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jberryhill

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Gender: Male
Hometown: Delaware
Member since: Fri Jan 20, 2006, 08:14 PM
Number of posts: 61,685

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An IMHO important passage in the recent DC Manafort court opinion

As you may recall, there are two criminal proceedings going on against Paul Manafort - one in the US District Court for the District of Columbia (The DCDC), and one in the US District Court for the Eastern District of Virginia (The EDVA).

Both prosecutions were brought by Mueller, but involve different sets of transactions and consequent alleged crimes arising from Manafort's profitable relationships with the former Russian-backed government of Ukraine.

In both cases, Manafort's defense has filed motions seeking to dismiss the indictments on the grounds that they were out of scope of the special counsel's mandate, that relevant DoJ guidelines were not followed, and various other theories.

There was something of a mass freakout at DU over the recent hearing on these similar motions in the EDVA. While the EDVA still has that motion under advisement, the DCDC issued its decision on the motion.

The DCDC found the indictment in that case to be within the mandate, that DoJ internal rules do not create third party rights, and that, in any event, the relevant DoJ guidelines were followed.

The full decision is here:

https://www.courtlistener.com/recap/gov.uscourts.dcd.190597/gov.uscourts.dcd.190597.301.0_2.pdf

...and it is organized by topic:

I. The investigation of Manafort was an appropriate exploration of a “link” between a
person associated with the campaign and the Russian government.

II. The regulations do not create judicially enforceable rights.

III. The Appointment Order comports with the regulations.

IV. The Special Counsel received a specific factual statement of the matters assigned to
him, and the Acting Attorney General was the one who decided, as the regulations
require, that the Special Counsel’s jurisdiction includes the matters in the indictment.


Section II, starting at page 20, is interesting in part because it is not necessary. Because in Section III, the court finds that the appointment order was compliant with the regulations, then whether the DoJ internal rules create rights that outside parties may rely upon doesn't matter.

There are two reasons that a court will do something like that. One reason would be that if, on appeal, the appellate court were to find that part III was not valid, then part II provides the cure to that. In other words, even if on review it was determined that the appointment order did NOT comport with the DoJ internal rules, part II is a backstop which says "but it doesn't matter anyway".

The other reason a court may do that, is what makes Section II potentially interesting.

It starts with the conclusion:

Furthermore, Manafort cannot move to dismiss his complaint under the Federal Rules of
Criminal Procedure based upon a claimed violation of the Department of Justice Special Counsel
Regulations because those regulations are not substantive rules that create individual rights; they
are merely statements of internal departmental policy. This is an independent basis to deny his
motion.


...and then proceeds to take a look at the rule in question to see whether they are "substantive" rules, or rules of DoJ policy, organization, etc....

A close review of the regulations reinforces the conclusion that they are internal rules
intended solely to guide the Attorney General and other Department personnel. The regulations
describe the circumstances that may warrant the appointment of a Special Counsel, the alternatives
the Attorney General may consider when those circumstances arise, and the qualifications an
individual appointed to serve must bring to the task. 28 C.F.R. §§ 600.1–03. The regulation
singled out in Manafort’s motion statesthat the Attorney General will establish a Special Counsel’s
jurisdiction, and it provides that it will be the Attorney General who will determine whether to
grant additional jurisdiction or assign new matters that arise to the Special Counsel or elsewhere
within the Department


Before delving into applicable specific cases, the court makes a fairly broad and important statement:

The case law also makes it clear that internal agency regulations that were not required by
the Constitution or a statute are not enforceable by the defendant in a criminal prosecution.
See
United States v. Caceres, 440 U.S. 741, 749–54 (1979) (holding that IRS’s violation of internal
IRS electronic surveillance regulations did not require the court to suppress a tape recording of a
call between the taxpayer and the agency during the taxpayer’s trial for bribery); United States v.
Weisz, 718 F.2d 413, 435 n.137 (D.C. Cir. 1983) (rejecting defendant’s suggestion that failure to
comply with FBI regulations can require reversal of a conviction).


