On Monday’s episode of the CAFE Insider podcast, Preet Bharara and Anne Milgram will break down the latest politically charged legal matters making the headlines. Email your questions to letters@cafe.com and tune in to hear their discussion.
June 21st, 2019
DOJ intervenes to spare Paul Manafort from Rikers Island jail; the U.S. launches a cyber attack on Russia’s power grid; and former White House Communications Director Hope Hicks refuses to answer Trump-related questions during a House hearing. Let’s dive in!
DOJ spares Manafort from Rikers
In an unprecedented move, the Justice Department’s second-in-command, Deputy Attorney General Jeffrey Rosen, intervened to keep President Trump’s 2016 campaign manager, Paul Manafort, in federal custody. Manafort, who is currently serving a seven-and-a-half year sentence at Pennsylvania’s Federal Correctional Institution (FCI) Loretto, was expected to be transferred to the notorious Rikers Island jail as he awaits a trial on New York state charges. In a June 11 letter, Rosen asked Manhattan District Attorney Cyrus Vance to respond to arguments made by Manafort’s attorney, Todd Blanche, in support of Manafort remaining in federal custody. Blanche had argued in a May 17 letter to FCI Loretto Warden Vicky Moser, who has the authority to approve or reject a state’s request for temporary custody, that it would not be safe for his client to be housed at Rikers, adding that Manafort should not even be facing trial in New York due to the State’s double jeopardy laws.
In a June 14 letter to Rosen, Vance granted Blanche’s request, and attached a letter from Manhattan Assistant District Attorney Christopher Conroy to Warden Moser explaining that the District Attorney’s office would not object to the federal government’s arrangement. Conroy’s letter, however, describes Blanche’s proposed arrangement as “a departure from usual practice” and “inconsistent” with the provisions of the Interstate Agreement on Detainers, a federal law that governs inmate transfers. Conroy also addressed Blanche’s “gratuitous” double jeopardy claims, writing that “such arguments have no place in the routine procedural analysis” of an inmate’s transfer to another jurisdiction.
U.S. targets Russia’s power grid
The New York Times reported last weekend that the U.S. Cyber Command, an arm of the Defense Department, has taken a more aggressive approach toward Russia, placing “potentially crippling malware” inside the country’s power grid as both a warning and a weapon to be used if conflict breaks out. Experts have framed the action as a lawful countermeasure in response to years of Russian hackers attacking U.S. electric and nuclear power systems. Writing for Just Security, University of Exeter Law School Professor Michael Schmitt points out that although the “requirement of proportionality” would appear to be met given that Russia similarly targeted the U.S. in the past, the decision to implant harmful malware into another country’s critical infrastructure “is one that States must not take lightly.”
The legal authority to deploy the malware comes from the John S. McCain National Defense Authorization Act that Trump signed in August 2018. Under the law, “clandestine military activity” in cyberspace can be authorized by the Secretary of Defense and without the president’s approval. Administration officials told the Times that Trump was not briefed on the intrusion into Russia’s power grid, as they were reportedly worried that Trump could undermine the operation or inform foreign officials about the plan.
Trump was quick to decry the Times’ reporting, tweeting that the story was “not true” and that it was “a virtual act of Treason by a once great paper.” In a June 19 Wall Street Journal op-ed, Times publisher A.G. Sulzberger rejected Trump’s accusations of “treason,” explaining that the publication had reached out to the White House National Security Council, the National Security Agency and the U.S. Cyber Command to discuss national security concerns prior to printing. Sulzberger warned that Trump’s campaign against a free and independent press “crosses a dangerous line” and that it “should concern every patriotic American.”
The Rider
- Former acting secretary of defense, Patrick Shanahan, withdrew his nomination on Tuesday following problems with his FBI background check and the recent revelation of past domestic violence incidents. Secretary of the Army Mark Esper, a former Raytheon executive, will take Shanahan’s place as acting defense secretary.
- On Tuesday, White House Counsel Pat Cipollone sent a letter to House Judiciary Chairman Jerry Nadler (D-N.Y.) asserting that former White House Communications Director Hope Hicks is “absolutely immune” from being compelled to testify before Congress “with respect to matters occurring during her service as a senior adviser to the President.” During Hicks’ testimony on Wednesday, White House attorneys objected to all questions related to the White House. Chairman Nadler told reporters afterwards that he vowed to “destroy” the White House’s “so-called absolute immunity” position in court.
- The FBI is reportedly investigating Deutsche Bank’s compliance with anti-money laundering laws following whistleblower allegations that the company failed to act on flagged suspicious financial transactions involving Jared Kushner.
- The Supreme Court issued a 7-2 decision on Monday holding that federal and state governments can successively prosecute the same person for the same conduct without violating the Constitution’s double jeopardy clause. The ruling is a significant blow to Paul Manafort who continues to be exposed to New York state charges that echo those involved in his federal convictions.
- Former Trump associate Felix Sater is scheduled to testify before the House Intelligence Committee behind closed-doors today as part of an investigation into the proposed Trump Tower Moscow project. Sater was in charge of negotiating the real estate deal with Russian officials and businessmen, and is expected to testify about his confidential work as an undercover asset for the U.S. Defense Intelligence Agency on Russia matters.
Further reading
“Judge in census case: New evidence alleging political motivation behind citizenship question ‘raises a substantial issue’,” CNN, 6/19/2019
“A Foreigner Paid $200,000 for Tickets to Trump’s Inaugural. Now He Says He Was Duped.,” The New York Times, 6/18/2019
“Supreme Court Hands Democrats A Win On Racial Gerrymandering In Virginia,” NPR, 6/17/2019
“Dems investigating Trump have a new tactic to break his blockade,” Politico, 6/17/2019
“The Trump White House defense of Kellyanne Conway’s Hatch Act violations is fooling no one,” NBC, 6/14/2019
“Justice Dept. issues memo backing Mnuchin’s refusal to give Trump’s tax returns to Congress,” The Washington Post, 6/14/2019
Stay Informed,
Adrienne Cobb & the CAFE team
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