Case 1:17-cr-00201-ABJ Document 79 Filed 12/07/17 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
PAUL J. MANAFORT, JR.,
Defendant.

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Crim. No. 17-201-1 (ABJ)

DEFENDANT PAUL J. MANAFORT, JR.’S REPLY MEMORANDUM TO THE
GOVERNMENT’S OPPOSITION TO MOTION TO MODIFY CONDITIONS OF
RELEASE AND RESPONSE TO MINUTE ORDER DATED DECEMBER 5, 2017
Paul J. Manafort, Jr., by and through counsel, hereby submits this memorandum
in reply both to the Government’s opposition to the motion to modify his conditions of
release (ECF #73) and to the Minute Order dated December 5, 2017, requiring that he
show cause why he has not violated the Court’s Order dated November 8, 2017 (“Order”)
(ECF #38). Although the Office of Special Counsel consented to the substantial bail 
package  submitted  on  November  30,  2017,  the  Government  now  backs  out  of  its 
agreement because of Mr. Manafort’s alleged intention to violate or circumvent the 
Court’s  Order.    See  Opposition  (ECF  #73)  at  3  (emphasis  supplied).    The  Office  of 
Special  Counsel  misreads  the  breadth  of  the  Order,  and  more  importantly,  ignores 
the controlling case law cited by the Court therein.  There has been no violation of 
the  Order  and  no  basis  for  the  Government’s  withdrawal  of  its  consent  to  the 
modified  bail  package.  Moreover,  the  Government’s  interpretation  would 
unconstitutionally vitiate Mr. Manafort’s rights to defend himself and his reputation, 
and to correct the public record. 

 

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The  Office  of  Special  Counsel  claims  that  Mr.  Manafort  violated  the  Order 
when  he  edited  a  draft  op-ed,  authored  by  a  Ukrainian  national,  to  ensure  its 
accuracy.  The Order instructed “all interested participants in the matter, including 
parties,  potential  witnesses,  and  counsel  for  the  parties  and  the  witnesses,  .  .  .  to 
refrain  from  making  statements  to  the  media  or  in  public  settings  that  pose  a 
substantial  likelihood  of  material  prejudice  to  this  case.”    Order  at  2.    The  defense 
did  not,  and  does  not,  understand  that  the  Court  meant  to  impose  a  gag  order  
precluding Mr. Manafort from addressing matters, which do not “pose a substantial 
likelihood  of  material  prejudice  to  this  case.”  The  op-ed  was  to  appear  in  a 
newspaper published, not in the United States, but in Kiev, Ukraine.  As the Supreme 
Court noted in the case cited in the Order, “[t]he ‘substantial likelihood’ test . . . was 
designed to protect the integrity and fairness of a . . . judicial system, and it imposes 
only narrow and necessary limitations on . . . speech.”   Gentile v. State Bar of Nevada,
501 U.S. 1030, 1075 (1991). 
The Special Counsel’s Opposition — devoid as it is of both legal analysis and 
legal precedents — claims that Mr. Manafort has engaged in wrongdoing when all he 
has tried to do is to correct the public record in Ukraine concerning his consulting 
activities  in  Ukraine.      The  draft  op-ed  was  authored  by  Oleg  Voloshyn,  a  former 
spokesperson for the Ministry of Foreign Affairs of Ukraine.  It was intended to be, 
and has been, published in a Ukrainian newspaper, the Kyviv Post.  There is nothing 
in the draft op-ed that would “pose a substantial material likelihood of prejudice to 
this case.”  

 