In other words, any internal DoJ regulations that aren't there in order to safeguard a particular Constitutional or statutory right of a criminal defendant, simply do not matter.

The court then proceeds to note that Manafort's defense took a line out of context from the dispute over whether Nixon could broadly assert executive privilege against the subpoena of a special prosecutor, and takes some time to flesh out why the defense's citation was out of context. Manafort had quoted a line from US v. Nixon to the effect that DoJ regulations "have the force of law"...


In support of this argument, Manafort lifts one sentence from United States
v. Nixon, 418 U.S. 683 (1974), the case in which the Supreme Court decided that a President’s
claim of executive privilege could be overcome by a prosecutor’s showing of need.
Def.’s Mot.
at 22. In that opinion, the Court stated that the regulation appointing the Watergate Special
Prosecutor had “the force of law.”
Def.’s Mot. at 22–23, citing Nixon, 418 U.S. at 695. But Nixon
concerned a different regulation promulgated for a different purpose, and the case does not stand
for the proposition that the regulations at issue should be read to confer any enforceable rights on
the defendant.

In Nixon, the Attorney General had issued a regulation delegating authority to a Special
Prosecutor to investigate “all offenses arising out of the 1972 Presidential Election.” 418 U.S. at
694 n.8. As part of his investigation, the Special Prosecutor issued a subpoena to the President for
the tape recordings of conversations in the Oval Office, and the President resisted compliance on
the basis of executive privilege. Id. at 686–89. When the Special Prosecutor filed an action to
enforce the subpoena in court, the President argued that the court had no jurisdiction to hear the
case because the assertion of privilege was an intra-branch dispute between the President and a
subordinate involving a political question. Id. at 692–93. President Nixon also argued that because
the Executive Branch has exclusive authority and absolute discretion to decide whether to
prosecute a case, the President, as head of the branch, has the final word in determining what
evidence is to be used in any particular criminal case. Id.


The Supreme Court rejected the President’s arguments. In reaching its decision that the
judiciary had the responsibility under the Constitution to decide the question of the availability of
the privilege, it began by eschewing the parties’ formulations and characterizing the nature of the
dispute for itself. The starting point of the analysis was that the evidence was being sought in
connection with a pending criminal prosecution being brought in the name of the United States.
Nixon, 418 U.S. at 694. The Attorney General of the United States had, pursuant to the federal
statutes that authorized him to appoint subordinate officials, delegated the authority to represent
the United States in that case to the Special Prosecutor. Id. And given “these specially delegated
duties,” the regulation gave the Special Prosecutor “explicit power” to address issues unique to
“these particular matters,” such as “to contest the invocation of executive privilege.”
Id. at 694–
95.

The Court then said, “[s]o long as this regulation is extant, it has the force of law,” and the
Executive Branch was bound by it. Id. at 695.


In other words, the relevant regulation having "the force of law" was the regulation allowing appointment of the special prosecutor itself, but that, once the special prosecutor was appointed, the special prosecutor had the power to:

address issues unique to "these particular matters," such as "to contest the invocation of executive privilege."

Okay, so why am I fascinated by this passage of the decision?

Who can name some OTHER statement of DoJ policy which has received a lot of attention lately as to whether it does, or does not, establish a right on which a prospective defendant might attempt to rely?

"The case law also makes it clear that internal agency regulations that were not required by
the Constitution or a statute are not enforceable by the defendant in a criminal prosecution."


Let that sink in for a bit.

Remember ABSCAM? Seven members of Congress bagged in one FBI operation

There was a comment a while back asking if the speech and debate clause of the Constitution prohibited the criminal investigation of members of Congress for activities involving their official activities.

