1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2 3 4 5 6 7 8 9 United States of America, ) Criminal Action ) No. 17-CR-201 Plaintiff, ) ) PUBLIC VERSION vs. ) Sealed Hearing ) Paul Manafort, Jr., ) Washington, DC ) Date: February 13, 2019 Defendant. ) Time: 1:30 p.m. ) ___________________________________________________________ 11 TRANSCRIPT OF SEALED HEARING HELD BEFORE THE HONORABLE JUDGE AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE ____________________________________________________________ 12 A P P E A R A N C E S 10 13 For Plaintiff: ANDREW WEISSMANN GREG D. ANDRES JEANNIE SCLAFANI RHEE U.S. Department of Justice Special Counsel's office 950 Pennsylvania Avenue NW Washington, D.C. 20530 For Defendant: KEVIN M. DOWNING 815 Connecticut Avenue, N.W. Suite 730 Washington, D.C. 20006 (202) 754-1992 E-mail: Kevindowning@kdowninglaw.com 14 15 16 17 18 19 20 21 22 23 24 25 RICHARD WILLIAM WESTLING Epstein Becker & Green, P.C. 1227 25th Street, NW Suite 700 Washington, DC 20037 (202) 861-1868 e-mail: Rwestling@ebglaw.com 2 1 Also Present: Michael Ficht Renee Michael Jeff Weiland Court Reporter: Janice E. Dickman, RMR, CRR Official Court Reporter United States Courthouse, Room 6523 333 Constitution Avenue, NW Washington, DC 20001 202-354-3267 2 3 4 5 6 * 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * * 3 1 THE COURTROOM DEPUTY: Good afternoon Your Honor, 2 this afternoon we have case No. 17-201-1, the United States of 3 America v. Paul J. Manafort, Jr. 4 the courtroom, Your Honor. 5 6 Mr. Manafort is present in Will counsel for the parties please approach the lectern, identify yourself for the record. 7 MR. WEISSMANN: For the government, Andrew Weissmann, 8 Jeannie Rhee, Jeff Weiland, Renee Michael, Mike Ficht, and Greg 9 Andres. 10 THE COURT: Good afternoon. 11 MR. WESTLING: Good afternoon, Your Honor. Richard 12 Westling and Kevin Downing on behalf of Mr. Manafort, along 13 with Tim Wang, who's working as our paralegal. 14 THE COURT: This is a sealed hearing. It's a 15 continuation of the hearing we began on February 4th. 16 this hearing I'm planning to announce my findings based on the 17 record. This transcript, once it's complete, will be my 18 ruling. I'm not going to issue a written opinion, particularly 19 not after I read all of this out loud. 20 And at There will be -- I think it will be appropriate to do 21 a public minute order shortly after the hearing that 22 encapsulates my findings in a way that's consistent with what's 23 already been made public in this case. 24 procedure to do what we did last time and to release as much as 25 possible of this transcript. And then we'll set up a 4 1 I note there's also an ongoing dispute concerning one 2 set of redactions in the transcript of the breach hearing and 3 I'm going to take that up at the end of this proceeding, after 4 I've ruled on the breach allegations. 5 both sides for how quickly you got through that exercise and 6 how much was agreed. 7 disagreement is bad faith on the part of anyone. I think it's 8 legitimate disagreement and we'll talk about it. But I thought 9 the fact that almost all this could be accomplished through 10 I really want to commend I don't think there's any -- the current agreement of the parties was very commendable. 11 The plea agreement in this case, docket 422, provides 12 in paragraph 8: 13 completely, and forthrightly with the government. 14 defendant agreed, in paragraph 8(a), to be debriefed; in 15 paragraph 8(c) to testify at any proceedings, and in 8(f) that 16 he, quote, must at all times give complete, truthful, and 17 accurate information and testimony, and must not commit, or 18 attempt to commit, any further crimes, close quote. 19 Your client shall cooperate fully, truthfully, The Paragraph 8 goes on to say that the defendant, quote, 20 shall testify fully, completely and truthfully before any and 21 all grand juries in D.C. or elsewhere. 22 Paragraph 13, the breach of agreement paragraph 23 provides: Your client understands and agrees that, if after 24 entering this agreement, he fails specifically to perform or to 25 fulfil completely each and every one of his obligations under 5 1 this agreement, or engages in any criminal activity prior to 2 sentencing or during his cooperation, he will have breached 3 this agreement. 4 Should it be judged by the government, in its sole 5 discretion, that the defendant has failed to cooperate fully, 6 intentionally, gave false or misleading testimony -- 7 intentionally gave false or misleading testimony, has committed 8 or attempted to commit further crimes, or violated any other 9 provision of this agreement, he would not be released from his 10 guilty plea, but the government would be released from its 11 obligation under the agreement, including its promise not to 12 oppose the downward adjustment to the sentencing guidelines 13 calculations for acceptance of responsibility. 14 goes on to say your client understands that the government 15 shall be required to prove a breach of this agreement only by 16 good faith. 17 The paragraph The defendant accepted the agreement. His signed 18 acceptance, on the last page, says, quote, I have read every 19 page of this agreement, close quote. 20 initialed each page, signifying that to me. 21 also states I've discussed this with my attorneys. 22 understand the agreement and I agree to it without reservation. 23 I do this voluntarily and of my own free will, intending to be 24 legally bound. 25 date for a period of cooperation and debriefings. Also, he signed and The acceptance I fully We then deferred the selection of a sentencing 6 1 The parties informed me, in a joint status report on 2 November 26th, 2018, docket 455, that it was the Office of 3 Special Counsel's position the defendant had breached the plea 4 agreement by making false statements to the FBI and the Office 5 of Special Counsel, and that it was time to set a sentencing 6 date. 7 The defendant disputed the government's 8 characterization of the information he had provided and denied 9 that he had breached the agreement, but had agreed that, given 10 the dispute, it was time to proceed to sentencing. 11 I held a status hearing and ordered the government to 12 provide me with information concerning the alleged breach. On 13 December 7th, 2018, the government filed its sealed submission 14 in support of its breach determination, docket 461. 15 8th, 2019 the defendant filed his response to the special 16 counsel's submission in support of the breach determination. 17 That was docket 472, the public version, and 473 was the sealed 18 version. On January 19 The government was then ordered to identify the 20 particular false statements and produce the evidence that 21 supported its determination that they were false. 22 January 15th, 2019 it filed the FBI declaration in support of 23 the government's breach determination. 24 was the redacted version; 477, sealed, with a set of 25 accompanying exhibits. And on That was docket 476, And the defendant responded in docket 7 1 480 on January 23rd, 2019. 2 As everyone agrees, it is the government's burden to 3 show there's been a breach, but to be relieved of its 4 obligations under the agreement it must simply show that its 5 determination was made in good faith. 6 In its January 8th response to the breach 7 allegations, the defense said that, quote, given the highly 8 deferential standard that applies to the government's 9 determination, it was not challenging the assertion that the 10 determination was made in good faith. 11 page 2. 12 That was in docket 472, More important, in response to my question at the 13 status hearing we held on January 25th of this year, the 14 defendant conceded that the determination was in fact made in 15 good faith. 