Mueller Wants to Delay Telling Manafort and Gates What Other Crimes It Knows They Committed

The government just submitted a request to modify the deadline Judge Amy Berman Jackson set to give Paul Manafort and Rick Gates notice of other crimes or bad acts it will introduce at trial, what is called a Rule 404(b) notice. Currently, they have to provide that notice on April 6, but the judge is now considering a September rather than a May trial date, so prosecutors want to bump the 404 notice back accordingly.

Mueller’s prosecutors don’t want to give Manafort and Gates more than a couple months notice of the other crimes they’re going to unload during the trial. They also note that if they give notice in April, they may have to provide multiple notices as they learn of other bad acts.

Premature disclosure raises issues as well. For example, in declining to require disclosure that is too early, courts have recognized that “the evidence the government wishes to offer may well change as the proof and possible defenses crystallize.”

[snip]

For similar reasons, early disclosure can result in multiple Rule 404(b) notices and multiply the rulings that a court needs to make, thus undermining the efficient use of judicial and party resources.

The government wants to wait until 8 weeks before the trial before giving notice.

At least two things appear to be going on here. First, Mueller doesn’t want to tip his hand to the many crimes it has found Manafort implicated in. Perhaps, he also wants to avoid making other obvious allegations about Manafort and Gates to preserve their credibility when they flip on the President and his family. But it also seems to suggest Mueller expects he’ll be finding other crimes Manafort and Gates committed for the next 8 months.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

51 replies
  1. earlofhuntingdon says:

    What’s September?  This will all be over, the president will be cleared, absolutely, in a few weeks!!!  There can’t be any new allegations of crimes that would affect anyone but Manic Manafort and Guileless Gates. No way! Fake News!  How SAD!!!  :-)

    • bell says:

      manafort and gates – two true blue, or red – americans….”On October 30, 2017, Manafort surrendered to the FBI after news broke that a federal grand jury had indicted him and his business associate Rick Gates. The charges arise from his consulting work for a pro-Russian government of Viktor Yanukovych in Ukraine.”   one has to love  wikipedia for all the intelligence/propaganda they provide with these transparent terms…

      if they had only been handing out cookies like nuland and pyatt, – everything would have been fine! i hear there is still work for neo cons in the regime change dept at washington..  manafort and gates need not apply..

  2. Peterr says:

    Left out of Mueller’s filing with Judge Jackson was this:

    If Paul Manafort and Rick Gates do not already know the other crimes they have committed, they have larger problems than they think.

    Or words to that effect.

    • Avattoir says:

      To those who haven’t spent a lot of time in criminal trials, it can come as a surprise how frequently folks charged with X find themselves convicted of Y, or Z, or both.

      This isn’t a perception from one side: it’s gained from having worked both sides (tho not, of course, in the same case).

      • Peterr says:

        I don’t disagree with you, but in this case, I don’t think that what you describe is the situation.

        My somewhat-less-than-WAG is that Manafort and Gates know exactly what laws they have broken, in a failed effort to skirt these laws. The only question in their minds is whether Mueller knows.

        Kind of reminds me of the old radio drama “The Shadow” . . .

        Who knows what evil lurks in the hearts of men [sic]. The Shadow knows.

        And so, in this case, does Mueller.

        The bottom line of this filing is quite simple: Be afraid, Paul and Rick. Be very, very afraid.

        • Avattoir says:

          We may be floating in different zones on this.

          What I’m raising is a phenomenon that frequently occurs when folks  are charged with multiple crimes based on a lot of wiretap & documents that straddle a significant period of time.

          The temptation for the defendant is to view the charges within the lens of what YOU are driving at: what he ‘knows’ he’s done (tho, I’d put more like what he ‘understands’).

          This alone raises one source of problem: a person accused is very often not a reliable narrator on the issue of whether or not a particular charge is righteous. In part, that has to do with the difference between what a defendant remembers about what all happened – again, as your comment suggests, drawing on a wider & perhaps deeper view, being the experience of having lived a life thru that time period – versus the sorts of portraits available to be drawn by the jury from the evidence presented in court.

          But the problem goes deeper: another chunk of it derives from the perspicacity & memory of the accused as he lived thru that period, BOTH of those vulnerable to error & self-suppression.

          To that category of problem, there’s also the problem of the accused & his attorneys tending to ‘rank’ an indictment with multiple charges, in effect mounting their most vigorous challenge to the charge closest to what the accused ‘understands’ he’s ‘guilty of’, and meanwhile being less assiduous in challenging other counts more remote from what the accused ‘understands’ he’s ‘guilty of’. And, as with the first category of count, the one closest to what the accused thinks he did, it’s not a matter of what’s in his retained memory: it’s about what’s put before the jury.

          So now the kicker: it’s that first category of count that also tends to keep the defendant off the stand – which, maybe counter-intuitively, increases his vulnerability to being found guilty of other counts, ones to which he at least thinks he has some sort of defense.

          Maybe I could put this in a way that comes across less like pedantry. I’m not trying to pull rank here; it’s a function of the artificiality of trial proceedings.

          • Peterr says:

            Again, I don’t disagree that the situation you are describing happens — but I don’t think this is the case here. I think Manafort knows very clearly what laws he’s broken, because he took a lot of steps to avoid being detected breaking them. In this case, I don’t think it’s the pending counts that occupy his attention, but the other indictments that have yet to be filed. Y and Z are already on the table, but it’s X that has him worried, as well as A, B, and C.

            Your comment seems to assume that the key is what the defendant remembers, but in this case there is a lengthy paper trail for both Mueller and Manafort’s attorneys to use. I’ll grant you that many defendants are surprised by being convicted of lesser charges, in part because of a focus on defending against the top charge. In this case, however, I think it is working in the other direction. I think Mueller brought indictments that are (relatively) easily proven, in order to (a) get Manafort and Gates’ attention, (b) encourage them to cooperate, and (c) tamp down the criticism from Trump and others that this whole probe is a nothingburger. I think Marcy nailed it in her last paragraph, especially the last sentence, and Mueller’s message about future indictments is aimed at getting Manafort and Gates rattled.

          • Trip says:

            I know you are being neutral and fair in evaluation of the situation. I would normally consider that 8 weeks is not a lot of time to prepare for what looks like a huge, complicated case. And admittedly, I have bias against Manafort. That being said, is it possible that Manafort does know. As in, he was shown evidence already, told what he would/could be indicted for, in an attempt to get him to turn and plea, but maybe his lawyer has not seen it, or his lawyer has seen it, but is not in receipt of copies?  One of the items in the news piece, when the no-knock warrant went down, was that Manafort was told he was going to be indicted. How comprehensive that notice on indictments was is left to speculation.

            Mueller, obviously, must be cognizant of the shenanigans going on with Nunes and passing along every little scrap, to who knows how many witnesses and, as of yet, unindicted co-conspirators. One might even argue that with Manafort out in the wild (not in jail) some of the info might be hazardous to his health before going to trial, if foreign actors were uncovered, and Manafort has an ‘accident’ or heart attack (from blunt force trauma). In that case, what evidence would see the light of day as a warning shot, the ‘show and tell’ to others?

            I suppose the risks of exposure really don’t justify what could be perceived as unfairness to a defendant in due process, but I would expect under these special circumstances that Mueller would want to keep info tight to the vest, until the last possible minute.

            • bmaz says:

              No, any and all communication vis a vis Manafort goes through his attorney, full stop. Eight weeks is plenty for 404 bad acts. And, frankly, prior bad acts is nowhere near as critical to the defense as prepping their case in chief. I think they are trying to flush out whether Mueller is going to add charges via a superseding indictment, and Mueller wants to leave them dangling for now. Mueller just does not want to be locked in yet. And his shop is not leaking any of this, it is in response to affirmative actions by Manafort et. al.

              • Trip says:

                I didn’t mean to imply that Mueller was leaking anything now. I meant that the actual trial of Manafort and any other additional indictment could be a ‘tell’ to others if involved in a conspiracy. If he (Mueller) knew he might indict on other charges, but doesn’t want to do it now, that might be why. Wait for show and tell at trial, if that makes any sense.

                Maybe my communication efforts are destroyed and my brain is still scrambled after reading the ‘whistleblower’s’ artful but empty letter of esoteric insults and implied but not specified bad doings.

                • bmaz says:

                  Trip – Heh, naw, your communication is fine! I probably just misunderstood as to “leaking”. As to the “show and tell” aspects of a jury trial track, it is a weird deal. In the state jurisdictions where I practice, things are presumptively disclosed far more up front. In federal though, that presumption is nowhere near as concrete. I have literally had cases in some older days where I did not get full disclosure on government witnesses until after they had testified and I was ready for cross. That sounds asinine doesn’t it? Yet, in less enlightened districts, and cases, that can still occur.

                  As to “USGWhistleblower”…..yeah, that was nuts.

                  • SpaceLifeForm says:

                    Yes, USG Whistleblower may be nuts. Could be good smoke. As in smoking someone out.

                    What caught my eye was the registered letters.

                    I doubt one would go that route without a reason. Yeah, does not matter in court.

                    But it could just be an attempt to get particular targets to react. (provide Metadata)

                    • Trip says:

                      @SpaceLifeForm

                      How did you arrive at that letter; where was it linked from, and what was the context of the discussion or news item?

                      It is bizarre and not at all informative as a stand alone piece.

              • Avattoir says:

                Going further off that, the way I ‘read’ this is that so far, at least, Manafort & his side may well have not budged an inch in their dealings with the OSC, with Manafort thinking he might still have enough wiggle room with Trump to squirm free.

                OTOH that would reflect Manafort’s entire career attitude, as well as a not-unreasonable take on how mercurial Trump can be (plus if any, um, precedent is required for unlikely rises from the ashes in a situation as bad or worse than the one in which Manafort finds himself, it’d be Ollie North, whose descent, fall & ascension all happened when Manafort was well-positioned to observe it close up.).

                Other than cooperating with Mueller, we may not see another way out for Manafort – but a number of those commenting here have observed that even that doesn’t seem to provide him any relief. Mueller may not see any way to go here but the what we all see: under-charging with a threat of more to come – but, assuming he’s already in way over his head with seriously dangerous Rus interests, is it even possible that any further burden Mueller might be able to impose might pose a pickle barrel worse than the one he’s already in?

                • Trip says:

                  It may not be his barrel that is of concern, but rather whether the jar was opened… “the guy who gave you your biggest black caviar jar.”

                  Manafort, supposedly in serious debt, goes and works for the Trump campaign for free, as if he didn’t have a financial worry in the world. That is curious, isn’t it?

                  And now he is being sued, along with those criminal charges. The suit could be a ‘message’, or an honest attempt to recoup funds before the US gov’t confiscates it all.  Hmmm

                  https://www.theatlantic.com/politics/archive/2017/10/emails-suggest-manafort-sought-approval-from-putin-ally-deripaska/541677/

                • bmaz says:

                  Avatoir – Yes, because Mueller already could easily have charged Manafort’s wife Kathleen on money laundering right aside Paul. She has clear criminal exposure. So, it is not just additional leverage on Paul, it is placing Kathleen in the lurch too.

  3. Rugger9 says:

    Note also that this is why the Steele Dossier talk is being beaten as hard as it has been, to distract attention away from Russiagate, which now has another non-Dossier source for Mueller (Estonia).

    https://www.dailykos.com/stories/2018/1/19/1734267/-It-Wasn-t-Steele-s-Dossier-That-Sicced-the-FBI-on-Russiagate-It-Was-Teabeamet

    With all of this shutdown stuff swirling around, is it possible that Mueller’s investigation gets cut off under sequestration and/or the shutdown rules?  This is in addition to the questions I haven’t seen answered yet whether the HSPCI can grant immunity with the idea that Mueller will not be able to leverage witnesses as a consequence.  I’ll observe that Hicks wasn’t able to be interviewed today as planned (each side blaming the other, but who really believes the palace but the Deplorables).

    I’d also add Flynn to the list.  As I noted on another thread, Paul (and I forgot Gates then) is in a bad position between the rock (Mueller, who already has one plea deal), the hard place (the Kaiser and his toadies) and Putin (who has a nasty habit of liquidating enemies and other inconvenient people) plus any other mob types associated with the latter two.  I see no way that Manafort or Gates can mollify Putin since Vlad will want revenge for blowing the operation, and so they might be safer in custody.

    Let us also remember that Mueller has the transition emails, probably has NSA / CIA / FBI intercepts of foreign national and mob communications (at least), prior testimony from witnesses and bank records, etc., and whatever was said to Papadopoulos (at least) on a wire over a period of months, on top of the already public record of statements, tweets, book revelations, etc. from the Kaiser’s palace.  The circus of Bannon’s lawyer coordinating with the palace ties it in to the Kaiser.

    It’s a lot of stuff that Mueller knows already and much of it is quite illegal (like the laundering and conspiracy beefs that could also be unpardonable state charges) so if any of the Kaiser’s minions think they can talk or bluff their way out of trouble I think that ship has sailed.  It’s a question now of what they will give up to minimize the legal consequences for themselves and I do not see too many true believers willing to go to jail for the Kaiser.

    The first one to roll over gets the best deal.

    • Avattoir says:

      This came up in the comments thread to an earlier post. Funding of the OSC is independent of the shutdown – until the OSC runs out of money, at least, but that could be, we don’t know, but 6 months from now? possibly months longer.

  4. earlofhuntingdon says:

    News to McConnell and Ryan, the American people do understand who shut down the USG: Donald Trump. Americans do want long term solutions. But you hold them hostage to racist, nativist demands from a minority of a minority, and from a middling staffer, a “former” general and an empty hat president.

    News to CNN, this is not about protecting immigrants above the American military. One, our service men and women ™ are exempted from the government shutdown. They’re being paid. Two, politics is about deals, and using leverage when it’s available. Trump and the GOP do it all the time. The Dems would be foolish to take Wimpy’s deal, give Trump his legislative hamburger today in hopes that he would pay for it via suitable legislation on Tuesday. Trump has broken more deals than the Bureau of Indian Affairs. Cash at closing is the only way to deal with Trump.

    The only thing I agree with Chuck Schumer on is that Donald Trump can’t accept Yes. Trump willingly screwed his own party and the country, walking away from more than one deal his party and the Dems had agreed to. Even one that gave him his Berlin Wall on the Rio Grande. This is all on Trump.

    • Trip says:

      Aren’t some of the DACA recipients also members of the military? They’re good enough to die for the country, but not good enough for distinct and separate consideration for staying in the country. The cynical genuflecting to the military troops and flag is the card that is always rolled out, replete with ‘sincere sentimental sympathetic face’ and speech.

        • Trip says:

          Still, if it’s only treating military members as numbers or fractions, that’s pretty telling. This (insert) number doesn’t matter, in other words. Calling any number of military personnel inconsequential diminishes the humanity of all of them. That’s why the “support our military troops” trope is so very cynical, out of the mouths of pols.

          We all know concern about the budget isn’t about taking care of any of those people, whether 900, less, more or all of them. That budget is really about arms, contracts and corporations.

          I watched a clip of a pol making it completely about the soldiers. What a disingenous piece of tripe.

    • earlofhuntingdon says:

      If McConnell and Ryan have stopped negotiating with the Dems on what compromises might allow both sides to agree a deal, it’s because they have no idea what Trump would agree to.  Trump doesn’t know either.  Why bother and embarrass themselves, and, incidentally, Trump, by having proposal after proposal tossed because Trump never reads his briefings, never reads their summaries.  He doesn’t know what he wants until Miller and Kelly tell him, “No, Sir.  You don’t want that deal.”

      The NYT and its new leadership lay it all on the Dems, as if the Times were nominating itself to replace Sarah Sanders.  The WaPo’s leder writers say flat out that “negotiating” with Trump is like trying to negotiate with Jell-O.  To adjust their metaphor, it’s like trying to pick up Jell-O with a single chopstick.  You can poke holes in it, but you can’t eat it.  The Dems ought to learn better skills at pointing that out.  Simply appearing reasonable, without more, is asking to be gelded.

      • bell says:

        i think you  are wrong with your characterizations of trump..  and, i think the saying is ”getting a commitment from (trump, or fill in the blank here ) is like trying to nail jello to the wall’…  thats how i’ve heard it expressed.. at any rate, trump is unpredictable and mostly off script,  but that doesn’t mean he doesn’t have a game plan… i think many people underestimate trumps intelligence and at their own peril… apparently everybody knew how things would play out prior to trump getting elected too.. now many more realize he’s a maverick not easily categorized or defined..

    • earlofhuntingdon says:

      I mispoke about paying our service men and women ™.  It seems that Congress has exempted their employers – and presumably any ops – but refused to fund paychecks for them, despite a Democratic Party request to do so.  The worst of both worlds.

      Donald Trump must believe that B School crap about disruptive or destructive change.  News flash: it’s just destruction.  That some survive it – as some mammals but not most dinosaurs survived and prospered after the last big asteroid impact – and do well in spite of it, does not make the destruction beneficial, only incomplete.

      As for Trump’s Shutdown being a “nice present” from the Dems to the Don on his anniversary, it proves once again that governance, like business, is all about him, doesn’t it?

  5. Bay State Librul says:

    The work continues. God bless Robert, et. al.
    “Jimmy Breslin … leveled the powerful and elevated the powerless with brick-hard words and a jagged wit.”
    Mueller harvests the facts, uncovers the corrupt, and does so with day-to-day plodding, and respect for the law. In my opinion, he is the only one that can bring down the Con Man, that fucking liar and fat sack of shit.