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More specifically, in the Order, the parties, “in particular, counsel for both sides,”
are directed to the U.S. Supreme Court’s holding in Gentile, and instructed “to refrain
from making statements to the media or in public settings that pose a substantial
likelihood of material prejudice to this case.” See Order at 1-2. In Gentile, an attorney –
held a press conference the day after his client was indicted (and six months before the
actual trial). At the press conference, the lawyer contended generally that the evidence
demonstrated his client’s innocence, that the likely culprit of the crime was a police
detective, and that other victims were not credible witnesses. Id. at 1059-1060. The state
bar argued that the attorney had violated a disciplinary rule that prohibited him from
making extrajudicial statements that he knew would have a substantial likelihood of
materially prejudicing the proceeding. Id. at 1033. The State Supreme Court upheld the
disciplinary board’s finding, but the U.S. Supreme Court reversed the judgment. Id. at
1033, 1058.
The high court’s analysis stands in stark contrast to the Office of Special
Counsel’s position. In Gentile, Justice Kennedy noted that “[n]either the disciplinary
board nor the reviewing court explain any sense in which petitioner’s statements has a
substantial likelihood of causing material prejudice.” Id. at 1038 (Kennedy, J., joined by
Justices Marshall, Blackmun, and Stevens, concurring). Here, too, the Office of Special
Counsel makes no attempt to explain how the op-ed has a substantial likelihood of
materially prejudicing the trial of this case. Rather, it ignores Gentile (and the specific
wording of the Court’s Order) and creates its own new standard that even if the op-ed
were entirely accurate, fair, and balanced, it would be a violation of this Court’s Order if
the op-ed had been published. (See ECF #73 at 2). Under the Special Counsel’s view, if

 

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one makes a statement to influence the public’s opinion, that is a violation of the Court’s
Order. There is no plausible reading of Gentile or of the Order that supports this
conclusion.
The Order only requires that the parties refrain from making public statements
that “pose a substantial likelihood of material prejudice to this case.” (See ECF #38 at 2).
The Special Counsel’s standard would lead to the constitutionally untenable conclusion
that a defendant is not even allowed to maintain his or her innocence when such an order
is entered because, by doing so, that statement might influence the public’s opinion. In
the Special Counsel’s view, Mr. Manafort is apparently never allowed to set the factual
record straight once an order under Local Criminal Rule 57.7(c) is entered, nor is he
allowed to openly maintain his innocence. He must simply remain silent while his
reputation is battered, and potential jurors in this District might be tainted. Fortunately,
the fundamental right of freedom of speech is not abrogated because a U.S. citizen is
charged with a crime. Indeed, in the opinion of at least four Justices of the Supreme
Court, even “an attorney may take reasonable steps to defend a client’s reputation . . .
including an attempt to demonstrate in the court of public opinion that the client does not
deserve to be tried.” Gentile 501 U.S. at 1043 (Kennedy, J., joined by Justices Marshall,
Blackmun, and Stevens, concurring). If an attorney can do so, clearly the defendant may
do so as well.
There was no violation of this Court’s Order, and the Office of Special Counsel
should be held to its word with respect to the agreed-upon bail package. A fair reading of
the Local Criminal Rule establishes that to the extent speech may be restrained, it is not a

 

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“gag order.” Even a cursory reading of Gentile establishes that a defendant (and his
counsel) do not lose all of their First Amendment rights in a criminal prosecution.
The Government neglects to discuss the only case cited in this Court’s Order, and
also fails to analyze critically the Order itself. The Opposition is not supported by the
facts or the law, and it certainly cannot form the basis for requiring the additional
conditions of release that the Office of Special Counsel seeks.
The Bail Reform Act instructs the judicial officer to implement the least
restrictive condition, or combination of conditions, that will reasonably assure the
appearance of the person as required.

See 18 U.S.C. Section 3142(c)(1)(B).

Furthermore, “Section 3142 speaks only of conditions that will ‘reasonably’ assure
appearance, not guarantee it.” United States v. Xulum, 84 F.3d 441, 443 (D.C. Cir. 1996)
(per curiam). The substantial bail package that Mr. Manafort has submitted to Court
satisfies these requirements in full, regardless of whether the Office of Special Counsel
agrees or not. And, in fact, the Office of Special Counsel last week agreed that this bail
package met the requirements of the Bail Reform Act.

 

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WHEREFORE, Defendant Manafort moves to modify his current conditions of
release as outlined in his motion filed on November 30, 2017.
Dated: December 7, 2017
Respectfully submitted,

______________________________
Kevin M. Downing
(DC Bar # 1013984)
Thomas E. Zehnle
(DC Bar #415556)
815 Connecticut Avenue
Suite 730
Washington, DC 20006
(202) 754-1992

 

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