..On Monday, Politico reported that Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia had agreed to allow Robert Mueller to use something called the crime-fraud exception to attorney-client privilege to compel testimony from an attorney who formerly represented Paul Manafort and Manafort’s onetime employee Rick Gates. Although that development got lost in the blizzard of Robert Mueller news, Howell’s willingness to pierce attorney-client privilege, as well as her frank description of falsehoods as falsehoods, was in some sense the big news of the day. It was an astonishing win for the special counsel, one that reveals both Mueller’s willingness to use tough tactics and the ways in which the judicial branch may be willing to treat the cover-ups that emerge from the Trump probe. In a way, the decision revealed that the courts may be as tired of houses built of deception as the rest of us are.
One of the triggering events
A short time later, Trump won the presidential election, an event that surprised many, including perhaps even Trump himself. Consequently, key figures in the Trump campaign began to receive a level of scrutiny they likely hadn’t anticipated. A short time after the election, Manafort and Gates responded to FARA’s request for an explanation of their activities. No doubt aware of their quandary—they should’ve registered but didn’t—Manafort and Gates sought legal help, and so it was their attorney who responded to FARA three times: on Nov. 23, 2016; Feb. 20, 2017; and June 27, 2017.
The problem here was that some of these letters made assertions that turned out to be, from the vantage of the special counsel’s office and then the judge, quite false. As Judge Howell characterized it, the “2017 FARA Submission attempts to paint the Targets as mere spectators in a game when they actually were integral players.” Judge Howell notes that the special counsel’s office wasn’t seeking confidential notes or discussions between counsel and her clients. Mueller and his team merely wanted to confirm facts she had passed along as having originated with Manafort and Gates. To put it another way, Mueller is asking the judge to get him answers to simple questions about whether Manafort and Gates lied to counsel and whether counsel in turn passed those lies along.
This is going to get interesting, as long as Mueller is allowed to operate that is.