16 In light of the defendant's concession, and based 17 upon my independent review of the entire record, including the 18 pleadings I just listed and the supporting exhibits, the facts 19 and arguments placed on the record at the hearing on February 20 4th, 2019 and the post-hearing submissions filed by the 21 defendant, docket 502, and the government, docket 504, I find 22 that the Office of Special Counsel made its determination that 23 the defendant made false statements and thereby breached the 24 plea agreement in good faith. 25 Special Counsel is no longer bound by its obligations under the And, therefore, the Office of 8 1 plea agreement, including its promise to support a reduction of 2 the offense level in the guideline calculation for acceptance 3 of responsibility. 4 But that is not the only question before me today. 5 The second issue is whether the statements made to the FBI, the 6 Office of Special Counsel or the grand jury that were 7 identified by the Office of Special Counsel as the basis for 8 its breach determination were in fact intentionally false. 9 Whether this defendant lied to the FBI or the grand jury bears 10 on the applicability of certain guideline adjustments, such as 11 acceptance of responsibility. 12 status hearing, it also bears more generally on my 13 consideration of the statutory sentencing factors, decisions 14 I'm going to have to make about consecutive and concurrent 15 sentences, etcetera. 16 And as I noted at the last But, in case there's any confusion on this point, no 17 matter what I decide, I cannot sentence him to more than the 18 statutory maximum for these offenses. 19 that I'm not ruling today on the applicability of the 20 adjustment for acceptance of responsibility or any other 21 guideline provision. 22 I want to underscore At the time of the plea, the defendant swore to me 23 that he was in fact guilty of offenses set forth in the 24 information, as well as those charged in the Eastern District 25 of Virginia. And whether the defendant should get credit at 9 1 sentencing for his acceptance of responsibility for the 2 offenses in the indictment that was pending before me, or those 3 in the Eastern District of Virginia, which isn't my decision at 4 all, will involve consideration of other facts, in addition to 5 the narrow question of whether he lied about these five 6 specific topics. 7 I expect that the presentence report and the parties 8 in their sentencing memorandum will address the totality of the 9 circumstances, including the impact of today's findings on that 10 decision. 11 decision that I'm going to announce today will advise you as to 12 whether I find that the Office of Special Counsel has 13 established by a preponderance of the evidence that the 14 defendant made intentional false statements with respect to any 15 of the matters. 16 responsibility for another day. 17 But as both the parties agreed that it should, the And we're going to leave acceptance of I want to make a couple general observations at the 18 outset. It is true that the Office of Special Counsel bears 19 the burden of proof by a preponderance of the evidence, and I 20 will make all of my findings applying that standard. 21 want to note that if the defense wanted me to reject inferences 22 to be drawn from the facts put forward, I can't do it based on 23 conclusory statements about how hard it is generally for a 24 witness to remember. 25 can be hard to answer questions on a broad range of topics when But I do I do take the defendant's point that it 10 1 questioners have the documents in front of them and you don't. 2 But I'm not sure how that bears on anything in particular. 3 I note generally that the allegations that 4 Mr. Manafort lied are not based on times when he said, "I don't 5 remember," which is something a person even under the pressure 6 of a debriefing session could say when they don't remember. 7 And none of the ones I'm concerned about are even based on 8 general denials which later proved to be untrue or they 9 corrected relatively promptly. My concern isn't with 10 non-answers or simply denials, but times he affirmatively 11 advanced a detailed alternative story that was inconsistent 12 with the facts. 13 I also found the defendant's statements in his 14 submission concerning his health to be particularly conclusory. 15 In his response to the allegations, the defendant specifically 16 asked me to consider the defendant's health issues exacerbated 17 by the conditions of confinement, quote, in particular, 18 solitary confinement, close quote, as a reason why I should 19 find that the inaccuracies were not intentional. 20 submission did not include any chronology, any medical or 21 mental health information, any information about the details of 22 his custodial situation, or any information concerning the 23 state of his health on any of the dates in question. 24 25 But the In short, it gave me no basis upon which I could find that it would be a mitigating factor. So I gave the defense an 11 1 opportunity to elaborate at the hearing. 2 questions at it that point it all evaporated and counsel had 3 little or nothing to say, other than, It's been shown, One sees 4 an impact, and there really wasn't any specificity there. 5 it left the impression that the issue was left in the pleading 6 for public consumption, but not mine. 7 And when I asked And This isn't the first time that the defense made a 8 strong public declaration about his conditions of confinement. 9 I think it may be useful to review how he got to the Alexandria 10 11 city jail, where he is now. I revoked his bond on June 15th based on a finding 12 that there was probable cause to believe that he had attempted 13 to obstruct justice and interfere with witnesses. 14 Circuit upheld that ruling. 15 to doing just that under oath when he pled guilty. 16 unquestionably, lawfully detained. 17 order at the time that the defendant must be afforded a 18 reasonable opportunity for private consultation with counsel. 19 The D.C. And he has specifically admitted So he was, And I noticed in a minute It was the U.S. marshal and not the Court who then 20 made the decision regarding his placement. He was awaiting 21 trial at the Eastern District of Virginia at that time and the 22 marshal there selected Northern Neck Regional jail. 23 have been one of the options for our marshal as well, the other 24 would have been D.C. jail; it wouldn't have been up to the 25 defendant or to me, but I'm not sure the defendant would have It would 12 1 found that to be preferable. 2 Northern Neck, though, in my view, presented real 3 concerns about his ability to confer with counsel for the two 4 upcoming trials. 5 for action, the defendant presented it to the Court in the 6 Eastern District of Virginia in early July. 7 given the distance from the District, restrictions on his 8 electronic and phone communications, there was a severe impact 9 on his ability to prepare for trial and review documents, But before anyone presented that issue to me 10 etcetera. 11 the Eastern District. 12 He complained that And that was docket 110 in 18 criminal docket 83 in He also attached a brief from July 5th in which he 13 told the D.C. Circuit that he was in solitary confinement, 14 locked in his cell 23 hours a day. 15 District of Virginia made the decision to promptly alleviate 16 those concerns by ordering, and not just recommending, that he 17 be housed in the Alexandria jail. 18 immediately turned around and said, Oh, never mind, we 19 respectfully ask the Court to permit him to remain at Northern 20 Neck Regional jail. 21 The Court in the Eastern The defendant then It became clear why in the government's pleading, 22 docket 117. There he was housed by himself, it's true, but 23 housed within a private, self-contained living unit, including 24 his own bathroom, shower, phone, laptop, and access to a 25 separate work room for review of trial materials. And in his 13 1 reply, docket 125, the defense conceded that the government had 2 not misrepresented the conditions, other than there was a 3 dispute about whether he could or couldn't send emails. 4 I'm not going to split hairs over whether that did or 5 didn't technically qualify as solitary confinement, and I'm not 6 placing any reliance on what the warden tended to call it, but 7 the facts about what it was are not in dispute. 