The transcript from the U.S. Special Counsel -vs- Paul Manafort has been released (full pdf below). The entire transcript of the arguments between the Special Counsel lawyers, Paul Manafort Lawyers and Federal Judge T.S. Ellis III are well worth reading.
As noted yesterday Judge Ellis is the first legal entity to identify the origin of the special counsel investigative authority as a troubling issue. This is likely to become a much bigger story as people catch on to the ramifications.
It is only now coming to light how Asst. Attorney General Rod Rosenstein essentially appointed the Special Counsel to take over the counterintelligence investigation originally begun by the FBI in 2016. Also previously unknown: part of the initiating mandate included the special counsel being granted use of a sketchy FISA Court Title-1 surveillance warrant initially applied against Carter Page in October 2016.
Asst. AG Rod Rosenstein gave the special counsel the counterintelligence investigation and also gave them FISA Title-1 surveillance warrant authority; which allowed Robert Mueller to retrieve all communications (e.v.e.r.y.t.h.i.n.g) belonging to any person, entity or group, within two-hops of former unofficial campaign aide Carter Page. By extension this covered almost all the campaign officials, and also most of the Trump administration.
This is a critical point often misunderstood. When Mueller was appointed in May 2017, they began a criminal investigation (Title 3) by taking over the FBI counterintelligence investigation (Title 1). By design the counter-intel structure meant the special counsel had access to the entire gamut of active surveillance on almost every official in the Trump Administration; and every official in congress – without having to get a search warrant.
Ordinarily, under U.S. Title-3 criminal statute the investigative body, U.S. Attorney or Special Counsel, would need to go before a judge to swear out the reasoning for a search warrant and prove probable cause. Because the special counsel took Title-1 investigative authority (counterintelligence operation), they subverted domestic search and seizure protections applicable toward U.S. persons having nothing to do with foreign intelligence.
This melding of Title-1 and Title-3 legal authority is essentially what underpins Judge Ellis’s questioning. Judge Ellis began asking, and proving, that a 2005 and 2007 tax and banking case against Paul Manafort had nothing to do with a 2017 counterintelligence investigation about Russian interference in the 2016 U.S. presidential election.
Digging into this odd framework results in the judge demanding the U.S. Attorney to reconcile/explain the origination of the special counsel investigation (2017); and the instructions therein; against the background of the case before him (Manafort), which has nothing to do with the originating mandate of the special counsel (2016 election matters).
The entire back-and-forth is well worth a read. It’s quite interesting, because there’s likely to be precedent established here.
Right from the outset the court begins questioning the entire premise of the special counsel’s expanded authority. Page #4:
The resulting exchange goes on for quite some time, generally circling back to the central issue. What is the originating authority of this investigation? and how that that specific authority apply to a case that has nothing to do with Russian election interference matters.
To defend their position the special counsel team was trying to reconcile how their May 2017 investigative mandate contains more instructions than outlined to the public.
On Page 32 of the transcript, while trying to specify how the initiating special counsel mandate has bearing upon a decades-old banking/tax case, U.S. Attorney Dreeben tells Judge Ellis the detailed instructions were delivered in person:
The judge wasn’t buying it, and neither are the American public.
Here’s the full transcript:
Special Counsel Robert Mueller began his investigation of Russian interference and the possibility of Trump campaign collusion, right where the 2016 and 2017 FBI counterintelligence operation left-off. This is additionally supported by reviewing the original investigative instructions as outlined by Rod Rosenstein the day Robert Mueller was appointed as Special Counsel:
The key phrase here is: “to serve as Special Counsel to oversee the previously-confirmed FBI investigation of Russian government efforts to influence the 2016 presidential election”… Here, Rosenstein is clearly instructing Robert Mueller to pick-up the former Counterintelligence Investigation previously headed by FBI Asst. Director of Counterintelligence Bill Priestap, and his #2 FBI Agent Peter Strzok.
So there we have the three areas of direct authority: ¹Links or coordination between the Russian Government and the campaign of Donald Trump. ²Matters that may arise from the investigation of the Russian government and the campaign of Donald Trump. And ³other matters within the scope of 28 C.F.R. § 600.4(a). [<- ie. ‘Jurisdiction‘]
So there’s the instructions to Robert Mueller and his team on May 17th, 2017.
As an outcome of this May 2017 reassignment of investigative authority, Mueller took over from Bill Priestap. The Special Counsel took over the investigation from the FBI.
Without the July 18th 2017 FISA extension (provided by AAG Rod Rosenstein), Robert Mueller would not have predicate investigative authority to reach into the accounts of his targets and extract their personal communication. Mueller would have needed to go to court for a search warrant; he is conducting a criminal investigation; he would have needed probable cause. However, by applying the 2016 extended FISA Title-1 warrant, the Mueller special counsel used the previously granted legal authority from the FISA Court to extract all the information they wanted to review.
This is the issue explained by Representative Louie Gohmert at the beginning of this interview. WATCH: