Special counsel Robert Mueller’s team wants to review emails between Paul Manafort and one of his former lawyers — messages that would typically be protected by attorney-client privilege.
Manafort’s emails are a special case, Mueller’s team argued in a court motion Wednesday. Attorney-client privilege doesn’t apply when the client enlists a lawyer’s help to commit a crime — and that’s what Mueller’s team is arguing that Manafort did.
The special counsel asked the court’s permission to review “four documents.” It’s not clear what those messages contain. The sections of the motion that appear to describe them are redacted.
Manafort, the former campaign chief for President Donald Trump, has been charged with failing to register as a foreign agent and is set to stand trial next month in Washington. He was convicted earlier this month on eight charges of tax evasion and bank fraud in a separate trial in Alexandria, Virginia.
The question of how attorney-client privilege applies to a lawyer who advised Manafort and his former deputy, Rick Gates, around their foreign lobbying work on behalf of former Ukrainian president Viktor Yanukovych has dogged the Washington case for nearly a year.
A federal judge ruled last year that the lawyer, who had responded to inquiries from the Justice Department about why Manafort and Gates hadn’t registered as foreign agents, could be forced to testify in Manafort’s trial. Attorney-client privilege didn’t apply to Manafort’s discussions with the lawyer, U.S. District Court Judge Beryl Howell wrote, because Mueller’s team had demonstrated that Manafort “likely violated federal law” by failing to register.
“In essence, the law refuses to recognize that there was even a legitimate attorney-client relationship because clients may not use legal help to commit crimes or frauds,” Stephen Gillers, a law professor at New York University, wrote in an email to POLITICO.
Manafort’s lawyer isn’t named in court documents. Prosecutors have, however, named Melissa Laurenza of Akin Gump Strauss Hauer & Feld as a potential witness.
Laurenza didn’t respond to a request for comment. A spokesman for Manafort also declined to comment.
Mueller’s team is now asking the court to let them read the four emails in addition to requiring the attorney to testify.
Mueller’s team has charged Manafort and Gates with making false statements to the Justice Department about their foreign lobbying work on Nov. 23, 2016 and Feb. 10, 2017. Manafort and Gates retroactively registered as foreign agents in June 2017, years after completing the work that they reported.
Mueller’s team obtained a warrant for Manafort’s emails last year and turned them over to a “taint team” of lawyers to weed out privileged messages, according to the motion.
It’s up to a client to assert attorney-client privilege, and Mueller’s prosecutors wrote in the motion that the taint team had asked Manafort whether he wanted to do so.
“Counsel for Mr. Manafort did not respond to the Taint Team’s inquiry, but later claimed to be asserting privilege over all communications between Mr. Manafort” and his attorney, Mueller’s team wrote.
In addition to arguing that attorney-client privilege doesn’t apply to the documents in question because Manafort committed a crime, Mueller’s team is also arguing that it should be waived because Manafort was consulting the attorney about a filing that he was making to the government, rather than about a confidential matter.
“In such cases, both the information that the client expected the lawyer to reveal and ‘the details underlying’ it are subject to disclosure,” Mueller’s team wrote in the motion.