8 all leaves the distinct impression that some disingenuousness 9 on the part of the defense played a role in how he got to And so that 10 Alexandria. 11 Virginia did not reverse the decision it had just made and the 12 transfer was effectuated. 13 was concerned about his ability to meet with counsel with the 14 two cases coming up, and with his family's ability to visit 15 him. 16 Indeed, the Court in the Eastern District of And that made sense to me because I But in any event, he's been there since July 10th. 17 In those six-plus months he has not filed a single motion 18 seeking any sort of relief whatsoever, here or in the Eastern 19 District of Virginia. 20 lodged concerning his access to or the quality of his medical 21 care. 22 classification or the conditions of his confinement. 23 There have been no formal complaints No information has been provided to me concerning his Of course, those decisions fall within the purview of 24 the warden. But to date, as far as I know, no habeas petition 25 has been filed in the appropriate jurisdiction. So there's 14 1 nothing in the record about what's happening there now. 2 more important, I didn't see any evidence that indicated I 3 should take it into account. 4 And I don't mean to be unduly harsh, I don't mean to 5 minimize the burden he is under. I accept the defendant's 6 representations concerning the considerable emotional strain 7 imposed by all of it. 8 realization that he would be sentenced and there would be no 9 trial, the stress and unpleasantness of repeated debriefings The combination of incarceration, the 10 and cooperation are difficult to bear up under any 11 circumstances. 12 I also do not question the defendant's representation 13 that he's been diagnosed with gout or that he's experienced 14 flare-ups which have worsened during his incarceration. 15 you didn't provide any dates or records associated with the 16 onset of the symptoms or information about the impact of the 17 medical condition on his cognitive or emotional condition. 18 But So there's no evidence in the record of the 19 connection between his confinement and the exacerbation of his 20 symptoms. 21 gave it a chance, they just said, Well, it's likely that 22 there's a connection. 23 chronology that is known doesn't give me anything to work with 24 and isn't entirely consistent with this argument. 25 And when I asked the defense to substantiate it and And the other problem is that the Mr. Manafort pled guilty here on Friday, September 15 1 14th. 2 his ability to walk was not impaired. 3 without difficulty, made no request for assistance during the 4 plea colloquy concerning his mental state. 5 he was not taking any medication that could affect his ability 6 to understand. 7 gout at that time, but as of that date, September 14th, he 8 hadn't demonstrated or, at least, expressed any concerns 9 regarding physical or mental impairment. 10 At that time, fortunately, he had no health complaints, He stood at the lectern He indicated that I'm not saying he wasn't already diagnosed with Well, why is that important? It's important because 11 three of the debriefings, September 11th, September 12th and 12 September 13th, had already taken place. 13 quite soon thereafter, beginning the following week, on the 14 20th, the 21st, and then the 25th, 26th, and 27th, and the 15 following week October 1st and 5th. 16 October 11th and 16th. 17 his appearance in the Eastern District of Virginia, in the 18 wheelchair, on October 19th when he complained publicly, as far 19 as I know for the first time, that his health was being 20 compromised by the conditions of his confinement. 21 The next five were He was debriefed again on So every single debriefing was before The parties have informed me that he was still having 22 difficulty walking and required the wheelchair for the two 23 sessions before the grand jury, on October 26th and November 24 2nd, so that's a matter of record. 25 4, doesn't reflect any sort of mental impairment. But the transcript, Exhibit He was 16 1 specifically asked if the medication for the inflammation 2 affected his mental state or his ability to understand, and 3 said no. 4 concerns about his cognitive ability or emotional state during 5 the questioning and, more important, none were brought to its 6 attention. The Office of Special Counsel did not develop any 7 So I've taken all the defense arguments into 8 consideration, but there is little in the record that would 9 explain, excuse or justify the statements of concern, 10 particularly given when they were made. 11 12 13 So now I want to turn to each of the five areas of testimony. The first is the payment by Firm A, towards the 14 debt incurred by the defendant with an unrelated law firm. 15 defendant says it's not fair to characterize his initial 16 responses as false, given the confusion surrounding the 17 original transaction and confusion in the questioning. 18 it's unremarkable that he wouldn't have immediate recollection 19 of the details. 20 confusion and the defendant didn't profess to be confused. 21 does appear, though, to be making a concerted effort to avoid 22 saying what really took place. 23 The He says But the record doesn't seem to reflect the He Exhibit 9 is the FBI 302 of the interview on 24 September 20th. During that interview the defendant asserted 25 that the money paid to the law firm to which he owed a debt was 17 1 repayment by 2 head of Entity B, the of a loan Mr. Manafort had made to 3 and that Manafort simply had 4 firm. , pay on his behalf to the law 5 So the initial answer cut 6 out of the picture entirely. and its head, But later that same 7 interview he did agree, when confronted with that fact, that it 8 had been 9 had. that made the payment to the law firm that it So, on October 1st, Exhibit 3, the FBI 302 of that 10 interview reflects that Mr. Manafort said, Well, 11 it because he had given him a lot of work in the past. 12 On October 16th he's interviewed again. paid And Exhibit 13 10, the FBI 302, reports that he said, for the first time, 14 Well, I asked 15 a loan. 16 note, but it was unsigned. 17 he said originally they planned for the payment to be a loan. 18 Last year, they executed a note, his accountant has to pay the law firm on my behalf as And he, thereafter, produced a copy of a promissory Page 3 of Exhibit 10 reports that 19 it. He said he dealt with the accountant through the New York 20 lawyer, 21 him that he had signed a loan agreement, and that it was just a 22 friend helping a friend. 23 paragraph 11 of the FBI declaration, the defense produced an 24 unsigned loan agreement. 25 5 percent, to be repaid in tree installments in 2018; March, and that , quote, reminded About a week later, according to It describes the loan as at 18 1 June, and September. 2 been repaid by the time of the October interview. 3 4 In other words, all of them would have Then he testified in the grand jury on October 26th, Exhibit 4 is the grand jury testimony. 5 , quote, offered to do it and it was income to him 6 because 7 Manafort had sent his way. did it in recognition of the business 8 9 10 During the same grand jury session he also said they did a loan agreement and he stated that he made a payment on the loan. 11 12 That time he said Finally, in the same grand jury session, he testified that went to 13 owed 14 and asked to do it because money. So those are all the different ways he's 15 characterized this. 16 12 is a series of texts dated June 26, 2017 from Manafort to 17 -- not What does the paper trail reveal? -- in which Manafort gives Exhibit all of the 18 necessary banking information to transfer funds to the law 19 firm. 20 Exhibit 2 is a bank wire transfer showing the payment 21 made by 22 2017. 23 24th, 2017, remaining him, I paid the firm on your behalf and 24 the tax documents are going to be forthcoming. 25 's company, Exhibit 14, , to the law firm on June 26th, e-mails Manafort on September Manafort then forwards the email directly to his 19 1 accountant himself, telling the accountant that the $125,000 is 2 income and a 1099 is on its way. 3 it directly to the law firm, which has several misstatements 4 even in just that one sentence. 5 and he makes no reference to repayments. 6 He says, I had the vendor pay He says nothing about a loan Exhibit 16, in the FBI 302 of the interview with the 7 accountant, Mr. , he said he treated it as income in 8 the 2017 tax return in accordance with Manafort's instructions 9 and he never received a 1099. 10 11 12 13 14 15 16 17 18 . So there's no actual evidence on 19 that point and I can't make any findings about why Manafort 20 might have wanted to obscure the details of this transaction. 21 At the hearing the defendant said to me, Yes, but 22 look at the 302. He acknowledged that he saw the 23 promissory note. 24 that the loan documents were generated at the time of the 25 transaction. The plain implication of that argument was 20 1 Well, not quite. 2 3 4 5 6 7 8 Indeed, the unsigned promissory 9 note itself is dated September 14th, 2017, three months after 10 the payment was made. 11 Four days after the grand jury testimony in Exhibit 12 17 Manafort's lawyer 13 document for the first time. 14 defense said, at the hearing, Well, that's not remarkable, the 15 preparation of the 2017 tax return was still underway. 16 accountant said no. 17 Mr. sends the accountant the loan It's October 30th, 2018. The But the said the tax return designating the 18 payment as income had already been prepared and sent to 19 Manafort for his approval and was approved without changes on 20 that point a month before 21 loan document. 22 an email from 23 to know how you handled -- past tense -- the $125,000 note from 24 25 sent him the email with the And that's consistent with Exhibit 17, which is to saying, Mr. Manafort wants . responded that he wasn't aware of any note 21 1 from that name. 2 125,000 from him last year. 3 but attached is the draft, which I think was signed without 4 change. 5 payments were in fact made that year and that Manafort was 6 current on them. 7 Manafort repaid the amounts on the dates due or any other 8 dates. 9 then said, Well, Paul borrowed I don't have the signed version, And then he goes on to represent that interest But there is zero evidence in the record that Now, I was concerned before the hearing that the loan 10 document was a complete concoction to support the latest 11 version of the evolving story. 12 by the defendant in docket 502-1, Exhibit A to defendant's 13 post-hearing submission, reflects that 14 emailed draft of the promissory note to Mr. Manafort on 15 September 14th, 2017. 16 the unsigned document that was sent to the accountant in 2018. 17 And that's not disputed by the Office of Special Counsel. 18 However, the metadata provided created an And that's consistent with the date on So I'm not basing any finding today on any 19 determination that the defendant had the lawyer gin up a 20 fraudulent piece of evidence a year later. 21 remains, there's no evidence that there was ever a signed 22 version of a promissory agreement, and even in September of 23 2017 it was nothing but a post hoc effort to make the completed 24 payment, described by Manafort as income in June, look like 25 something different than it had been three months before. But the fact 22 1 Indeed, 2 3 We don't know why 4 made that request, but it does appear that in September of 2017 5 Manafort was engaged in an effort to re-characterize the nature 6 of the payment. 7 to the Office of Special Counsel and the FBI on October 16, and 8 grand jury testimony to the effect that there was a loan 9 agreement in place, especially with the added gloss that he was 10 11 But that never went anywhere, so the statement making payments under it, is false. In the end, what we have is a series of contradictory 12 and misleading answers to the same questions, that are 13 inconsistent with the contemporaneous records. 14 Exhibit 12, the transmission of the banking information to 15 and Exhibit 14, Manafort's own email to his accountant, and 16 with the accounts of other witnesses. 17 transaction for the first time on September 20, and then it was 18 the third time it was discussed, about a month later, on 19 October 16, when he first advanced the theory that it was a 20 loan, and then the story continued to evolve in the grand jury 21 on October 26th. In particular, , He was asked about the 22 He had plenty of time to think, so the, I-can't-be- 23 expected-to-remember-everything-off-the-top-of-my-head excuse 24 doesn't work here. 25 detail, he advanced a series of new false narratives, including And it wasn't just a denial or an omitted 23 1 trying to get the accountant involved, and that can't be 2 explained by the suggestion that he was confused or 3 misremembering. 4 So I find this was a matter about which he provided 5 intentionally false information to the Office of Special 6 Counsel, the FBI, and the grand jury. 7 deciding whether I have to make this finding or not, that the 8 record supports a finding that the Office of Special Counsel's 9 interest in tracings the flow of funds to Manafort, I also note, without 10 particularly from and vendors associated with the 11 campaign, was material to its investigation. 12 With regard to that issue, I'm applying the law of 13 this circuit as set forth in United States versus Moore, 612 14 F.3d 698, on page 701, in the D.C. Circuit from 2010. 15 case the Court said Section 1001 does not define "materially 16 false." 17 false if it has, quote, a natural tendency to influence, or is 18 capable of influencing, the decision of the decisionmaking body 19 to which it is addressed, close quote. 20 United States versus Gaudin, G-A-U-D-I-N, 515 U.S. 506. 21 In that The Supreme Court has said a statement is materially The Court went on to say: Moore there was quoting Many of our sister 22 circuits have adopted a somewhat broader approach to 23 determining materiality, asking not only whether a statement 24 might influence a discrete decision, but also whether a 25 statement might affect in any way the functioning of the 24 1 government agency to which it was addressed. 2 of other circuit opinions by example. 3 United States versus Lichenstein, 610 F.2d 1272, which it 4 encapsulates the holding as, A false statement must simply have 5 the capacity to impair or pervert the functioning of a 6 government agency. 7 It cites a series Two, in particular, are The Court also cites United States versus White, 270 8 F.3d 356, out of the Sixth Circuit. 9 the D.C. Circuit said: And in that parenthetical Materiality is a fairly low bar. The 10 government must present at least some evidence showing how the 11 false statement in question was capable of influencing federal 12 functioning, close quote. 13 the Sixth Circuit. 14 So that is how the Circuit quoted And the Court then went on to say: In determining 15 whether a false statement is material, this Court -- the D.C. 16 Circuit -- has consistently asked whether the statement has a 17 tendency to influence a discrete decision of the body to which 18 it was addressed. 19 have, however, suggested a lie distorting an investigation 20 already in progress also would run afoul of Section 1001. 21 now join the other circuits in holding a statement is material 22 if it has a natural tendency to influence, or is capable of 23 influencing, either a discrete decision or any other function 24 of the agency to which it is addressed. 25 Then there's several cites. It said: We We So it is this precedent from Moore that provides the 25 1 definition of materiality that underlies my findings. 2 I also note that the D.C. Circuit said, in United 3 States versus Winestock, 231 F.2d 699, the issue to which the 4 false statement is material need not be the main issue, it may 5 be a collateral issue, and it need not bear directly on the 6 issue, but may merely augment or diminish the evidence upon 7 some point. 8 9 All right. So those are my findings with respect to issue No. 1. 