Rosenstein Secretly Authorized Mueller to Investigate Manafort -- After FBI Raided Manafort's Home

By Susan Jones | April 4, 2018 | 7:08am EDT
Deputy Attorney General Rod Rosenstein (Photo: Screen grab/C-SPAN)

( - On May 17, 2017, Deputy Attorney General Rod Rosenstein wrote a brief memo appointing Robert Mueller as special counsel and authorizing him to investigate alleged Trump-Russia "links and/or coordination" -- and "any matters that...may arise directly from the investigation."

It was a vague memo, giving Mueller's investigation wide latitude.

But three months later, on August 2, Rosenstein wrote a second, classified memo that has just been released in a batch of court filings by the special counsel’s team.

In that August 2 memo, Rosenstein says his May 17 order “was worded categorically in order to permit its public release without confirming specific investigations involving specific individuals.”

Rosenstein said his August 2 memorandum “provides a more specific description of your (Mueller’s) authority. The following allegations were within the scope of the Investigation at the time of your appointment and are within the scope of the Order.”

The unredacted part of Rosenstein's August 2 memo authorizes Mueller to investigate allegations that Paul Manafort, Donald Trump’s former campaign chairman, “commited a crime or crimes by colluding with Russian government officials” and “commited a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President  Viktor Yanukovych.”

Much of the August 2 memo is redacted, until the end, where Rosenstein tells Mueller:

“You therefore have authority to continue and complete the investigation of those matters…”

As Fox News noted, Rosenstein’s August 2 memorandum specifically authorizing Mueller to investigate Paul Manafort's financial dealings came one week after the FBI’s July 26 predawn raid on Manafort’s home, where the FBI reportedly seized Manafort's bank records and tax documents. So Manafort was already under investigation for his Ukraine connections and financial dealings when Rosenstein issued his specific authorization to Mueller on Aug. 2.

In a court filing last week, Manafort's attorneys moved to dismiss Mueller's superseding indictment against Manafort, arguing that the special counsel has gone way beyond the authorization contained in Rosenstein's May 17 memorandum -- the only memo they knew about at the time.

According to Manafort's court filing:

The (May 17) order authorizes the Special Counsel to investigate a specifically identified matter -- alleged coordination between the Russian government and the Trump campaign during the 2016 election. But it then goes further, authorizing investigation and prosecution of whatever matters may “arise” during that investigation, without consultation with or approval from the Acting Attorney General. That additional power is tantamount to a blank check. And it is one the Special Counsel has cashed, repeatedly.

The superseding indictment does not focus in the slightest on alleged coordination between the Russian government and the Trump campaign. It focuses instead on Mr. Manafort’s consulting work in Ukraine, which ended in 2014, years before the Trump campaign even launched, as well as Mr. Manafort’s tax filings from 2006 to 2014 and his personal finances, which likewise have no connection to coordination between the Russian government and the Trump campaign. The regulations do not allow for such an expansive appointment.

The superseding indictment also goes beyond any authority that the appointment (May 17) order even purports to grant. The appointment order purports to empower the Special Counsel to investigate and prosecute matters that “arise directly from” the investigation. But the charges in the superseding indictment go well beyond that scope, covering alleged acts that politically accountable prosecutors already knew about and had not prosecuted for years. That old news could not have “arise[n] directly from” the Special Counsel’s investigation.

Because the Acting Attorney General lacked power to grant the Special Counsel jurisdiction to bring the charges now before this Court, the Special Counsel lacks authority to bring them. And the charges exceed any authority the appointment order purports to grant. Because the Special Counsel lacks authority, the Court lacks jurisdiction. The superseding indictment must be dismissed.

In response to Manafort's motion to dismiss the superseding indictment, the Mueller team released Rosenstein's second, secret August 2 memorandum – again, dated a week after the raid on Manafort’s home.

Appearing on Sean Hannity's show Tuesday night, retired Harvard Law School Professor Alan Dershowitz said there's "something very wrong" with Rosenstein retroactively authorizing Mueller to look into Manafort's dealings with Ukraine from 2010-2014, long before Trump even announced he was running for president.

The special counsel should have very narrow jurisdiction, and it should be set out in advance so everybody can see it and know it. You know, the Constitution talks about ex post facto (retroactive) criminal laws. The policies behind that are fair warning and constraining the government. And the government, when you have a special prosecutor, should know, and everybody should know, what he's entitled to look at and what he's not entitled to look at.

This special prosecutor is going to look at everything. He's beginning to look at President Trump's personal financial matters before he was president. Will he start looking at the women who were alleging actions against him? Where does it stop? We know that the Clinton special counsel started with Whitewater and ended up with the blue dress. And that's just wrong.

Rosenstein appointed Mueller as special counsel after Attorney General Jeff Sessions recused himself from any matters involving Russia arising from his time with the Trump campaign. Republicans on the House intelligence committee said Rosenstein signed one of the FISA applications extending the FBI's surveillance on Carter Page. Republicans argue that the basis for that surveillance was flimsy at best.

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