The Sealed Sidebar: Kevin Downing’s Attempt to Share Information on the Case in Chief Fails

As I disclosed last month, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.

Yesterday, the Manafort prosecutors sought and obtained an order sealing a sidebar discussion they had during the prosecution on Tuesday.

On August 7, 2018, the Court held a sidebar conference to address a line of questioning pursued by the defense during their cross-examination of witness Richard Gates. During the sidebar conference, substantive evidence pertaining to an ongoing investigation was revealed. The following portions of the sidebar conference transcript identifies that evidence or
reveals details about that evidence: Aug. 7, 2018 Tr. at 1399: 14-19; 1402:1-2, 14-17; 1403: 12-15.

Disclosing the identified transcript portions would reveal substantive evidence pertaining to an ongoing investigation. The government’s interest in protecting the confidentiality of its ongoing investigations is compelling and justifies sealing the limited portion of the sidebar conference at issue here. In addition, sealing will minimize any risk of prejudice from the disclosure of new information relating to that ongoing investigation.

Because all things about this trial get hyped, there was a silly report reading this as big tea leaves proving that Rick Gates is cooperating in the case in chief against Trump.

Of course he is. You don’t get to work off of this amount of money laundering just to rat out your boss!

The exchange might better be analyzed for what Manafort was probably trying to do with it.

Both sides agreed that they weren’t going to focus on the campaign, aside for the way Manafort was trading positions on an eventual Trump campaign to obtain fraudulent loans. Manafort didn’t want to talk about going from electing corrupt Russian pawn Viktor Yanukovych to electing corrupt Russian pawn Donald Trump.

So better to understand what Manafort was likely trying to achieve here — why Kevin Downing even thought he might get away with raising it.

A tactical reason is to prove that Rick Gates is a liar — which is one of the only defense approaches Manafort is taking here. So the topic is likely something Gates originally lied about and then told Mueller a different story. In the DC case, for example, we know that Gates lied to the AP about his and Manafort’s lobbying in an effort to remain on the campaign.

The strategic goal here may be far more interesting, though. I’ve argued that the entire point of taking this and the DC case to trial is to inflict as much damage on the Mueller investigation as possible, to make two futile attempts to suppress evidence seized in his condo (including those 8 iPods I obsess about), and to learn and share as much information about the larger investigation. I’m sure something like that was the expectation set when Trump discussed pardoning Manafort. He does damage to the Russian conspiracy case and Trump will pay him off — assuming he can be trusted — by pardoning him after this all blows over.

Mueller would have had to give Manafort everything Gates had said to prosecutors before he testified, meaning they’d learn a good deal about the case in chief. But information in the case in chief would be protected from release.

So, in the guise of asking Gates something about which his testimony to Mueller may have changed over time, Downing was likely trying to make public information that would be of use to Manafort’s co-conspirators in the case in chief.

It didn’t work.

129 replies
    • Avattoir says:

      Only true.

      Also true: The system (somehow) manages to (at least seem to) survive this.

      Indeed, one of the (comforting? distressing?) features of the suffocating media blanket coverage of this Manafort Trial #1 is that it turns out your IAAL crowd is in unseemly revel over the opportunity to show up on cable TV newz shows, in big news media articles, around the Twitterverse and at points both known and unknown here on Webworld, to explain that Ellis is so Not Unique in his nuttiness, he’s actually recognized as a freaking TYPE, and treated accordingly.


      Corollary observation: Now we’re getting reports of what, in typical jury trials, happens a LOT. To the sailing analogies:

      – stowaways get discovered; or it turns out that that supposedly Fijian cannibal harpoonist who signed on late isn’t actually speaking with a central Pacific some much as central Ural accent; or some other “security” issue (There’s always something, real, or imagined, or both.);

      – some of the seals in the hull of every case who sails in this courthouse’s water are being writ up in the ship’s log as having popped seals, to where now the ship is increasingly occupied in a cultural exchange of the bilge water in its own ballast with the nasty biosphere of its dockage waters;

      – this or that juror has mentioned to one of her / his fellow jurors that Baby Jesus or his / her late uncle Norb speaking from the Great Beyond is filling her / his head with nothing but thoughts of ‘acquit’ / ‘convict’, or else he / she shall burn forever in eternal Hellfire, but it should all turn out okay so long as Judge Ellis releases us early so I can see my shrink for a refill of my anti-psychosis meds.


      This sort of real life crap happens so often in jury trials, it’s like to reach the second Friday of a jury trial is to be present for when the trial’s Pandora’s Box gets opened.

        • Avattoir says:

          Understand, I wasn’t just going for the cheap laughs – this sort of crap happens a LOT!

          Just a few jury trials back for me, in the break right after the attorneys had given the jury our closing arguments and before the judge was to educate them on The Law, one of the security staff taking care of the jury delivered a note to the judge that attached a letter from one juror’s doctor asking the juror be excused from jury duty due to the then-potential juror being treated for a list of Standard Diagnostic Manual Axis 1 issues that would keep a clinical studies program busy for a decade. The problem was that the juror for some reason BELIEVED serving on the jury would help in therapy, so deliberately chose against producing the doctor’s letter to anyone in the court case.

          And this sort of occurrence isn’t really all that unusual with jury trials.

          • Doctor My Eyes says:

            I hope you’re keeping a copy of your delightful, literary, astute, informative remarks here.  Your book can be a breezy cut and paste job.

          • Trip says:

            I’m telling you, I would read this book.

            It was still a humorous anecdote about the “ghost” telling the juror how to decide.

            one juror’s doctor asking the juror be excused from jury duty due to the then-potential juror being treated for a list of Standard Diagnostic Manual Axis 1 issues…

            How was that particular juror chosen? I mean, how did they hold it together long enough to be chosen, sit through the trial and not be excluded before? You’d think there might’ve been some signs.
            (adding: this might be kind of a stupid question in light of Trump being elected as president, but then again, Vlad).

            • Avattoir says:

              You think I’m the only criminal law trial attorney where this shit happens? Ask bmaz: we ALL got True Stories like this.

                • Avattoir says:

                  I might go for this: If Trump-Pence get their Space Force, there’s gonna be a need for a Space Force JAG unit, right? I mean, considering the program’s initial proponents are historic JAG-offs, I don’t think it’s at all unreasonable to expect the entire program to be rife with JAG-offs in record time for new service.

                  So, I might well wish to consider a joint bid with bmaz to Space Force Command to set up and run their JAG unit. That promises to be not just enormously nutty, but lucrative beyond imagining.

                  (Who was it who wrote: ‘In Space, no one can hear you screaming your oath.’?)

      • Bob Conyers says:

        The crazy judge story I remember best is about William Beer, a Michigan judge.

        He was notorious for an eccentric style in his courtroom and for his bias against women in divorce and sexual assault cases. He refused to pay taxes because he claimed the Constitution exempted judges, and owed the IRS $40,000.

        He was finally forced off the bench after it was publically revealed that for decades he had two houses, two wives, and two sets of kids.

        This article describes him (it’s a bit hard to read because you have to scroll way down to find it).

        • Avattoir says:

          That ‘2 families’ thing was a common phenomenon when I first showed up in the courts. One of my closest Law School classmates clerked with an incredibly successful D-heavy firm that specialized in real estate development financing. The firm’s practice grew so lucrative so fast, they soon became playahs on the political scene. One of the primo partners got nom’d for a federal court gig, sailed thru it effortlessly.

          But times change and spotlights are more intense for higher ups: within a year, the judge ‘mysteriously’ resigned. Rumor (soon confirmed) was he’d led a QUADRUPLE life: his mistress came to feel newly vulnerable – not about official wife 1, they all knew about each other, but about her new position between secret wife 2 and new Court clerk girlfriend – so was feeding lurid (yet true) stories to a local tabloid.

          Then former classmate informed me almost all the partners in that firm led double (or more!) family lives. They were all products of the Mad Men era, for whom it was a common thing in the professions as well as in business, and crossed political identities.

          By 1980, that generation had mostly all retired or been replaced & the phenomeon seemed largely a thing of the past.

          But I’m not sure that’s actually the case: I’ve lived ^ worked my whole life and career mostly working within the lefty lane of a largely retro traffic complex – a third or more of which is made up of dedicated life-long MAGAs: “conservative” largely Nixon & Reagan type Republican institutionists. Federalist Society once-cranks-now-main stream-power-playas, even Birchers – MANY of whom sit on the federal bench and have done for years or decades.

          And there’s LOTS of seriously compromised lives in that retrograde crowd.

            • Avattoir says:

              Well, you jest. But for that generation, I’m thinking it had more to do with the gross inequality in numbers, especially in certain parts of the country between single women OTOH and live men of any circumstances who could support more than one family – plus, of course, all that time was BEFORE the pill (or any other safe effective form of birth control).

  1. John Forde says:

    What preceded the sidebar? Can you speculate about what is under seal based on that? IPods, IPods, IPods???!!!

    • bmaz says:

      No. This is almost surely being WAY overhyped. FAR more likely is that it just got into an area where OSC did not want to go (and that the parties, with defense enthusiastic about doing so, agreed to not delve into). Don’t over analyze this crap.

      • Avattoir says:

        The truth is, of course, that whenever these things crop up, we in the IAAL crowd don’t actually know any more than those in the IANAL crowd – but we still have fun / scary fireside war  stories to draw on to comfort / freak out the IANAL crowd.

        • RossK says:

          As per bmaz’ response – from CNN’s hype-piece:
          …The still-secret conversation occurred Tuesday afternoon in the middle of Gates’ testimony against Manafort, who served as Trump’s campaign chairman in 2016. 
          Defense attorney Kevin Downing had asked Gates, “Were you interviewed on several occasions about your time at the Trump campaign?”
          Prosecutor Greg Andres objected to the question before Gates could answer….

          • Avattoir says:

            That doesn’t even start to explain the bulk of the delay this morning. Something – or things – else came up.

          • Valley girl says:

            It was a dark and stormy night.  I was just at the edge of Sherwood Forest.  Something or someone stirred, quite close to me…..

              • Valley girl says:

                LOL!  I’ll have to think about it, because you asked. One of my friends (alas gone) was a successful writer of historical adventure romances.  Of course I read them all.

                A French friend of mine, in our first conversation, said she was living in the US because her husband had captured her.  Captured her heart, she meant. A different thing. So I emailed her with this:

                “I was stranded on the moors.  It was a dark and stormy night.  Suddenly, a man on horseback appeared, coming towards me at full gallop.  And then he captured me.  He swept me up and threw me onto his horse, still at full gallop….”  “Little did I know then that……”
                If I can combine those two “dark and story nights” I’m on my way I’m on my way to my first novel. ;)

    • Palli says:

      from the previous thread:pseudonymous in ncsays:
      August 9, 2018 at 11:00 pm 

      The filing to seal part of the transcript of the sidebar conference on Tuesday is interesting, but I also think it shows a degree of savvy by the prosecutors in limiting references to the campaign, something that Downing eagerly accepted. The line of questioning was about Gates’s conversations with the special counsel’s office about his time on the campaign, and after the sidebar, it wasn’t resumed.