10 Issue No. 2 was Kilimnik's role in the obstruction 11 conspiracy. 12 Kilimnik's joint attempt to get witnesses to the FARA charges 13 against Manafort to say that the advocacy he called upon them 14 to do on behalf of former Ukrainian President Yanukovych and 15 his party was not supposed to be performed in the United 16 States. 17 This issue has to do with Manafort's and Exhibit 10 is the FBI 302 from October 16, 2018. It 18 includes a detailed description of Mr. Kilimnik's state of mind 19 and denies that he was attempting to influence witnesses to 20 give false testimony at trial. 21 The defendant's first explanation about this in its 22 initial response to the breach allegations was: Well, he was 23 just saying he couldn't speak to Kilimnik's state of mind. 24 That actually wasn't a very fair characterization because he 25 affirmatively stated what it was. At the hearing, defendant's 26 1 second explanation was that I should look at this in the 2 context of the previous paragraph in the 302, where 3 Mr. Manafort had just said that he had talked to Kilimnik after 4 the superseding indictment came down and he reports what 5 Kilimnik thought and felt at that time. 6 that as in that paragraph and the next paragraph, he was just 7 transmitting what Kilimnik had said to him. 8 9 And the defense said I think it's also fair to say that advancing that version was not just relaying what Kilimnik had said, it 10 appears to be an attempt to exonerate him. 11 problematic that after he huddled with counsel and returned, to 12 agree that, yes, Kilimnik had conspired with him, as had been 13 admitted in the plea agreement. 14 said anything else in the same debriefing session. 15 the declaration in paragraph 17. 16 And it's odd and He denied that he had ever That's in It's also a bit of a stretch because Mr. Manafort 17 doesn't just say to the agents, Kilimnik doesn't believe he was 18 pressuring the witness, or Kilimnik didn't think he was 19 suborning perjury, he didn't intend to violate U.S. law, he 20 makes the affirmative assertion that Kilimnik believed the 21 project was a European project, when Manafort plainly knew that 22 Kilimnik knew it wasn't and the documents plainly reflect that 23 it wasn't, and that was the basis for the conspiracy count to 24 which he pled guilty in the first place. 25 To me, this is definitely an example of a situation 27 1 in which the Office of Special Counsel legitimately concluded 2 he's lying to minimize things here, he's not being forthcoming, 3 this isn't what cooperation is supposed to be. 4 problematic attempt to shield his Russian conspirator from 5 liability and it gives rise to legitimate questions about where 6 his loyalties lie. 7 This is a So it bears upon my finding that the Office of 8 Special Counsel was fully justified in its determination and 9 acted in good faith when it found that he didn't live up to his 10 obligations under the plea agreement. 11 But even with the relatively low standard of proof by 12 a preponderance, making a finding of an intentional false 13 statement is challenging in the absence of a transcript or even 14 notes that memorialize the particular question he had asked ask 15 and what he was answering, as opposed to a 302 with the answers 16 only. 17 While I find the defense theory to be strained and 18 I'm not really sure I buy it, the language of the 302 can be 19 read to support the defendant's alternative explanation. 20 that, and given his correction of the record within the same 21 interview, I'm not comfortable that I can go on to find that 22 this particular example rises to the level of an intentional 23 falsehood, a lie to the FBI that would constitute the 24 commission of an independent crime while awaiting sentencing in 25 two cases. Given So I am not finding that he intentionally lied with 28 1 respect to that matter. 2 The third matter is his interactions with 3 Mr. Kilimnik. 4 concerning what's been referred to as 5 the prior incidents, there was much that was re-explained and 6 corrected the number of times this came up. 7 The first one that came up was discussions As with The most problematic to me is described in paragraph 8 29 in the declaration, and Exhibit 101, the FBI 302 from 9 September 21st, on page 4, where he doesn't just say I don't 10 remember discussing 11 August 2016 and proved to be wrong about it. 12 he put the kibosh on the idea. He called it a bad idea. 13 said he didn't and he didn't want to 14 15 with Mr. Kilimnik after He asserted that He and then he gave the FBI a series of specific reasons that he ended the discussion for good at that time. 16 This is not supported by any evidence, even his 17 argument that he was telling the truth because what he told the 18 FBI he said at the time was: I was opposed to 19 20 , is contrary to the subsequent emails trying to elicit the reaction to 21 . Creating an alternative 22 narrative is not the same thing as simply denying or professing 23 not to remember that something happened, and it's not 24 consistent with the defense argument that he just didn't 25 remember. 29 1 2 So I find that the September 21st claim that he laid the issue to rest by telling Kilimnik 3 4 was an intentional material false statement. 5 Moreover, there are other misleading, inaccurate 6 statements that reinforce the conclusion that he was lying 7 about his dealings with Kilimnik. 8 9 He was also asked about a February 2017 meeting regarding and questions about his role 10 doing research in advance of Ukrainian elections and his 11 polling for a Ukrainian candidate. 12 reply to the FBI declaration, basically, Gee, it was just all 13 so confusing. 14 sort of acknowledged most of this. 15 fact separately and each attempt to dissemble about Kilimnik 16 individually, they might not support a finding of criminality. 17 The defense says, in its And it points out that at the end of the day he And maybe if you took each But there are multiple instances of this and they all 18 follow a pattern. 19 after it's clear that the Office of Special Counsel already 20 knew the answer. 21 the Office of Special Counsel to pull teeth; withholding facts 22 if he can get away with it. 23 with what was contemplated by the plea, and it supports the 24 breach determination. 25 Concessions comes in dribs and drabs, only Again, it's part of a pattern of requiring And that's just not consistent Denying the meeting was denying a contact 30 1 that was a part of what the Office of Special Counsel was 2 investigating. 3 With respect to the questions regarding his efforts 4 to conduct polling in the Ukraine in connection with its 5 upcoming elections and to have the polls test the reaction to 6 that Kilimnik were still 7 trying to advance, and questions concerning Kilimnik's 8 knowledge and involvement, we again have a series of revised 9 explanations, grudging revelations and admissions. 10 The defense tries to argue, well, it's only a few 11 questions in the poll and those were collateral to the main 12 thrust of the poll, which is the presidential election. 13 don't think that can really be minimized in that way. 14 were the questions that were provided by Manafort and they were 15 important to him and to Kilimnik. 16 But I These On page 6 of docket 470, the defendant's response to 17 the breach determination, the defense explains and tries to 18 minimize Manafort's initial inaccurate statements about meeting 19 Kilimnik 20 recall events from that time period because his primary focus 21 was the U.S. presidential campaign, and he's not likely to 22 recall other, less pressing events like conversations about by saying, Well, it's reasonable he wouldn't 23 24 25 in some other country. Maybe. But seems to have been a recurring 31 1 ; in particular, the 2 3 , doesn't seem to have ever been far from Manafort's mind, even when he was working on the campaign. 4 But even if I want to give that argument some weight, 5 running a presidential campaign is, after all, a fairly 6 all-consuming exercise. 