Paul Manafort's Lawyers Learn That Obvious Thing You Learned As A Summer Associate
Why does this keep happening?
Paul Manafort (Photo by Elsa/Getty Images)
Yesterday, Paul Manafort’s attorneys — Richard W. Westling of Epstein Becker & Green, Kevin M. Downing, and Thomas E. Zehnle — filed a sensitive motion in Manafort’s ongoing battle with Special Counsel Robert Mueller over allegations that Trump’s former campaign manager lied to federal investigators over and over and over again. Unless you’re Alan Dershowitz, you probably know that lying to the feds is a bad move.
Given the touchy nature of the matter, Manafort’s attorneys made several redactions to the filing that would end up publicly available on PACER. This is where things go off the rails.
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As anyone with more than a week or two of litigation training knows, the first thing you do when you’re given a redacted document is highlight and copy the redacted portion and paste it into another document. If the redacting counsel is either lazy or clueless, the underlying text will show up because the default manner of PDF redacting only inserts a black layer over the text rather than actually getting rid of it.
And that’s just what Mike Scarcella of Law.com did and you know what happened next!
It’s astounding that mistakes like this still happen. A couple years back, the DOJ took a shotgun to their whole LIBOR prosecution by failing to appropriately redact testimony by former Deutsche Bank trader Gavin Black. In that case, Law360 found the screwup and the DOJ scrambled to replace the document. When asked for comment
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A DOJ spokesperson attributed the improper redactions to “a technical error in the electronic redaction process” that allowed for “manipulation” of the file’s “metadata,” according to Law360.
Yes, the “manipulation” of “metadata” that is copying and pasting. Crackerjack outfit Jeff Sessions ran.
But this time the shoe is on the other foot and it’s the defense’s turn with the dunce’s cap. The compromised Manafort document is still available here if you’re looking to do some copy and pasting.
If you aren’t, here are the paragraphs that were supposed to get the ax:
* (See, e.g., Doc. 460 at 5 (After being shown documents, Mr. Manafort “conceded” that he discussed or may have discussed a Ukraine peace plan with Mr. Kilimnik on more than one occasion); id. at 6 (After being told that Mr. Kilimnik had traveled to Madrid on the same day that Mr. Manafort was in Madrid, Mr. Manafort “acknowledged” that he and Mr. Kilimnik met while they were both in Madrid)).
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* In fact, during a proffer meeting held with the Special Counsel on September 11, 2018, Mr. Manafort explained to the Government attorneys and investigators that he would have given the Ukrainian peace plan more thought, had the issue not been raised during the period he was engaged with work related to the presidential campaign. Issues and communications related to Ukrainian political events simply were not at the forefront of Mr. Manafort’s mind during the period at issue and it is not surprising at all that Mr. Manafort was unable to recall specific details prior to having his recollection refreshed. The same is true with regard to the Government’s allegation that Mr. Manafort lied about sharing polling data with Mr. Kilimnik related to the 2016 presidential campaign. (See Doc. 460 at 6).
* The Government has indicated that Mr. Manafort’s statements about this payment are inconsistent with those of others, but the defense has not received any witness statements to support this contention.
* The first alleged misstatement identified in the Special Counsel’s submission (regarding a text exchange on May 26, 2018) related to a text message from a third-party asking permission to use Mr. Manafort’s name as an introduction in the event the third-party met the President. This does not constitute outreach by Mr. Manafort to the President. The second example identified by the Special Counsel is hearsay purportedly offered by an undisclosed third party and the defense has not been provided with the statement (or any witness statements that form the basis for alleging intentional falsehoods).
You know what they say, “money can buy you $15,000 ostrich feather coats, but it can’t buy you tech savvy attorneys.”
Paul Manafort’s Lawyers Tried—and Failed—to Redact This Sensitive Legal Filing [Mother Jones]
Earlier: Stupid Lawyer Tricks: Legal Tech Edition
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