  2. Peterr says:

    Emphasis added, from the post:

    He [Manafort] does damage to the Russian conspiracy case and Trump will pay him off — assuming he can be trusted — by pardoning him after this all blows over.

    Objection! Assumes facts not in evidence.

    Not that Manafort had many other, better options. In fact, the only other option was to flip on both Trump AND the Russians, and assume that Mueller would have ways of protecting him from both. If Trump was the only danger to Manafort, I think he might have taken that deal. The Russian threat, however, changed that dynamic a great deal.

    Can you say “Skripal”? Sure you can.

    In 2010, Skripal was part of a spy swap between Russia and the West. After almost 8 years, he was the target of a Russian assassination plot, which struck many wiser heads than mine as odd. Why 8 years later was he deemed worth killing? Why use a method guaranteed to make the world immediately look to Moscow as the perpetrator?

    That second question can only be answered in one way: Moscow wants to send someone a very strong message. Generally speaking, the speculation has been that it was aimed at other double agents or current FSB/GRU operatives who might be considering becoming double agents. “Screw us over, and you will never know a good night’s sleep. We will find you, we will watch you, and when we want to do so, we will kill you.”

    Hmmmm . . .

    In August and September 2017, media stories began circulating about Mueller’s strong interest in Manafort, including various Manafort-related people subpoenaed to talk to the grand jury, Mueller speaking with Schneiderman about financial investigations, and news accounts of FISA warrants being used to watch Manafort. If the Russians were not already worried about Manafort talking, this surely would have gotten their attention.

    To deal with these developments, I could easily imagine the Russians taking two carrot-and-stick steps. First, the carrot: get word to Trump to do whatever he could and promise whatever is necessary to keep Manafort on Team Trump. Second, the stick: order the assassination of Skripal in a manner that ensures that Manafort (among others) would know just how dim a view Moscow takes of those who change sides, and how far Moscow will go to express their displeasure with such folks.

    But let’s take this one step further. If Russia is this concerned about keeping Manafort quiet, and Manafort goes through this whole trial and is found guilty without flipping sides, the last thing Russia would want is for Trump to screw Manafort over by not pardoning him because it would be too politically difficult. Even if Manafort doesn’t trust Trump, perhaps he trusts the Russians to lean on Trump to keep his end of the bargain.

    Hmmm . . .

    Objection withdrawn.

    • earlofhuntingdon says:

      Assumes facts not in evidence.  The Skripal story, whatever it is, has not been credibly explained.  Nor has the follow-on incident, both allegedly involving a toxin that seems to do none of the things it is supposed to do, such as kill quickly or disable permanently.

      There are a dozen or more credible examples of Russian assassinations that make your point.  Manafort has a lot more to worry about than pissing off Mueller or Trump.  With Manafort and Trump they have a basic problem, both are sociopaths not given to feeling empathy about the fate of anyone but themselves.

      Manafort would be physically easier to get at than Trump, in jail or out of it.  With Trump, the Russians probably have the goods to topple his empire and send him to jail.

      • earlofhuntingdon says:

        Gates does seem to care about other human beings, at least his family.  Not being as dirty as Manafort – Gates was an underboss, not a boss – and perhaps not knowing as many secrets, maybe he thinks that cooperating is the least worst option or that Mueller can protect him.  He wouldn’t spend much time on it if Gates didn’t have a lot to deliver.

        Manafort would also know that, like ship captains and mob bossses, everything that his people do is his responsibility.  So, it all comes back to Paulie.  By the same token, it comes back to the Don.

  3. William Gross says:

    I can’t wait to see a judge that really cares about getting justice for the American people and holding ALL THESE CROOKS ACCOUNTABLE

    • Drew says:

      Makes me think about a difference between Watergate and now. From 1933 to 1974, Democrats held the presidency except for 8 years of Ike and 6 years of Nixon. (really less than 6 years). And, at least with Eisenhower, the idea of a partisan judiciary wasn’t so much on the table, & Kennedy & Johnson’s picks for judgeships normally went through. (correct me if I’m wrong on that.) Now, both during the GW Bush admin & Trump the appointees have been increasingly partisan (now especially with right wing idiots getting federal judgeships because they can’t hold a job as a lawyer anywhere else)

      So it would seem that there is less protection from the judiciary than there was during Watergate.

      • Tracy Lynn says:

        *six years of Nixon* really should be six years of Nixon and approximately two years of Gerald Ford’s presidency, fwiw.

  4. bmaz says:

    The strategic goal here may be far more interesting, though. I’ve argued that the entire point of taking this and the DC case to trial is to inflict as much damage on the Mueller investigation as possible, to make two futile attempts to suppress evidence seized in his condo (including those 8 iPods I obsess about), and to learn as much information about the larger investigation.

    Well, that has not worked out so well for all the contretemps of Ellis. Fail.

  5. earlofhuntingdon says:

    Manafort didn’t want to talk about going from electing corrupt Russian pawn Viktor Yanukovych to electing corrupt Russian pawn Donald Trump.

    Are you saying Paulie was placed in the Trump campaign – and didn’t charge Donald for it, another offer the Don couldn’t refuse – because he had the most relevant experience, plus he was head over heels in debt?  OMG!



  6. pseudonymous in nc says:

    Downing was being too cute: you can’t make a fuss in the pre-trial hearings about limiting discussion of the campaign and then try to bring it up. Ellis seems to remember that.

    Anyway, reports from this morning are vague, but they seem to involve sidebars including the court’s security officer, a warning against peeking at documents belonging to counsel, and a more emphatic instruction to the jury not to discuss the case or do their own investigations. I wasn’t joking when I talked about the risk of jury tampering.

    • SpaceLifeForm says:

      By my count, this is the fourth Ellis incident.

