Attorneys for Paul Manafort asked a federal judge to throw out evidence in his Washington criminal case Wednesday, arguing that the FBI searched his Alexandria, Virginia, condominium and storage unit last year unlawfully after entering the unit with the help of a low-level employee.
The hearing came as President Donald Trump’s former campaign chairman battles the office of special counsel Robert Mueller III to try to dismiss charges or suppress evidence in two federal court cases that grew out of the investigation into Russian interference in the 2016 presidential election.
Manafort, 69, has pleaded not guilty in both cases and faces trial in Washington in September and in Alexandria in July on felony counts including conspiracy, bank and tax fraud, money laundering and failing to register as a lobbyist for Ukrainian officials.
Before U.S. District Judge Amy Berman Jackson of the District, Manafort’s attorneys said Wednesday that the FBI conducted an “end run” around Manafort’s constitutional rights by having the employee consent to an FBI agent examining the contents of the storage unit, which the agent used to obtain a court-ordered search warrant executed the following day, May 27.
Thomas Zehnle said the employee was authorized only to open the unit at Manafort’s direction, a fact the FBI knew or should have established before entering, adding, “warrantless searches are not favored by courts in this country.”
“A hotel manager can’t simply open your room and say [to police or agents], ‘Have a look at whatever you want to look at,’ and leave,” Zehnle said. “I left a key with a pet-sitter . . . the pet-sitter has limited authority to feed the pet,” not to let in whomever he wants, whenever he wants, he said.
Prosecutor Scott A.C. Meisler said the employee of Steam Mountain, a Manafort-affiliated business, had a key to the steel storage room, was listed as an occupant on a lease for the unit and had moved items into it – circumstances that courts have found show an individual has assumed the risk an employee would let outsiders in.
Like a research assistant for a professor who can access a laboratory to check on experiments, Manafort’s employee was authorized “to perform work-related functions.”
“The combination of access – through the key, carrying out of job functions in the space, and the employee’s name being on the lease – does not require an agent to carry out any further inquiry,” Meisler said.
Jackson had ordered the FBI agent who swore out the affidavit for the storage unit warrant to be prepared to testify Wednesday, but the defense said at the hearing the testimony was no longer necessary after prosecutors in a filing showed the employee had given his written consent.
Jackson pressed both sides about Manafort’s claim that the FBI obtained overly broad “general” warrants to seize records at his home and storage unit with no meaningful limits on what could be searched.
The defense asked Jackson to turn over unredacted versions of the affidavits supporting each search request and to exclude the evidence they netted, including financial documents and various electronic records dating to at least 2006 from Manafort’s home, and records with no time restriction from the unit.
At a July 26 search of Manafort’s condo, Manafort’s attorneys wrote, agents seized or imaged every electronic and storage device, acting in part on U.S. Magistrate Judge Theresa Buchanan’s authorization to obtain evidence regarding his “state of mind.”
“The role of the warrant is to limit their discretion to determine what constitutes such evidence,” they wrote. “This warrant did no such thing.”
Prosecutors said the FBI agent acted properly. The agent, prosecutors said, did not open or take anything May 26 in the initial visit but, in asking for court approval for a search, described about 21 bankers boxes and a five-drawer metal filing cabinet that the agent said probably held Manafort’s financial records, including a box labeled “Ukraine binders.”
Before the special counsel appointment, federal investigators already had been examining Manafort’s work before 2014 on behalf of Ukraine’s pro-Russian president at the time, Viktor Yanukovych, and his allies.
Prosecutors said even without a visual description of the unit’s interior, the agent’s affidavit established ample probable cause for a search at both sites around Manafort’s financial dealings, specifying categories of records sought and identifying the specific laws he was suspected of violating.
If the initial visit were somehow improper, the agent disclosed his actions to a magistrate, prosecutors said, invoking a “good-faith” exception that courts have used to let in evidence.
Jackson observed that similar motions by Manafort to toss out evidence before her and U.S. District Judge T.S. Ellis III of Alexandria might yield divergent rulings, an outcome that Meisler said prosecutors were still assessing.
Jackson last week rejected Manafort’s motion to dismiss his indictment in the District that alleges federal lobbying registration violations; a similar motion to dismiss Manafort’s broader Virginia case on grounds it is outside the scope of the special counsel is pending.
