select Committee on Intelligence (SSCI) received a “Classified Document [which] contained both SECRET and TOP SECRET information, including SECRET-level information regarding the identity and activities of the individual referred to in this Indictment as Male-1.”
Acting Attorney General
On Nov. 7, at the president’s request, Attorney General Jeff Sessions was replaced on an acting basis by Matthew G. Whitaker, who had been Sessions’s chief of staff.Given that Rosenstein remains in his position, it also seems likely that, similarly to Ellis, Whitaker found nothing untoward in the Aug. 2, 2017, memo.
“Mueller is expected to issue findings on core aspects of his Russia probe soon after the November midterm elections as he faces intensifying pressure to produce more indictments or shut down his investigation,” Bloomberg reported on Oct. 17, citing two U.S. officials, and adding that “Rosenstein has made it clear that he wants Mueller to wrap up the investigation as expeditiously as possible.”
Reliance on Congressional Data
In a July 15 interview with Fox News’s Maria Bartiromo, House Intelligence Chairman Devin Nunes (R-Calif.) pointed out a startling fact: The Meuller indictment in July contains the same information as the March 22 House Intelligence Committee Russia report.Trump Team Cleared Multiple Times
Notably, the Mueller investigation, intentionally or otherwise, has three times confirmed there was no collusion on the part of the Trump campaign, while also providing a legal determination that Nunes and his report on Russian interference were correct.“There is no allegation in this indictment that any American citizen committed a crime. There is no allegation that the conspiracy changed the vote count or affected any election result. I briefed President Trump about these allegations earlier this week. The President is fully aware of the Department’s actions today.”
The Mueller findings may prove to be more interesting than some are expecting.
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