      Ellis: [the government] “might want to spend time on a loan that was granted.”

      This, according to a curative instruction for the jury filed by the special counsel’s team Friday morning, “misrepresents the law regarding bank fraud conspiracy, improperly conveys the court’s opinion of the facts and it is likely to confuse and mislead the jury.”

      [So, nothing really happened this am wrt to normal proceedings. Ellis says he has matters to attend to until afternoon]

      [Yeah, sure he does. Awaiting instructions? Realizing he has really screwed up and trying to decide what to do?]

  7. RWood says:

    Manafort trial number one will be over soon and I find myself going back to the ever shrinking timeline.

    Harry Litman at WaPo penned a piece that declared its “time for the subpoena”. I’m casting aside the 60-day unwritten rule and wondering if he’s right. Obviously Drump and Co. will contest and this will slowly make its way to SCOTUS.

    My question is; how long will that take? As of today we have 88 days until Nov 6th. Will the court rule before or after that date? Should Mueller send the subpoena and continue building his case while its being processed, or wait?

    • earlofhuntingdon says:

      Mueller’s investigation is already proceeding at a faster pace than earlier such investigations.  No one currently in Mueller’s probable line of sight is up for re-election this cycle.  That includes Trump.  This November’s election is irrelevant to him, other than raising the possibility that it changes the majority in the House or Senate, which ought to make his job easier.

      Litman’s opinion piece is well-meant, but I think it’s a distraction. It is useful to rally the troops and to make clear how often and how consistently this administration is trying to obstruct Bob Mueller from doing his job. But Trump is the one who depends on theatricality to keep his job, not Mueller.

      • Bob Conyers says:

        I agree that Litman’s piece doesn’t mean much.
        I’m pretty sure others here have argued that at this point, Mueller has written off needing to get Trump to submit to an interview. Giuliani is just milking willfully gullible reporters like Haberman for some PR points.

    • Pete says:

      @RWood and @earlofhuntingdon

      Perhaps there is a horse race between a Trump subpoena and clearing Kavanaugh for SCOTUS.  I’d like to think a subpoena might delay a confirmation of Kavanaugh.

      And if both happen and run out the clock to the November general and the swing in the House (at least) and maybe Senate….getting carried away though I am neither Republican nor Democrat.

    • bmaz says:

      There is NO fucking 60 day rule. Please. There is a  certain PIN protocol that militates in favor of not announcing investigations or indictments on election candidates in the time period immediately before an election

      NONE of that applies here. And the insinuation that it does is asinine.

      I have been saying that forever. Are you new here?

      By your history, you do not look that new here. So, what are you doing?

      • RWood says:

        Hey Bmaz,

        I’m assuming your remark is aimed at me. I’ve been agreeing with you that the 60 day rule doesn’t/shouldn’t apply to the Mueller investigation for some time, yet I keep seeing it mentioned on various news outlets, so I have to wonder if the people involved feel it does or not based on their own bias. Can someone use it as an excuse to delay the case? Can SCOTUS use it as an excuse to hold their ruling on Drumps subpoena until after Nov 6th? Will those trying to obstruct Mueller start using the “60 day rule” on September 6th as a wedge issue?

        I don’t know, so I ask. If its an asinine question I apologize. Not my first one by a long shot and not asked in an effort to stir the pot here. I’ve found this forum to be invaluable these last few years, mostly for education purposes.

        • bmaz says:

          No, was not aimed at you at all, I keep seeing this stuff everywhere!

          I have no clue what Mueller will do. What I do know is that he is not so constrained as Rudy, Sekulow and all the dopes in the media let on. That I have extreme confidence in.

    • david sanger says:

      There’s also the possibility that after the Manafort verdict that Mueller will drop additional indictments, Stone? Page? Lewandowski?

      or SDBY indicts Cohen….

  8. RWood says:

    Strongly agree with all you said, especially the fact that Drumps theatrics are needed for him to keep his job. They also have the by-product of cementing his downfall. I picture Mueller snatching those tweets out of the air with a smile and placing them directly into the evidence box.

    I realize there’s no past case to compare to. The closest would be Clinton. Clinton was subpoenaed on July 17th, agreed to testify voluntarily on July 29th, and spoke before the grand jury on Aug 17. That’s incredibly fast. Even if expedited, I’m assuming Drumps fight through the various courts to take several months, and certainly more than 88 days. Not a lawyer, so I’m asking if that is an accurate assumption?

    • Avattoir says:

      You yourself observe – CORRECTLY – that there’s no precedent for this any of this.

      Why do you think anyone in the IAAL crowd – who are ALL ABOUT PRECEDENT – would have any better guess?

      Trump has multiple decades of experience technically within the court system but always operating outside of it – with mixed results, but the state of the data is such that no can make any truly objective assessment as to success or failure in his acting that way.

      But NOW, he’s POTUS, and he actually THINKS he’s ‘in charge’ of everything, including the courts. So BEFORE, all we had to be concerned with in assessing Trump On Trial: The Experience was opacity. NOW what?

      • RWood says:

        I guess I “hope” more than “think” the IAAL crowd would know more than I, but with this president it really is anything goes. I’m hoping the timing is more Gore/Bush (30 days) than Prop 8 (13 years).

        Do we forecast future moves with the idea that he has good council and listens to them when it comes down to the law and how it applies to him (outside his control) or do we go with classic Drump, the idiot who disregards not only the reality of the situation, but his lawyers advice repeatedly and ends up in the department of settlement and nondisclosure? Trying to separate what Drump thinks he can do from what Drump can actually do is trying for the non-lawyers out there. (Myself included, for me Iaal is a village is Northern Ireland)

        The reason I ask about timing is that (if I understand everything correctly) removing Drump from office will ultimately come down to a political decision. IE a vote on the hill to do so. And that’s the reality whether the charge is jaywalking or murder 1 on fifth avenue, so Mueller’s actions in the next 88 days, like it or not, will have great sway on that impeachment vote via the outcome of the midterms. If so I’d vote for the Mueller hammer to start coming down harder and more frequently between now and Nov 6th.