7 completely when the defense goes on to say, in the next 8 sentence, quote, The same is true with regard to the 9 government's allegation that Mr. Manafort lied about 10 That explanation falls apart Mr. Kilimnik related to the 11 , period, close quote. 12 That's not the same at all. You can't say you didn't 13 remember that because your focus at the time was on the 14 campaign. 15 busy to arrange and attend the meeting and to send Gates That relates to the campaign. 16 17 And he wasn't too that very day. It's problematic no matter how you look at it. 18 If he was, as he told me, so single-mindedly focused 19 on the campaign, then the meeting he took time to attend and 20 had 21 had a purpose . Or, if it was just part of his effort to 22 23 , 24 well, in that case he's not being straight with me about how 25 single-minded he was. It's not good either way. 32 1 2 Plus, his asserted inability to remember rings hollow when the event we are discussing involving 3 4 not only 5 but he's with a specific understanding and intent that 6 7 at a meeting in which the participants made it a 8 point of leaving separate because of the media attention 9 focused at that very time on Manafort' relationships with 10 Ukraine. 11 This is another example of the distinction between a 12 simple denial or failure of recollection and an assertion of 13 fact. 14 statement occurred before the grand jury. 15 And the concern here is greater because this false He told the grand jury he only told Gates 16 17 18 19 The grand jury testimony, Exhibit 4, begins, on page 152 on that matter, quote, 20 21 22 23 24 25 When asked, on page 154, what exactly did you 33 1 2 All this a contrary to what Gates had to say. 3 Exhibit 222, the FBI 302 of the January 31st, 2018 proffer 4 session, Gates said he 5 6 7 8 Now its true that particular 302 doesn't specify 9 10 But publicly available are publicly available, so why would one need 11 ? 12 Exhibit 223, September 27th, 2018, the FBI 302, 13 Mr. Gates said clearly, on that day, the 14 told he was 15 16 Defense says I shouldn't believe Gates. But even if 17 I take into account his lack of recollection of certain details 18 and dates, there's no reason to reject at all in its entirety. 19 The defense pointed to articles outside the record regarding 20 the Virginia trial, whether one or more of the jurors there in 21 fact decided to set aside his testimony because they were 22 concerned about the credibility of a witness who had made a 23 deal. 24 turned out to be consistent with his testimony. 25 important, the tax evasion, bank fraud, FBAR, and FARA The verdict, based on the documents alone, if it was, More 34 1 allegations supported by Gates's testimony have all been 2 admitted to under oath by Manafort himself. 3 Gates said was inculpatory. 4 couldn't answer, and there was a lot of what he said that 5 supports Mr. Manafort's theory. 6 points out, he minimizes the significance of 7 in the first place. 8 9 And not everything There were some questions he For instance, as the defense More important to me, there's other corroboration. There's Exhibit 233, an 10 Now, 11 I was told on February 8th, for the first time, in the third 12 pleading that was filed in response to these allegations and 13 after the hearing was over, that when Mr. Manafort said 14 15 16 There's 17 nothing provided to substantiate that, but there's also nothing 18 in the record to indicate one way or the other that the two men 19 had met previously 20 21 All Gates said to the FBI in Exhibit 236 on January 30th was that 22 23 24 25 . solely? Is that text alone definitive? No. Am I relying on that But is it corroborative of Gates's statement that Yes. So the defense said at the hearing, Well, it's a 35 1 recent fabrication. 2 3 until September. 2018. Exhibit 222, as I noted, on January 31st, on page 17, he did say 6 7 September of But it turns out the record doesn't support that. 4 5 He didn't say Manafort's direction. Exhibit 236, the 302 from January 2018, Gates says we discussed 8 9 . Those are pretty specific words. 10 Exhibit C to docket 504, the FBI 302 from February 7, 11 2018, which has more recently been provided by the government, 12 on page 15 it notes that Manafort said, back in February -- 13 that Gates said, back in February, Manafort 14 15 16 17 This conclusion is reinforced when you see the series of emails from Kilimnik to 18 19 and he goes on. 20 So, the defense took another tack then and said, 21 Well, it's not important because these 22 gibberish. 23 perhaps, true that I don't know 24 true that Mr. 25 Mr. Manafort, Mr. Gates, and Mr. Kilimnik are Who knows what they mean? are I reject that. It is, and it's perhaps , but 36 1 2 3 . 4 Indeed, the 302s make mention of the fact that 5 Manafort specifically wanted his own 6 company, instead of 7 recently provided 302 from Mr. Gates emphasizes that 8 9 10 people, , helping out. 's And the s was the particular sort of traditional Manafort found . And here they're at a meeting where they specifically talked about 11 12 13 . that's not a very strong argument. 14 15 So Also, the evidence indicates that it was understood that 16 would be including from Kilimnik , and . 17 Whether Kilimnik is tied to Russian intelligence or he's not, I 18 think the specific representation by the Office of Special 19 Counsel was that he had been, quote, assessed by the FBI, 20 quote, to have a relationship with Russian intelligence, close 21 quote. 22 evidence that I would need to decide, nor do I have to decide 23 because it's outside the scope of this hearing. 24 it's true or not, one cannot quibble about the materiality of 25 this meeting. Whether that's true, I have not been provided with the And whether 37 1 In other words, I disagree with the defendant's 2 statement in docket 503, filed in connection with the dispute 3 over the redactions, that, quote, the Office of Special 4 Counsel's explanation as to why Mr. Manafort's alleged false 5 statements are important and material turns on the claim that 6 he is understood by the FBI to have a relationship with Russian 7 intelligence. 8 9 I don't think that's a fair characterization of what was said. The intelligence reference was just one factor in a 10 series of factors the prosecutor listed. 11 the appointment order, "any links," is sufficiently broad to 12 get over the relatively low hurdle of materiality in this 13 instance, and to make the 14 And the language of Kilimnik and 15 material to the FBI's inquiry, no matter what his particular 16 relationship was on that date. 17 18 At the hearing the defendant pointed me to Exhibit 230 as support for its claim that actually Kilimnik was 19 20 and, 21 therefore, I should consider the Office of Special Counsel's 22 representation that he was connected to Russian intelligence to 23 be rank speculation. 24 25 First of all, I don't think these two things are mutually exclusive. An individual could 38 1 2 . But as I've said, I'm not making a 3 finding either way and I don't think it's necessary to the 4 decision I have to make. 5 loyalties, or activities could be 6 7 , doesn't make the meeting immaterial or Manafort's testimony about it truthful. 8 9 10 The fact that Kilimnik's status, I'm also not sure that Exhibit 230 proves the defendant's point. It is an August 18, 2016 email sent to an individual in 11 in which Kilimnik voices his personal 12 opinion about comments being made publicly about any affinity 13 between 14 15 16 I note that 17 on the part of Kilimnik, as opposed to what might 18 jump out as 19 because 20 . 21 22 , And the focus of the . He advances the view that, as he sees it, 23 24 25 . 39 1 It's also notable that in 2 3 4 . 5 So the email doesn't really answer the question 6 And as we know, Manafort was gone the next day. defense counsel raised one way or the other. 7 In a submission related to the dispute over 8 redactions to the hearing transcript, the defendant provided 9 more information, that was docket 503, documents that have been 10 provided in response to his discovery request that do confirm 11 that Kilimnik regularly spoke with officials in the embassy, 12 and the Office of Special Counsel confirmed that at the 13 hearing. 