A federal judge overseeing one of two pending criminal cases against Paul Manafort, the former Trump campaign chairman, is weighing the possibility that the two different courts could issue conflicting rulings on disputed issues such as the legality of the FBI’s searches and perhaps even special counsel Robert Mueller’s authority to bring the prosecutions in the first place.
During a two-and-a-half-hour hearing on Wednesday in U.S. District Court in Washington, Judge Amy Berman Jackson did not say precisely what problems might arise if she and her colleague in Alexandria, Virginia, wound up disagreeing, but she did ask a lawyer on Mueller’s team whether the prosecution had discussed that prospect.
Prosecutor Scott Meisler was noncommittal, but acknowledged that such a divergence would raise “difficult questions.”
“It has come up,” Meisler said. “I can’t say we’ve reached a definitive conclusion to present to the court today.”
In Washington, Manafort faces charges of money laundering and failing to register as a foreign agent for his work related to Ukraine. In federal court in Virginia, he’s charged with tax evasion, bank fraud and failing to report foreign bank accounts. The two cases appear related in some ways, at least in terms of Manafort’s sources of income.
In addition, some of the evidence stems from the same searches the FBI carried out last year at Manafort’s home and a nearby storage locker containing his financial paperwork and other records.
The sequence of the rulings and anticipated schedules for the two parallel cases is already becoming convoluted.
Last week, Jackson ruled on one major issue common to both cases: whether Mueller’s team had the authority to indict Manafort in the first place. She rejectedthe defense’s bid to toss out the Washington indictment on those grounds.
The Virginia-based judge, T.S. Ellis III, has not yet ruled on that issue, but Manafort may stand a better chance of winning there. During a hearing earlier this month, Ellis suggested that Mueller was seeking “unfettered” power and pursuing charges far afield from his core mission of exploring potential collusion between the Trump campaign and Russia. He noted that aspects of the Virginia case predate by a decade or more Manafort’s several months at the helm of the 2016 Trump campaign.
Ellis has scheduled a July 10 trial in the Virginia case, while Jackson has the D.C. case set to open on Sept. 17. The sequence makes it likely that Jackson will rule on several pivotal issues before Ellis does, even though the case he’s handling is scheduled to go to trial first.
Typically, District Court judges are not required to abide by the rulings of other judges at the same level, but they usually take notice of their colleagues’ rulings and try to explain any disagreement.
During the lengthy hearing before Jackson on Wednesday, the main issue in contention was the legality of the search the FBI conducted last May of Manafort’s storage locker and in July at his Alexandria condo. The defense appeared to be fighting an uphill battle, with Jackson politely skeptical of many of Manafort’s lawyers’ assertions.
However, it seemed possible that Jackson would hand the defense some minor or symbolic victories, like ruling that the locker search was too broad because it specified no time frame for records that FBI agents were allowed to seize. That might lead to exclusion of some of the older records Mueller’s team has, but probably won’t undermine the case.
Jackson also seemed open to the defense’s arguments that agents had little reason to believe that digital cameras or music players might have relevant evidence, even though the FBI copied the files on those devices found in Manafort’s apartment, apparently considering them part of the kind of electronic media authorized to be seized under a search warrant issued by a federal magistrate judge.
One of Manafort’s attorneys, Thomas Zehnle, argued that FBI agents got an unconstitutional first glimpse at the storage locker by persuading a Manafort assistant who had a key to open it. Then agents got a warrant for records believed to be inside.