        If I’m wrong here please feel free to hammer me into shape.

        • Avattoir says:

          Didn’t mean to come across as a hammer. This is all so, uhm, unprecedented. I mean, the only guides we have from experience are Watergate, Iran-Contra & ClenisGate, and all involved preznits who at least respected norms and responded to shame to SOME extent. With this one, tho … we got nuthin’.

          • RWood says:

            Agree with you and Bmaz above that nobody knows what Mueller will do.

            MY opinion; Mueller sees Drump much as Ike did Hitler in 44. He sees an adversary that operates within his own reality. One that orders imaginary units into battle and demands attacks with forces that were decimated months prior. Its not a hard step to the realization that negotiation, or even anything approaching civil discussion, is a fools errand. The only thing left is the blunt instrument. For Ike it was the allied army, for Drump it will be the full weight of the justice system. So I’m looking for the subpoena. If it doesn’t come soon I’ll assume Mueller doesn’t need it, and there will be scotch in my glass soon after.

            Yeah, I made a Drump/Hitler comparison. Sue me.

            Thanks for the input.

  9. Trip says:

    So…talking heads keep repeating that Trump is playing to his racist base. Correction: Trump is a racist. He isn’t simply “playing”. He’s happy to be his disgusting garbage self in public and to be able to share in the hate with like-minded bigots.  Laura Ingraham is a racist.  These are very ugly people. There isn’t nuance here. There is no splitting hairs.

    • earlofhuntingdon says:

      Can’t be said enough.  Trump is not playing to his base so much as giving voice to their common hatreds and empowering them to act them out

      Trump means it when he talks about hating people from shithole countries, whether they live in America or anywhere else, whether they came to the US 400 years ago or last week.  Unless they’re tyrants abusing their people without consequence, like Duterte and Putin, then all is forgiven.

      Trump is playing when he claims to be a populist, concerned about America’s tired, poor, hungry masses, yearning to make America great again – by working hard, paying taxes, tending to their churches and families, and quietly obeying the law. A Republican president once labeled those people the Silent Majority, and depended on their votes.

      By any standard except happiness, healthcare, jobs and education – not Trump’s concerns – America is already great.  What Trump means is make Donald Great again.

      • Trip says:

        Trump will never be and can never be genuinely happy. Nothing will ever be enough. There have to losers, so he can feel like a winner, and they have to suffer. And yet, that still wouldn’t make an empty vessel like him happy. That’s why he keeps escalating.

      • earlofhuntingdon says:

        The happiness reference was to the US, which doesn’t fare well on happiness indices compared to the Netherlands or Sweden.  Issues include work/health/life balance, jobs and job security, reliability of govt services.  Ditto on indices for quality of healthcare delivery and outcomes; jobs quality and security; and availability, quality and cost of education.

        The UK, too, has dropped considerably on such indices, owing to its following the US in its adoption of neoliberal priorities.  These notably include adopting Ivy League-level costs for once nearly-free universities, contraction of government services, stealth and open privatization of public services.

        In the UK, public services include the NHS.  Its chronic underfunding seriously pisses off lots of people, but apparently not the chattering classes, who love it.  It also includes creating a deliberately cruel and Kafkaesque environment at the Home Office on such issues as immigration and citizenship, a priority – adopted when Theresa May was Home Secretary – the UK has exported to the US.  It is creating many, execrable and self-defeating outcomes in the run-up to Brexit.

    • dg says:

      I began this reply trying to lay the blame for this state of affairs we all find ourselves in, but at the end of the day, there are too many bad actors. Having been a young adult during Watergate I couldn’t imagine the country being in a worse place and yet here we are.

      For lack of a better description, the country has gone off the rails and as you all may have acknowledged at one time or another, trump is only a symptom. There are no checks and balances. We live in a time where one party denies a President a hearing and vote on a SCOTUS nomination and the beat goes on. During Watergate the GOP did fight to protect Nixon, but at some point, namely Alexander Butterfields admission re: the tapes, men of conscience stepped up and put country first.

      Does anyone believe this crew would do the same?

      • bmaz says:

        The three principled men who went to Nixon and told him the gig was up were Barry Goldwater and John Rhodes of Arizona and Hugh Scott of Pennsylvania. There are no such people in today’s Republican party.

  10. To be continued... says:

    Man. Day after day you all amaze me with your insight and eloquence. Thank you marcy for the space and igniting each conversation. I say nothing more for fear that I say something incorrect and incur the wrath of others with greater knowledge than myself! :)


      • Lee says:

        Also ditto.  However, I also realize that I don’t know enough yet to have anything worth saying publicly, so I just want to listen for awhile longer.  Thank you Marcy for your extraordinary work in these extraordinary times.  And also thank you regular commentators.

  11. Charles says:

    Even being aware of the things Avattoir says, and even hearing similar things from other experienced lawyers [1], if I were on the jury, Ellis’ behavior would incline me to convict, especially based on the amount of evidence that has apparently been excluded. Ellis surely knew exactly which pieces of evidences would be presented, so to jump in and cit off the prosecution seems shifty. And his treatment of Andres… well, that’s purely contemptible.

    Judges behaving like bullies brings the whole justice system into disrepute. Ellis should retire.


    • Avattoir says:

      Really, I don’t disagree with you. But Manafort only needs as few as one (1) hold-out for acquittal, so an Ellis in front of 11 you’s and just one hold-out would work for him.