14 Again, and without more guidance on the technical 15 meaning the word has in this context, I don't have the record 16 to decide, don't need to decide, and probably shouldn't decide 17 if the defendant's characterization of Kilimnik 18 accurate or not, and I'm not making any finding one way or the 19 other on that issue. 20 21 22 I do note that in the FBI 302 the defendant asked me to review as an attachment to docket 503, the interviewee noted that when 23 24 25 . So they have that in common. 40 1 The important thing is neither Exhibit 230 or any of 2 the other information provided changes the outcome in my 3 finding on this matter. 4 evidence that Mr. Manafort made intentional false statements to 5 the FBI and the grand jury with respect to the material issue 6 of his interactions with Kilimnik, including, in particular, 7 the 8 9 And I find by a preponderance of the . On that note, I also want to say we've now spent considerable time talking about multiple clusters of false or 10 misleading or incomplete or needed-to-be-prodded-by-counsel 11 statements, all of which center around the defendant's 12 relationship or communications with Mr. Kilimnik. 13 topic at the undisputed core of the Office of Special Counsel's 14 investigation into, as paragraph (b) of the appointment order 15 put it, Any links and/or coordination between the Russian 16 government and individuals associated with the campaign. 17 This is a Mr. Kilimnik doesn't have to be in the government or 18 even be an active spy to be a link. 19 is the case, that we have now been over Kilimnik, Kilimnik, and 20 Kilimnik makes the defense argument that I should find the 21 inaccurate statements to be unintentional because they're all 22 so random and disconnected, which was an argument that was made 23 in the hearing, is very unpersuasive. 24 25 The fact that all of this But we now get to go on to another topic, which is IV, about another Department of Justice investigation. There 41 1 are allegations in connection with the 2 investigation into potential involving 3 4 . 5 The allegation is that Mr. Manafort offered a version 6 of events that downplayed role and/or 7 knowledge, specifically including his knowledge of any 8 involvement of 9 and less incriminating of that was inconsistent with than what he had already said 10 during a plea proffer, and was inconsistent with what 11 Mr. 12 himself was telling the FBI, and that in this session where he 13 watered down when he'd said before the plea, he had to be 14 redirected by his lawyer multiple times. 15 himself -- was consistent with what Mr. Defendant suggested it's not really that important 16 because it wasn't about his own wrongdoing and all the 17 statements were corrected in the same interview. 18 I buy that because the point of seeking cooperation from a 19 person at the highest level of the campaign was to obtain 20 accurate information about the acts of others, in particular, 21 what transpired 22 me. 23 . I'm not sure So it's very troubling to Also, you don't have a situation where he reverted to 24 the original version after consultation with counsel, but he 25 cycled through a series of different inaccurate versions. 42 1 Exhibit 301, the proffer session with the Office of 2 Special Counsel and the FBI on September 13, counsel was 3 present. 4 regarding a, quote, 5 He advised the FBI that Mr. had contacted him . that day. So they had to go meet told Manafort that 6 7 8 9 They had the meeting. 10 Manafort didn't recall the name. 11 said to , but And at the meeting , in Manafort's presence, that 12 13 14 . 15 . Later, told Manafort When contacted by 16 what Mr. 17 discuss it with him, didn't want him involved, and ultimately 18 just told him it had been handled. 19 20 called a regarding Okay. , Manafort said he didn't Then he pled guilty and attended a debriefing session where representatives from 21 were present. October 22 5th, 2018, Exhibit 300, FBI 302, we've not got a different 23 version. 24 leaves out any reference to 25 of the problem. The first go-around is totally whitewashed. He says after the He or the nature he got a call 43 1 from 2 saying It wasn't specified. 3 alarm, not an issue. 4 of the first meeting. 5 It was later told it was a false So counsel refreshed him with the notes Second time Mr. Manafort says, Oh, Mr. 6 around the same time about a 7 that 8 told 9 of mentioned . And he it would been handled and that he had no knowledge 10 had come out. 11 There's some more reading of prior notes, he gives a 12 different account. 13 with This time he remembers being at a meeting , says they were speaking in shorthand. 14 15 and called . said that Manafort told him it was 16 17 18 19 20 21 22 23 24 25 . The fourth time he says called, said 44 1 2 3 I note that at no point has the defense told me in 4 any pleading that the first version was mistaken. I can't find 5 that these variations can be explained by a failure of 6 recollection. 7 what had been said by the defendant himself only a month 8 before. 9 had taken place to shield possibly Mr. The versions were not at all consistent with The evidence suggests that he decided to obscure what 10 11 12 . This withholding of facts, this begrudging behavior, advancing a new version that's less inculpatory of 13 was significant enough to 14 set off alarm bells with his own lawyers, not consistent with 15 the plea offer, and fairly considered by the Office of Special 16 Counsel to be a breach. 17 what he said and what he reported less than a month before and 18 the effort it took to get him even close to what he said the 19 first time, I find if to be intentionally false. 20 And given the stark difference between Finally, the fifth category of information was 21 contacts with the administration. Here, I'm not persuaded that 22 the Office of Special Counsel has presented evidence of an 23 intentional misrepresentation, or really a breach of any moment 24 with respect to this issue, although it's already been conceded 25 that they acted in good faith in making the allegation. 45 1 The Office of Special Counsel says its concern is his 2 denial of even indirect communication. 3 claim that he lied about not having direct communication. 4 point to Exhibit 10, page 2, the FBI 302 from October 16th 5 which reports Manafort never asked anyone to try to communicate 6 a message to anyone in the administration. 7 They don't challenge or They Again, I don't have the specificity I need about what 8 question was asked to prompt that. 9 or indirect? What was he asked? Was he asked was it direct And so I can't deem the grand 10 jury testimony and the documents with which I've been provided 11 to be evidence that what he said in that interview when he said 12 that was false. 13 While there is evidence he agreed to talk to other 14 people outside of the administration on 15 with the understanding that they might contact the 16 administration about 17 behalf , and he agreed that another of the administration could report that he had 18 Manafort's support, I'm not sure that's inconsistent with he, 19 quote, never asked anyone no try to communicate a message to 20 anyone in the administration. 21 I've seen the record regarding the matter, and 22 while it does seem as if part of the plan was that somebody was 23 going to contact 24 proved by a preponderance that he intentionally lied during the 25 debriefing with respect to this matter. , I can't find that the government has If there were other 46 1 contacts of concern to the Office of Special Counsel, as 2 counsel seem to allude to at the hearing, they haven't been 3 brought to my attention in this proceeding and they don't bear 4 and can't bear on my decision. 5 With that, I believe I've ruled on every issue that's 6 been put to me in connection with the breach proceeding. 