The speech and debate clause provides that members of Congress:

...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

For those that missed it, ABSCAM was a pretty ballsy sting operation originally set up by the FBI to investigate official corruption connected with the Atlantic City casino business, but expanded into some amazing fictional scenarios set up to offer bribes to members of Congress. They had people pose as front men for a fake company that was claimed to be owned by wealthy Saudi Arabians.

If you don't remember it, or weren't around at the time, take a look at how they brought these guys down:

https://en.wikipedia.org/wiki/Abscam#Convictions

Richard Kelly's appeal was something of an amusement:

In 1982 the conviction of Richard Kelly was overturned on the grounds of entrapment. Kelly, the sole Republican, said that he was only pretending to be involved with the bribery from Abdul Enterprises. He claimed that he was conducting his own operation dealing with corruption and that the FBI was ruining his own investigation. However, an appeals court upheld the conviction and Kelly served 13 months in prison.

What was hilarious about the "entrapment" claim was that it boiled down to saying, "Well of course if you offer a bribe to a Congressman, he'll take it!"

Watch how NBC broke the story:



The videos of the meetings were great stuff too.

This guy thinks he's going to outwit the FBI:







A little background on Peter Gleason - the lawyer seeking to seal Cohen records on Schneiderman

Ahem... from 2012 - the relevant time frame:


https://www.theguardian.com/world/2012/mar/22/peter-gleason-new-york-apartment

Looking relaxed in an open-neck shirt in his Elvis-inspired living room, Peter Gleason shows little concern over betting his $2.5m apartment on the word of an alleged New York madam.

But then again, nothing about the lawyer's involvement in the case of Scottish-born Anna Gristina – the alleged mastermind of a high-end Manhattan prostitution ring – has been conventional.

Even before opting to put up his well-heeled apartment for her bail, the 48-year-old played an intriguing role in Gristina's tale – part lawyer, part crusader and, he has said, part saviour.

...

But intrigue continues to swirl over possible names in Gristina's little black book, if such a thing ever existed. If Gleason is aware of such a directory – much sought after by New York's district attorney, it has been reported – he is keeping it to himself. "I never asked her if there was a black book, and as far as I'm concerned there is no black book," he said. If that is the case, it will come as a bitter disappointment to prosecutors and a hungry New York media pack – and cause many to wonder what the point of the five-year investigation was.



Gleason was attorney for the madam.

Schneiderman beat up two of the women (which is why they couldn't go to police).

They were referred to Gleason to arrange compensation.

Trump and Cohen come in via Trump's "modeling agency".

No agency would send escorts to Schneiderman anymore, so he started freelancing.

The real reason AT&T was paying Cohen....

No shit. This was predicted years ago.


AT&T Insiders Amusingly Attempt To Explain Cohen Payments


Oh boy....

https://www.washingtonpost.com/politics/cohens-600000-deal-with-atandt-specified-he-would-advise-on-time-warner-merger-internal-company-records-show/2018/05/10/cd541ae0-5468-11e8-a551-5b648abe29ef_story.html?utm_term=.327d5ba8e27c


The documents detail the full scope of Cohen’s $600,000 deal with AT&T and how his contract specified that he would provide advice on the $85 billion merger, which required the approval of federal antitrust regulators.

...

The $600,000 that flowed to Cohen from AT&T was about 3.5 percent of the $16.8 million the company spent on lobbying in 2017, according to disclosure forms.

...

The internal AT&T documents show that Cohen was supposed to spend half his time on “legislative policy development” and the other half on “regulatory policy development.” Payments to Cohen were approved by two executives in AT&T’s public affairs office in Washington.


Because, hell yeah, when I need advice on telecom legislative and regulatory policy development, I'm going to call a guy who launders money through real estate and the taxi medallion racket.


The full list of Columbus Nova domain names - orangecreams.com?


There was an interesting report of domain names which had been registered by the Russian-controlled company that had made payments to Michael Cohen.