      Related side observation: As a government attorney, I was no big time fraud specialist, prolly didn’t prosecute even 20 case that involved either tax evasion or bank, so I’d readily defer to anyone with more experience in that. But combined with the cases I’ve DEFENDED that involved bank fraud in particular, plus a number of civil claims cases, it’s been my experience that juries do. not. like. banks.

      As a general rule with bank evidence, the higher up in a bank a witness is, the easier it is for defense to blow up that witness:

      1. a bank’s big shots tend never to deal with (or often even understand) details like loan ratios, loan compliance & collateral security;

      2. middle mgt types, who DO tend to have handle on those key concepts, tend to testify in a way that – unfortunately for the govt and happily for defendants – conflates internal corporate policy with the law, and end up causing judges to instruct juries quite stringently on the difference between what The Law provides and how irrelevant to their deliberations are much if not most bank internal policy; and

      3. the lowest level compliance clerks & staffers – typically the ONLY ones who can actually navigate the bank’s files including deciphering the friggin’ file entries and who actually checked out things and memo’d stuff – just as typically claim to be those in the bank pecking order who were who raised the alarms BUT they never actually authorized the loan extensions or had much if anything to do with negotiating the loan / debt contract terms.

      One should be able to readily imagine this as an adult version of the children’s game Telephone, and, as with the kids’ game, hilarity OFTEN ensues.

      From what I can see at this great remove, that’s pretty much what Manafort’s defense attorneys are doing with the charges their client faces of defrauding the Federal Savings Bank – and no one should be shocked if it works.

      The upshot here is that, at least in relation to the bank fraud charges, Manafort may not ‘have to’ testify, or even call any evidence in response. I’ve actually won a NUMBER of such cases on a motion to dismiss after the government’s case is all in, JUST based on the evidence the government called plus our side’s cross-examination.

      Thus, looking at all this from the standpoint of group experience among in defending bar, Manafort’s attorneys may well have been telling him for some time that the ‘real’ dilemma that confronts him with testifying or not has more, maybe everything, to do with the tax evasion charges – which in turn begs the question as to how EFFECTIVE Manafort’s attorneys have been in conflating those with Gates, i.e. turning those into a contest on whether the jury is prepared to accept Gates as having testified truthfully on those.

      Can we, at this remove, make any kind of a reasonable guess, ‘educated’ or IAAL or otherwise, as to whether they’ve succeeded in that second task, with even one (1) member of the jury?

      Jeebus, not even the attorneys directly involved in the trial can do that.

      • Skilly says:

        Excellent analysis of the pitfalls of prosecution for fraud. A Juror with preconceived notions can easily through a wrench into the best cases. I can not recall any discussion here about the jury Selection process used for this case. There are so many variations to the Federal jury selection process, that to speculate would be folly. As a prosecutor, one might want to be very careful to try to discern potential jurors who might try to nullify case based on such a basis. The ability to interview jurors to weed out potential “troublemakers” may be restricted by a judge that does the interviewing on his/her own.

        The issue of the rogue juror, whether there by placement or bad luck, depends heavily on that jurors ability to remain under the radar. I would estimate, without any real confirmation, that the jury pool was heavily scrutinized by the DOJ. If they had a hint of concern about any one or more jurors, I would hope they raised it at some point with the judge prior to the selection process. Although I do not have any experience with a “placed” juror, other than Grisham novels, one would think the odds of such a juror being selected would be too remote to risk trying.  The oddball quirky juror is far more likely. If such a juror exists in this case may yet to be seen. I would imagine these jurors are being monitored close for social media activity.

        Again, thank you for your post on this one.

      • Charles says:

        I thought the conviction rates for cases brought to trial were pretty high.  Obviously, less so when the crimes are complicated, but denying that you have overseas bank accounts when you have tens of millions in overseas bank accounts seems so far over the line that even someone from the fever swamps of the right should have no trouble spotting it. And once you agree Manafort lied once….

        • Avattoir says:

          Famous last words, San Diego Padres Edition: ‘ This morbidly obese middle-aged man playing at pitcher for the Mets by throwing junk, clowning, teasing & wearing out naive kids half to a third his age, & otherwise making everyone fall down laughing, has never hit a home run. So just throw that fat old man a meatball down the middle and we can all go home’

          Also, O.J.

          In legal beagle land, “SURE THINGS” are considered between 4:1 by the most cynical to 10:1 by the most Pollyanna-ish. There’s no such thing as Hail Marys, Miracles on whatever, or Million/Thousand/Hundred to One underdogs. A jury trial is performance art, more comparable than not to opera. IMO anyone seriously seeking to understand how juries think is well-advised to start by appreciating there are limits to logic and rationality, which limits can be better understood by studying Campbell on Story, Jung on Archetypes, and Kahneman on the roles of bias and expectation on how we think.

          I have this vivid memory of the first time I ran into a highly rational juror: ex-Marine, 2 college degrees, former golf teaching pro, by the time he was picked for this jury on a case of murther most foul in the context of a pissing contest between inner city gangs he was at least part owner in a resort complex. Ultra organized, laser-focused, made it a special point to make an appointment at our offices weeks after the trial to make it known he’d been instrumental in Bringing In The Verdict.

          I mean, he was every prosecutor’s dream jury foreman, and for all the years I continued to prosecute, I was on high alert looking to snarf one of these self-motivated high achievers for my jury.

          And right from the first jury trial I defend after that, and ever since, I’ve made it Priority One to keep that dude from ever getting near my jury.