    “Under a contingency plan contemplating a government shutdown, the work of Robert Mueller and his special counsel office is exempted from furloughs, as it’s funded through a “permanent indefinite appropriation.” That means many in the Department of Justice won’t report for work in the coming days and weeks — but Mueller and his team will.” New York Magazine

    • Rugger9 says:

      I’ll concur if that is how the law reads as it exists now (i.e. what contingency plan(s) are in effect?).  With the GOP one has to be sure that nothing was slipped in during the wee hours since cutting the funding is probably the easiest way to stop Mueller with minimal fingerprints.  Crisis budgeting is a favorite GOP trick, usually involving a tax cut followed by a fiscal crisis to justify the imposition of GOP-wish-list austerity.  Every state where the R’s have seized power has had this happen.

      Details about the shutdown rules are important here.

      It was McTurtle that shot down McCaskill’s fund the troops amendment.  We’ll see if the Sunday shows mention that.

  6. dalloway says:

    Mueller and his team will be on the job. But Sessions’ minions at DOJ looking for ways to kneecap the Special Counsel will be busy opening their own mail and making their own lunch reservations, and GOP House staffers trying to throw sand in Mueller’s gears will either be furloughed or working without pay. Drumpf thinks he can use the shutdown to kick Dems in the teeth. As usual, he may have it backwards.

  7. earlofhuntingdon says:

    A nice article from the Guardian on the Simpson testimony, to supplement EW’s comments.  Congress, the House’s PSCI, is supposedly interested in how the Trump Organization financed, for example, its golf clubs in Scotland and Ireland.  To the tune of about $150 million.

    The Trump Organization appears not to have had that much cash, though its undisclosed financial statements make analysis difficult.  The usual substitute is debt, but who but Deutsche Bank lends that much to a six-time bankrupt?

    The notional question for the PSCI seems to be whether the Russians provided it.  A more general question is what was the play, in that these golf clubs appear not to make any money.  Per Simpson, as quoted by the Guardian:

    “And these golf courses are just, you know, they’re sinks. They don’t actually make any money.

    “So if you’re familiar with Donald Trump’s finances and the litigation over whether he’s really a billionaire, you know, there’s good reason to believe he doesn’t have enough money to do this and that he would have had to have outside financial support for these things.”

    Clubs like that, and others in the Trump portfolio, would make nice places to launder lots of money.  A Republican-controlled PSCI can be counted on to raise the issue, bury it, then swat future questions with a Trumpian “asked and answered”.  (Inapposite jargon borrowed from the rules of evidence.)

    Mr. Mueller, however, who probably has Trump Organization tax filings and other information not available to Simpson, might pursue the issues with more zeal.  It would be tantalizing to know how much, if any, the Trump Organization is involved in money laundering.  All of it?  Will Trump give us an American House of Cards 2.0?

  8. Rapier says:

    I would think that Muller must consider the needs in the public relations aspects of his investigation.  Or is he another Comey, always seeing himself as above the fray.  Which in this case means following totally conventional prosecutorial procedures, as in delaying additional charges.  Never taking into account that this case has produced a powerful political opposition to its very existence.  But no matter to him, it will simply be by the book?

    I ask because charges of money laundering and other aspects that have nothing to do with the dossier now would be the very best method of  thwarting the cynical  fetishization of the dossier.  I am just suggesting that the additional leverage given by delaying additional charges or charging others now not later, might be worth it because face it; there is a political aspect of this thing that will determine the outcome as much or more than courts do.

     

     

  9. earlofhuntingdon says:

    Not to worry.  Mueller will have far more on his plate, and will be busier with many more things, than the Steele dossier.  He will have assessed it thoroughly, in order to deal with defense attacks on it in the event there is a prosecution.  But for him, the dossier will be a sideshow, unlike its utility for the press and punditocracy.

    Mueller will be consumed with traditional process, enhanced by the knowledge that those who might be swept up in his investigation could include the most powerful people in the political world.  Their defenders would be among the most powerful people in law, business, politics and journalism.  This is Olympian stuff.  Lives and futures would be on the line.  Plus a chunk of the American political system.

    Mueller’s team would identify the universe of probable crimes, identify those still prosecutable, then pick the most serious charges for which the evidence is overwhelming and the hardest to refute.

    Part of what Mueller’s team would also do is craft a good story.  He has to justify to a jury, the press and the American public why he chose to prosecute.  He needs to make it easy for a jury to understand and come to a decision on.  In simplest terms, there would be a crime, a criminal, a victim, and harm.  Harm serious enough that it must be punished to restore order to the world.  The story needs to survive the onslaught of criticism and outrage that would be arrayed against it with its outline and purpose intact.  If anybody can do it – and if it needs doing – it’s Bob Mueller.

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