There are always wrinkles in the Mueller investigation that make quick legal analysis tricky. So it is with the “superseding” indictment the special counsel unveiled Thursday against Paul Manafort and Richard Gates.
I use scare quotes because “superseding” is a misnomer in this instance. A superseding indictment is meant to replace prior indictments. To the contrary, Special Counsel Robert Mueller’s new indictment adds new charges against the two defendants, but it is apparently not intended to cancel out the first indictment — at least, not right away.
Since I assumed that “superseding” meant what it said (and because I thought that replacing what I see as shaky initial charges with strong tax- and bank-fraud charges was the smart thing to do), I wrote in last night’s column that Mueller was abandoning the three main allegations in the original indictment — money laundering, failure to register as foreign agents (the “FARA” violations, of the Foreign Agents Registration Act), and “conspiracy against the United States” (another misnomer — the prosecutor meant conspiracy to defraud the United States).
That may not be so.
Instead, it looks as if Mueller may have wanted to keep all the charges together but ran into a venue problem. The tax- and bank-fraud offenses were allegedly committed in Virginia, where Manafort resides, not in the District of Columbia, where the original indictment was filed. Ordinarily, this is not a problem: Defendants do not want to be tried twice, so they waive venue objections, allowing all the charges to be tried in one proceeding.
(Though they are often confused, there is a difference between jurisdiction and venue. For these purposes, jurisdiction is not a place. It refers to the court’s legitimate authority to try a case. Federal district courts have jurisdiction to try any offenses of federal law committed anyplace, even outside the district. Venue is the district where the offense allegedly occurred. Even though a federal district court in Washington has jurisdiction — the power — to try a Virginia offense, a defendant, if he insists, has a right to be tried in the proper venue — meaning, in a federal district court in Virginia if that is the locus of the offense.)
In this instance, Manafort and Gates apparently refused to consent to be tried in Washington on the Virginia allegations. Mueller therefore filed the tax- and bank-fraud charges in the Eastern District of Virginia (in Alexandria); the original money-laundering indictment in the District of Columbia still stands.
Mueller’s new indictment should not have been called a “superseding indictment” because there was nothing in Virginia to supersede.
Something else is peculiar. One set of offenses is charged in both indictments: the so-called FBAR counts, involving the failure to file Treasury reports about foreign bank accounts in which an American has a controlling interest. When a new indictment supersedes an earlier indictment, it is common for the prosecutor to repeat anything he wants to preserve from the former indictment. The implication, of course, is that any charges not repeated have been abandoned. That is another reason why I assumed Mueller was forgoing the money-laundering, FARA, and conspiracy-against-the-U.S. charges.
Instead, Mueller has now charged the same FBAR offenses in two different districts. Obviously, this presents a double-jeopardy problem — the FBAR counts will have to be tried in one place or the other, not both. Because Mueller included them in the Virginia indictment, and because they are similar to tax charges, it appears that Mueller will seek to proceed on the FBAR counts in Virginia and eventually dismiss them from the Washington indictment.
A lot of work has gone into the Washington case since October, when the original indictment was filed. In fact, Manafort has filed a civil lawsuit in the District of Columbia against Mueller and the Justice Department, claiming that the charges against him should be dismissed because they exceed the special counsel’s jurisdiction. While I have argued that a civil lawsuit is an inappropriate vehicle for raising this objection (Manafort should, instead, have made a motion to dismiss the indictment within the confines of the criminal case), the objection is not a frivolous one.
Moreover, Manafort’s claim would apply equally to the tax- and bank-fraud charges that Mueller has now filed in Virginia. Presumably, he will be filing a civil suit there as well. Otherwise, it would be an implicit concession that he should not have filed the civil suit in Washington.
Mueller will likely seek to proceed on the Virginia charges first — they not only are stronger and carry very weighty sentences; they are also the product of four additional months of investigation.
All that said, I still believe Mueller sees the Virginia indictment as, in effect, a superseding indictment. That is, he will likely seek to proceed on the Virginia charges first — they are not only stronger and carry very weighty sentences; they are also the product of four additional months of investigation and thus represent the prosecutor’s refined understanding of the underlying facts and evidence. Mueller no doubt calculates that if he convicts Manafort and Gates on what’s alleged to be a $30 million scheme in Virginia, there would be no need to prosecute the Washington case; therefore, those charges would eventually be dismissed — which is what usually happens when a superseding indictment replaces prior indictments in the same district.
Therefore, while nothing ever seems certain in this investigation, the betting here is that Mueller will ask that the Washington proceedings be suspended while the Virginia case goes forward; and Manafort will file a civil suit in Virginia that mirrors the one he filed in Washington. The prosecution will proceed in Alexandria (I assume the court will dismiss or deny Manafort’s civil claims). Whether the Washington case is ever revived will depend on the outcome in Virginia.
Editor’s Note: The headline of this article has been updated.