          • Charles says:

            Well, sure, the only done deal is a done deal, and then only post-cooling and -curing. But I’m speaking as a general rule, it seems to me (after looking at somewhat dated DoJ statistics) that prosecutors only bring high-level white collar cases that they believe they have about an 80%-plus chance of winning.


            I’m more worried about rat-f**king in the appeals and pardons process, not to mention Andrew Miller-style rewrites to history.

        • dg says:

          The conviction rates are so high because most people charged with fraud enter into plea deals because they can’t afford to go to trial. If there’s any serious money involved there’s bail and then a stiff retainer, then depending on the accused’s financial position more costs, then the attorneys begin lowering your expectation as the well begins to dry. By then you’re primed to take a plea. The scales of justice are not equal. That being said, if you have the resources, you have a very good chance to prevail. OJ Simpson’s first trial demonstrated the value of a great legal team despite fairly certain guilt.

          • bmaz says:

            Meh, in federal court, the conviction rates are so high because the government has solid cases and most defendants are, in fact, guilty.

          • Frank Probst says:

            I would have let OJ off.  You cannot have your lead detective commit perjury during testimony on a question of racial bias and not have reasonable doubt.  (As a geneticist, it didn’t help that their expert in genetics made an error that should have been caught by any 2nd year genetics grad student.)

            • bmaz says:

              Yeah, people forget just how bad Barry Scheck ate the prosecution’s DNA experts alive. Between that and the providence and chain of custody issues of the blood evidence, it was pretty brutal.

          • Charles says:

            Here are some slightly dated statistics:
            “About 88% of 1,420 adjudicated [money laundering as a primary offense] defendants were convicted.
            Of the 1,243 convicted defendants, 91% had pleaded guilty, and 9% were found guilty at trial.

            Of the 177 cases that did not result in a conviction,
            most (82%) were dismissed.”

            So, roughly 112 people were found guilty at trial. 177 cases were dismissed. While this doesn’t give an exact number for how many went to trial and were not dismissed, pled or pled down during trial or received deferred adjudication, it does suggest that the conviction rate is pretty good. I also think one has to consider the Manafort case as one in which the decision by the defendant to go to trial was based on a belief he would be pardoned. In other cases that go to trial, defendant may believe that evidence is tainted and that the case will be thrown out for reasons other than guilt or innocence. That’s not operative in US v. Manafort. The guy is plainly guilty of a number of crimes.

            I’m willing to be persuaded by evidence better than I have at hand. But the high rate of plea deals is because, as bmaz says, defendants know they have no chance at trial.

  12. SpaceLifeForm says:

    Delay, delay, delay.

    Ellis says early lunch break until 13:45 ET.
    Actual resumption almost 14:30 ET.
    But there was another interesting delay before he called for lunch recess.

    So, after this mornings delays, and yuge overrun lunch break, in Caesar Ellis court (or by elevators) we can find some interesting ‘stuff’.

    Ellis then called lawyers back for a second conference. This time, everyone from Manafort’s team joined the huddle, leaving the defendant by himself at his table to scribble notes as a deputy U.S. marshal sitting behind him kept watch. The judge then took the unusual step of calling the courtroom security officer over to participate — that move fueled speculation about a jury-related issue since that official is in charge of logistics issues involving the jurors.

    The conference broke after a short discussion and Ellis announced he needed to recess for about 15 minutes “to consider an issue.” Oddly, he exited the courtroom through a door opposite his own chambers and in the direction of the jury room. The court’s stenographer followed.

    [Reviewing transcript that Ellis tried to blow off yesterday?]

    This wait lasted longer than Ellis predicted — about 45 minutes — and when the judge returned, he summoned in the jury, took attendance and told them the court would be going back out for the early lunch break. As he has [said] repeatedly throughout the trial, Ellis then delivered multiple warnings about not discussing the case with anyone, even among themselves and added: “Keep an open mind until all the evidence is in.”

    As the courtroom emptied and prosecutors carrying all of their materials waited for the elevators, reporters asked Mueller lawyer Uzo Asonye for an update and also whether he could say what was in his cardboard box.

    “I could,” Asonye said as an FBI agent loomed to his side, “but I’d have to kill you.”

    • SpaceLifeForm says:

      Wondering if a juror revealed Ellis taint to an outside party (post judges instructions to ignore) and will be booted next week. Alternatively, someone figured out a juror, and baited/phished for info. Still have 4 alternate jurors.

  13. getouttahere says:

    As many have noted before, there are many like Ellis on the federal bench. (Though nothing like the state courts.) These are people with serious personality / psychological issues who have been given very powerful positions. They routinely fuck litigants up and ruin lives and make lawyers miserable. The power of their lifetime appointments just feeds their nuttiness/ perniciousness/twistedness, etc.
    A favorite from the lower state courts, circa late 60’s in California: A justice of the peace was finally removed from office: among his many un-judge-like actions, he determined guilt or innocence by “smelling the defendants.”

  14. earlofhuntingdon says:

    If Chuck Todd were a food, he would be a corn dog.  As it is, he’s the epitome of an empty suit, seeking to make the day’s news light and digestible.  Given how little he seems to know about it, he must have the easiest job in the media.

    Why is it no surprise that Chuck got his start in journalism – having left GW without a degree – from Tim Russert.  If Russert were George H.W. Bush, that would make Chuck Todd Dan Quayle, without the bank account.

    • SpaceLifeForm says:

      Do not see much of note. The money transactions were trump change. He was diehard gop, and may have been manipulated in his older age. Why FinCEN was notified about his transactions (small) is interesting. It may have been more about who he was dealing with that led the bank(s) to do the SARs.

    • Trip says:

      What I find interesting (if true) is that investigators are trying to find out if there was a connection between Smith and Flynn in this operation. That makes me question Flynn’s cooperation. Or it implies that investigators don’t trust Flynn’s cooperation. I’ve always found the entire Smith WSJ confessional and then soon after suicide truly bizarre.

