Blog Ipsa Loquitur

Nobody is reading and writing more thoughfully about the Special Counsel’s investigation than freelance national security journalist Marcy Wheeler. Over the weekend, she published an eyebrow-raising note on her continuing obsession with Paul Manafort’s iPods, which the FBI seized in August 2017. Really, her whole note is an exercise in details that make you go “huh, that’s odd,” so let’s just get into it.

First, the Special Counsel’s Office has asked the judge to schedule three weeks for the trial, up from two weeks. The first huh:

Remember that Mueller originally asked for 70 blank subpoenas (35 sets) to call witnesses for the trial. But after the trial got moved, they asked for 150 subpoenas (75 sets). Now we learn they would like 50% more time for the trial. This shouldn’t be a difficult case, given how much paperwork there is. I wonder why the scope of it has expanded. We know, however, that Mueller neither wants nor will be permitted to raise issues related to Trump.

So the scope of the trial keeps increasing, even though Mueller’s folks aren’t going to use the T-word at all. I’m with Wheeler here: tax evasion and money laundering are complicated but not exactly difficult to argue. Maybe the FBI keeps digging up new shell companies and new money laundering, and it’s going to be hard to argue twenty new charges in addition to the twenty-odd from the two Manafort indictments. Or maybe there’s been a lot of developments on the “Conspiracy to Defraud the United States” charge that undergirds the broader investigation into Russia’s 2016 election interference.

Which is where the second huh comes in:

Because of my continuing obsession with Manafort’s iPod habit, I’m also really interested in this passage in [Buzzfeed reporter Zoe] Tillman’s report: “On the home search issue, Manafort is arguing that the search warrant was too broad and that investigators had failed to explain at the outset why they reason to believe there would be evidence on various electronic media devices that they seized.”

As I’ve laid out, Manafort’s lawyers focused on his iPods from their first suppression motion, claiming, falsely, that the iPods might only be used for music: “For example, the search warrant inventory of electronic devices seized or imaged includes things such as an Apple iPod music device and some Apple iPod Touch music and video devices. No agent could have reasonably believed that he was seizing electronic devices used in the commission of the subject offenses.”

Now, I’m no fancy big-city lawyer, but even I know that iPods are great secure communications devices. They run all the same end-to-end encrypted applications as iPhones, but you can walk into a Wal-Mart and buy one with $300 cash instead of giving AT&T your billing address and driver’s license. You can use Signal, you can use WhatsApp, you could even use the iPod as a voice recorder for meetings, such as the June 9 Trump Tower meeting that Manafort attended.

And at the hearing Tillman’s reporting on (and Wheeler’s writing about), Manafort’s lawyers again argued about the seizure of the contents of those iPods. The judge has already decided the search of Manafort’s house (in which the iPods were seized) was proper. Manafort’s lawyers aren’t arguing with the judge because he might overrule himself; they’re arguing with the judge because they want an appeals court to decide the judge was wrong. That’s the long game.

And then there’s the last huh:

Rather than stating that “the government will not be introducing any evidence obtained from those devices at the trial in this case,” Manafort instead claims that “the Special Counsel stated that he would not seek to introduce evidence from the iPods seized from the residence.” Mueller’s team only said they wouldn’t be introducing evidence from the iPods “in this case,” not that they wouldn’t introduce evidence from them “in some future case.”

Wheeler correctly points out that Manafort is the only one who can raise the “improper search and seizure” defense against whatever evidence is on those iPods. Mueller’s team isn’t splitting hairs for no reason. Maybe there’s a recording of that meeting on that iPod, and maybe hypothetically incriminates one of the other attendees from the Trump campaign; it’s up to Manafort to suppress that evidence to protect that other attendee in that—hypothetical—future case.