Special counsel Robert S. Mueller III on Monday accused Paul Manafort — President Trump’s former campaign chairman — of breaching his cooperation agreement. In doing so, Mueller may have created the opportunity to release information outside of grand jury indictments and a final report, sidestepping acting attorney general Matthew G. Whitaker.
Manafort’s attorneys disputed allegations that he had repeatedly lied to federal agents since entering the deal in September. Mueller vowed to file a detailed sentencing memo with the court “that sets forth the nature of [Manafort’s] crimes and lies, including those after signing the plea agreement.”
Now, the public could potentially see details from the special counsel’s investigation in the Manafort sentencing memo and its accompanying hearing, which will likely involve details about alleged contacts between Russians and the Trump campaign.
The Mueller special counsel report
Whitaker plays a significant role in whether Mueller’s findings are made public, according to attorney Jonathan Meyer, a partner at Sheppard Mullin and former Justice Department senior official.
When a special counsel concludes a grand jury investigation, Justice Department regulations require he write a confidential report detailing his decision to indict or decline to indict its subjects and submit it to the attorney general.
The attorney general must then notify the chairs and ranking members of the House and Senate Judiciary committees that the special counsel investigation has ended. The attorney general can forward the final report to Congress but is not required to. He is also authorized to release the document to the general public, if he determines it’s in the public interest.
For the time being, Whitaker, an outspoken critic of the Russia probe who has decried calls to recuse himself as Jeff Sessions did, is the acting attorney general.
Trump’s controversial appointment has been called unconstitutional. Prominent figures across party lines opposed it, including George Conway and former acting solicitor general Neal Katyal, and Senate Democrats filed a lawsuit challenging it.
Since he has not recused himself from the special counsel investigation, Whitaker — and presumably, through him, the White House — will get the first look at the Mueller report. It will be his decision to whether to disclose it to Congress or the American people.
As a practical matter, sitting on a report of this magnitude and media interest would be difficult. If the acting attorney general tried to restrict access, Meyer said there are several other ways Mueller’s findings could become public.
“It’s safe to say there’s going to be strong public pressure to release some version of the report, and since the Democrats will soon take control of the House, they have subpoena power as a measure to get it,” Meyer said, though a legal fight would ensue between Congress and the executive branch.
Another way the information may come out is through filings by Mueller himself.
In the past, he has intentionally released information by making certain indictments public and painstakingly detailed. Mueller could do the same with the Manafort sentencing memo, which would neither be covered by executive privilege nor in Whitaker’s reach.
At the same time, the sentencing memo may contain information that could hinder his ongoing work. Up to this point, the Mueller operation has been leakproof, with no unnecessary disclosures, making it interesting whether he requests to have the memo sealed.
The Manafort sentencing memo
Many attorneys were struck by the extent Manafort’s lawyers appeared to distance themselves from their client. In Monday’s joint pleadings they wrote, “[Manafort] believes he has provided truthful information.”
David Sklansky, co-director of Stanford Law’s Criminal Justice Center, told The Post that it is significant “that Manafort’s attorneys won’t even attest to ‘we think he’s telling the truth.’ ”
To decide whether Manafort breached the agreement, the judge will review Mueller’s sentencing memo and hold a hearing. Mueller’s team, bearing the burden of proof, will be required to prove two things: What did Manafort tell them and why is it a lie?
Mueller will need to introduce evidence about the truth of matters Manafort was questioned about, Sklansky said.
“Prosecutors are allowed to use grand jury testimony to prove substantive evidence at the hearing. The fact that information may have been obtained in the grand jury will not bar Mueller from bringing it up,” he said.
The hearing will likely be a matter of public record. The ultimate question — whether Manafort violated terms of the deal — will be out of Whitaker’s hand and up to the sentencing judge.