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By Ken Dilanian
WASHINGTON — Three new court documents are scheduled to emerge Friday that could shed new light on what Donald Trump’s former top aides have been telling — or not telling — federal investigators.
A federal judge in New York has ordered that prosecutors for the Southern District of New York and the Special Counsel’s Office have until 5 p.m. Friday to deliver sentencing memos designed to detail former Trump lawyer Michael Cohen’s cooperation in their ongoing investigations.
And special counsel Robert Mueller is also due to file a document spelling out what his team previously referred to as the “crimes and lies” that led them to cancel a cooperation agreement with former Trump campaign chairman Paul Manafort.
Dec. 3, 201809:35
Legal experts say it’s likely that both documents will contain sections that are blacked out, as was the case with the sentencing memo Mueller filed Tuesday in the case of former national security adviser Michael Flynn.
The theory that Mueller would use these documents to inform the public about the progress of his ongoing investigation into Russian election interference and related matters did not pan out in the case of the Flynn memo. Key sections of that memo were redacted, including crucial questions about what Trump knew and when about Flynn’s lies to the FBI — and a whole page describing a separate criminal investigation.
Mueller’s decision to withhold that information shows, some experts say, that the former FBI director does not feel that his investigation is at risk of being derailed by Acting Attorney General Matthew Whitaker, who had expressed open hostility toward it before his appointment.
Nov. 30, 201802:11
“He disclosed so little in the Flynn memo that it led me to conclude two things,” said former federal prosecutor Glenn Kirschner, an NBC News legal analyst. “One, he doesn’t have a sense of urgency, and two, he probably has a lot more investigating to do. If he was ready to show his cards, he wouldn’t have redacted all this stuff.”
Former federal prosecutor Peter Zeidenberg says there may be something else at play:
“As usual, Mueller may be thinking two steps ahead of the rest of us.”
“If it’s public it won’t be sensitive and if it’s sensitive it won’t be public.”
Zeidenberg noted that Trump has not tweeted or uttered a word about Flynn since the sentencing memo on Flynn was filed, in contrast to Trump’s immediate attack on Cohen after Cohen pleaded guilty last week to lying about a Trump Tower project in Moscow.
“Trump’s been quite quiet since that filing,” Zeidenberg said. “He hasn’t attacked Flynn. If those blanks had been filled in, Trump’s head would have exploded — he’d be going crazy.”
“If Mueller waits and does his big reveal all at once, everything’s done. It’s too late” for Trump to engineer his firing, Zeidenberg said.
“If he were to have revealed everything on those redactions now, it could jeopardize ongoing matters, and it wouldn’t have been smart politically for his continued survival. I think it probably makes a lot of sense. Trump doesn’t want to attack Flynn because he doesn’t know whether Flynn is coming at him.”
As for the Southern District’s sentencing memo for Cohen, he is also cooperating in separate ongoing investigations that district prosecutors would likely want to keep secret, so that document may also be redacted.
Chuck Rosenberg, a former federal prosecutor and NBC News legal analyst who once worked with Mueller, said Mueller — a by-the-book former Marine combat leader — likely never considered making public anything to do with ongoing criminal matters.
The rule of thumb, he said, is “if it’s public it won’t be sensitive and if it’s sensitive it won’t be public.”
Dec. 5, 201812:31
Rosenberg believes Friday’s filings will be “mildly interesting,” in that they may further describe in general terms how helpful prosecutors believe Cohen to have been, and also what sort of lies they allege Manafort told that blew up his plea deal.