7 think it's important to issue a public order and I will try to 8 do one that is consistent with all our previous redactions and 9 doesn't have any sealed material in it. 10 I do As I said at the outset, I'm going to determine the 11 applicability of any particular guideline provision at the time 12 of sentencing and not today. 13 we did before, establish a schedule for the receipt and review 14 of the transcript. 15 What I think we need to do is, as Assuming you get the transcript tomorrow by noon, how 16 long would you like to review it to propose redactions before 17 this makes it to the public record? 18 MR. WEISSMANN: 19 THE COURT: 20 (Pause). 21 MR. WEISSMANN: Can I just consult with -- Yes. Your Honor, the parties think if we 22 get it by noon tomorrow, we'll make every effort to get 23 something to you by the end of the day, literally, tomorrow. 24 But if for some reason we can't, first thing Friday morning. 25 THE COURT: Tomorrow is Thursday. Okay. Yes. All 47 1 right. 2 I think particularly after we have our next conversation, 3 hopefully there won't be any disputes about what needs to be 4 redacted and what doesn't. 5 promptly and we'll try to get this on the public record as soon 6 as possible. 7 Well, as soon as I get it, I'll review it. Hopefully, If there are, I'll resolve them I think there was an understanding back at the 8 beginning that the probation office would need to be informed 9 of my findings so that it could factor them into its 10 recommendation about the various guideline determinations. 11 does anybody have a point of view about whether it needs to be 12 informed of the rulings in their entirety, or whether once we 13 post the redacted transcript and we have the minute order, that 14 that is going to be sufficient? 15 So And I guess I have the same question because it 16 appears that the Court in the Eastern District of Virginia was 17 waiting to know how I ruled on these issues. 18 continuing to complete this docket with the redacted transcript 19 and a minute order is going to be enough for both of those 20 consumers, do you have a thought about that? 21 MR. WEISSMANN: So whether just So, taking those in turn. First, 22 with respect to probation, we have no objection to probation 23 getting the unredacted transcript. 24 it's incorporated in some aspect of the presentence report, 25 that's private in any event, since that doesn't become part of And we understand that if 48 1 the public record. 2 about the presentence report, I don't think the names would be 3 that relevant and we could sort of deal with that issue if 4 there's something in the presentence report that is sensitive. 5 And to the extent there's some dispute With respect to Eastern District of Virginia, we were 6 planning, after today's appearance, of writing some sort of 7 status report to alert the Eastern District of Virginia to the, 8 sort of, two issues that might be of relevance to it. 9 is, one, the concession with respect to the breach, and then Which 10 the Court's determination. 11 redacted version of the transcript, and then if the Court for 12 some reason wants to see the unredacted one, we, of course, 13 would not have an objection to that, but that wasn't initially 14 how we were going to proceed. 15 16 THE COURT: Well, I think that makes sense because that's what's public. 17 18 We were planning on submitting the And do you have any difficulty with their proceeding in that manner? 19 MR. WESTLING: I can only say that I am a little 20 concerned about sending a judge a redacted version, rather than 21 the whole transcript. 22 right to see everything that's there, without having to ask for 23 it. 24 respect to his position. 25 somehow keeping him out of the loop. I mean, I think Judge Ellis would have a I mean, I just think that's from a point of view with I feel uncomfortable that we would be 49 1 MR. WEISSMANN: Well, I guess my view is I'm not 2 asking -- I wouldn't ask this Court to make a ruling with 3 respect to a different judge, but we could always alert the 4 Court that if it wanted that material, of course it would be 5 provided. 6 and I might just be reading between the lines -- 7 The reason I think it's okay to proceed in that way, THE COURT: I think if you're going to docket there a 8 notice that I have ruled and then you docket there here's what 9 happened, I don't have any problem with your putting into the 10 notice that there's the sealed, unredacted transcript, the 11 parties agree that -- and I would agree that he could have it, 12 if he asked for it. 13 MR. WEISSMANN: 14 MR. WESTLING: 15 THE COURT: 16 17 18 19 20 21 22 23 24 25 That's fine. I think that's the point, Your Honor. All right. So I think we know how we're going to proceed. The only thing I have left to talk about is the dispute over the redactions. 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I'm going to try to do something to improve the situation from the defendant's point of view. I 65 1 don't think it's going to go as far as unredacting everything 2 that you originally asked me to unredact. 3 look again at the 302s before I decide. 4 MR. DOWNING: And I would like to Your Honor, just one other general 5 question: 6 down the road? 7 this case, and the law enforcement basis for it or ongoing 8 grand jury investigations. 9 to -- is the Office of Special Counsel going to notify the 10 Court that the reason stated for a particular redaction no 11 longer exists, or still survives? 12 of process that we can put in place? 13 How are we going to handle the process of unredacted I mean, there's been a lot of redactions in THE COURT: What is going to be the process Is it going to be some sort Well, in one case, I know with all the 14 search warrants, it was an evolving process. 15 that were withheld from you and then you got them but they were 16 still withheld from the press and then the press got them. 17 usually things have to be triggered by a motion or request by 18 someone. 19 everything to stay the way it is. 20 There were things But There may be reasons related to the defense for I, right now, without knowing with any particularity 21 what it is that you're concerned about, or if -- and not having 22 the press having filed anything today, asking for anything, I 23 don't know how to answer that question. 24 something that comes up in many cases, cases that were sealed 25 get unsealed later. But I think that is And if there's something that you think 66 1 should be a part of the public record that was sealed and 2 there's no longer any utility for it, obviously you could first 3 find out if it's a joint motion and, if not, then you file a 4 motion. 5 6 All right. minute order. I just have one question for my public The , the fact that 7 8 9 10 is still sealed. So I should not use that in my minute order, is that correct? 11 MR. WEISSMANN: 12 THE COURT: 13 MR. WESTLING: 14 THE COURT: I believe that's correct, Your Honor. Okay. We agree, Your Honor. Okay. So, I think then the Roman 15 numerals are a payment from Firm A, interactions with Kilimnik 16 about the obstruction of justice, interactions with Kilimnik, 17 another DOJ investigation, and contacts with the 18 administration. 19 Is that the best way to proceed? So I will use that shorthand to refer to them. 20 MR. WEISSMANN: 21 MR. WESTLING: 22 THE COURT: That's fine, Your Honor. That's fine, Your Honor. All right. Appreciate everybody's 23 patience as we move through all this. 24 time I see everybody is at the sentencing. 25 correct. All right. Thank you. And I guess the next I think that's 67 1 MR. ANDRES: 2 MR. WEISSMANN: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Thank you. Thank you. * * * 68 1 2 CERTIFICATE OF OFFICIAL COURT REPORTER 3 4 5 I, JANICE DICKMAN, do hereby certify that the above 6 and foregoing constitutes a true and accurate transcript of my 7 stenograph notes and is a full, true and complete transcript of 8 the proceedings to the best of my ability. 9 Dated this 14th day of February 2019. 10 11 12 /s/________________________ 13 Janice E. Dickman, CRR, RMR, CRC Official Court Reporter Room 6523 333 Constitution Avenue NW Washington, D.C. 20001 14 15 16 17 18 19 20 21 22 23 24 25