While it appears that they dumped or allowed many to expire (and some may have since been re-registered by other parties), the full list of names which had been associated with their principal includes some interesting gems. Some of these go back to 2005, and others were registered as recently as 2016.

Based on the DomainIQ database, which tracks historical associations between email addresses and domain names, I looked up the complete list associated with their principal, and there are some interesting ones in there. I've highlighted a few for further discussion later when I have some time.

1-800getalife.com
alternatert.com
grlstudios.com
guardtracking.com
hayadoing.com
webenese.com
weblip.com
bayviewfield.com
blowingpoint.com
chalamanco.com
cntg.com
donabon.com
donbones.com
donbonz.com
donobon.com
eginix.com
ethertouch.com
fixgrafix.com
frederickintrater.com
fredintrater.com
igiox.com
isconimaging.com
kakvashafamilia.com
kindredtouch.com
nomesane.com
palsam.com
pisarri.com
pobolob.com
renovamedia.com
renova-usm.com
renovausm.com
scoobeedoobeedoo.com
shandax.com
sundayinnewyork.com
sundayny.com
frederickintrater.net
hayadoin.net
intraternet.net
rendr.net
flitchy.com
blinze.com
mishuginah.com
amalte.com
droozl.com
fandaz.com
flaple.com
phlintz.com
shoalbaywest.com
iamwel.com
lamwel.com
fixgraphic.com
coritobay.com
junksholebay.com
marite-te.com
maritete.com
colorseparator.net
hairycoo.com
hielancoo.com
columbusnova.net
columbusnova.org
cornacchia.org
hudsoncap.org
killerdesign.org
webanimator.org
intrater.us
colorseparator.info
fintrater.com
genarorossi.com
matiasstirling.com
weakandstrong.com
spaseba.com
spasebo.com
intrater.biz
pisarri.info
tfc-llc.com
genaro.mobi
intrater.mobi
stuxe.com
knuckledog.com
cnmerchantbank.com
stuxes.com
olovon.com
orangecreams.com
strategictees.com
transfundconsult.com
cnmerchantbanking.com
strategictees.org
strategictees.us
wisdomwornwell.com
wisdomwellworn.com
baqarat.com
dupca.com
abelprinters.com
bealhardware.com
tshirt.airforce
honorshirts.army
coastie.vet
columbuswebsite.net
columbusnovamb.com
parabellumdesigns.com
ftmorris.com
strategicwear.com
navalandair.com
strategywear.com
fit2command.com
centercalm.com
commandtees.com
calmcentered.com
fitforcommand.com
wartunic.com
spiritsofwar.com
fit4command.com
khabourismanuscript.com
fortmorris.us
ferpd.com
girardoniairrifle.com
girandonirifle.com

carlcuck.com
altryte.com
alternate-rt.com
alt-rite.com
alt-rights.com
alternateryte.com
alternate-right.com
honorshirts.us
cnmb.us

Interesting statement from Novartis....

https://www.marketwatch.com/story/drugmaker-novartis-plays-down-its-deal-with-trumps-lawyer-tying-it-to-its-former-ceo-2018-05-09?siteid=rss&rss=1


Novartis was contacted in November 2017 by lawyers from the special counsel’s office regarding the company’s agreement with Essential Consultants,” the Basel-based company said.

“Novartis cooperated fully with the special counsel’s office and provided all the information requested. Novartis considers this matter closed as to itself and is not aware of any outstanding questions regarding the agreement.”


Did anyone see Santorum on Stormy Daniels?


https://www.mediaite.com/uncategorized/cuomo-grills-santorum-over-evangelicals-excusing-trump-for-stormy-daniels-thats-hypocrisy/


Rick Santorum and Chris Cuomo had an intense conversation today over why President Donald Trump’s evangelical supporters so easily disregard the ongoing Stormy Daniels controversy.

There are a lot of good prosecutors in the State of New York


The law is the law, and is not as dependent on personalities as people seem to believe.

Winter is over, watcha bin upto?

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