The unusual move is an indication of the aggressiveness of special counsel Robert Mueller's prosecution team as they prepared to indict Manafort and Gates on charges of money laundering and failing to register as foreign agents. The 12-count indictment was made public on Monday.
Lawyers for Manafort and Gates fought the prosecution's drive to intrude on attorney-client communications. But Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia ruled that an exception, which involves using a lawyer to commit crime or fraud, applied to contacts with an attorney who helped respond to inquiries about why the pair had not filed foreign-agent lobbying registrations with the Justice Department.
The judge's 37-page opinion did not name the attorney prosecutors sought to put before the grand jury. CNN reported in August that Mueller's team was seeking the testimony of Melissa Laurenza, a partner at Akin Gump.
Spokespeople for Mueller's office and for Manafort declined to comment. Laurenza and spokespeople for Akin Gump and Gates did not immediately respond to requests for comment.
Howell said evidence the Mueller team brought forward showed that Manafort and Gates were misleading or worse in their efforts to minimize their Ukraine-related work, especially in the U.S.
The judge said some facts, deleted from her opinion, "establish" that the pair's denial of U.S. activity for Ukraine's Party of Regions "is false, a half-truth, or at least misleading because evidence shows that Target 1 and Target 2 were intimately involved in significant outreach in the United States on behalf of [a European think tank,] the Party of Regions and/or the Ukrainian government."
New York University law professor Stephen Gillers said the judge was persuaded that there was significant evidence Manafort and Gates had duped their lawyer into sending inaccurate letters to Justice about their lobbying efforts and about what emails might exist about the work.
"Essentially, the judge is saying that it is probable or likely that the clients had a criminal or fraudulent purpose in hiring the lawyer, even if (we would hope) the lawyer did not know it," Gillers told POLITICO.
Much of the prosecution's case for believing that the statements were false was redacted from the public version of Howell's opinion, but the professor said the fact that the judge was persuaded is meaningful for the pending case and beyond.
"The implications of this decision are significant. First, a judge has decided that the clients were committing a crime or fraud and using a lawyer to do it. So that tells us something about the strength of the OSC's evidence. The OSC had the burden of proof and it met it," Gillers said. "Further, once you can pierce the privilege, there's no telling what information you can go on to discover. This decision will be useful in other contests to discover lawyer-client communications, even communications with different law firms, if any."
While Mueller's team generally prevailed in the privilege fight, the judge allowed prosecutors to ask only seven of eight questions they'd proposed. Howell said a question about whether the attorney made any record of her conversations with Manafort or Gates violated a protection for the mental observations of lawyers.
The chief judge moved with haste in the privilege fight, holding three hearings on the issue in the second half of September, before ruling on Oct. 2. It appears the court held off releasing the opinion until Monday, when the indictment of Manafort and Gates was unsealed and the two men appeared for an arraignment at the federal courthouse near the Capitol.
Comment: All that time and money, yet still: no evidence whatsoever of any collusion with the Russians.