  15. William Brown says:

    “I’ve argued that the entire point of taking this and the DC case to trial is to inflict as much damage on the Mueller investigation as possible, to make two futile attempts to suppress evidence seized in his condo (including those 8 iPods I obsess about), and to learn and share as much information about the larger investigation.”

    I think this needs an “as possible” at the end.

  16. Trip says:

    @Marcy, you linked to this on twitter:

    Mulvaney Looks to Weaken Oversight of Military Lending

    The crux of the article is about abuse, unfair interest rates and whatnot, but I have to wonder if it has anything to do with the Manafort loan from Calk. After articles surfaced about the Kremlin funneling money into the NRA, the treasury Dept changed rules to hide dark money:

    Now we have the Manafort trial and the large loan from Calk’s bank, which primarily served military members (ostensibly in exchange for a gov’t position/quid pro quo).

    Chicago banker who loaned Paul Manafort millions summoned to talk to Manhattan D.A.
    Calk’s bank, with $342 million in assets, focuses on loans for military members, veterans and first-time home buyers, according to its website.

    I have a difficult time believing in coincidences with this administration. They seem to alter policy to cover their asses once bad deeds are revealed publicly.


    • Bardi says:

       They seem to alter policy to cover their asses once bad deeds are revealed publicly.

      There is no “seem” about it.

  17. Trip says:

    Omarosa is the PERFECT, most fitting horrible person to write a book on Trump. I can’t stand the woman, but let’s face it, she is famous for the same reasons as Trump. And if she smears him and the spawn with some lies, how apropos is that, based on what Trump does to others?

    I look forward to Omarosa making the rounds, pissing off Huckster-b and Trump. Sarah Huckster-b Sanders calling Omarosa a liar is so rich. I likely won’t pay any attention, but the twit-in-chief will. It may not be a beautiful chocolate cake, but hopefully Omarosa dishes some just desserts.

    • Bob Conyers says:

      Sorry to disagree, but I would be very surprised if this worth more than a bucket of warm spit.

      I think this a game and will be filled with nothing but play acting. Trump pretending to feel betrayed, O acting as a heavily scripted heel, and a makeup session when they both want the headlines.

      The Stormy Daniels saga has veered at times into distraction territory, but I think there have been valid points covered as well. This is going to be nothing but a bonus for Trump, probably scripted with his help.

        • Bob Conyers says:

          Of course I wouldn’t rule out O accidentally revealing something damaging, just that it would probably turn out to be something mundane that she got on tape that inadvertently blows up an alibi.

  18. Frank Probst says:

    How often is it that prosecutors file motions during a trial asking a judge to correct himself?  I’d never heard of this before, but I assume it happens every so often for genuine mistake.  But filing motions two days in a row seems odd to me.  Is this normal?

    • Kick the darkness says:

      I’ve kind of been wondering the same thing.  And yesterday’s proceedings, which the media describe as mysterious and highly unusual.  Are they really that atypical, or is it just more click bait?

      • bmaz says:

        As to motions, not unheard of, but usually just done orally outside of presence of jury. I think here, they wanted a formal record because Ellis is so goofy.

        As to “mystery”, there is no way to know for sure, but may well be hyperventilating. It was a Friday afternoon after two weeks of cram filled trial. May just have been an opportunity to give a little break. That is pretty common when trials go all week through a Friday. Many trial courts don’t even do trial days on Fridays at all. Could have been a pause to prepare for argument on closing instructions. Could be lots of things. We just don’t know. But it does not necessarily imply anything mysterious or unusual.

        • Frank Probst says:

          As someone who was an alternate juror on a four week murder trial, my guess is that Friday was the result of a juror being overheard saying something tangentially related to the trial, but not directly relevant to it.  My fellow jury members had varying interpretations of “Don’t talk about (or research) this case.”  Several people had looked up the bio of the judge, just out of curiosity.  Many comments were made about the ADA’s wardrobe and the general demeanor of the defense lawyer.  Here, I think a comment about the judge (e.g., “I hope that guy is retiring soon.”) would trigger something that looked like what we saw Friday.  Just my wild-ass guess.

          • bmaz says:

            Yes, it certainly could be that, and there has been a lot of speculation to that effect. But it could be a lot of things. We’ll see.

            • Steven Smith says:

              Hmm, almost sounds like you’re channeling someone who likes that phrase (“… We’ll see.”) — but you didn’t precede it with something completely outlandish. (;>)

              ps: I am a long-time lurker who very (VERY) much appreciates all of you regulars (not to mention Marcy) and your incisive and insightful analysis. Thanks to all of you for your dedication — this is one of the few places I can go to on the Internet that doesn’t leave me in total despair…

  19. Kick the darkness says:

    Other than beating up on Rick Gates, do the legal people here have a sense of what other strategies Manafort’s lawyers intend to employ as a defense?  From  media accounts of the evidence that has presented so far, discrediting the paper trail seems….well, an uphill battle.

    I guess I’m curious because from Marcy’s post the “fishing for info” from Manafort’s team sounds perhaps conspiratorial.  On the other hand, it might also be viewed as due diligence if sending up “pardon flares” is seen as Manafort’s best legal option.  I guess my question might boil down to: are Manafort’s lawyers efforts as described unethical, or not?

    • SpaceLifeForm says:

      “fishing for info”

      The biggest fisherperson has been Rudy.

      But, there has been no bait or lure on the fishing line. And there are no fish in the swamp that rudy is in.

      • Kick the darkness says:

        I’d gone a few days w/o thinking of Rudy.  Whatever he was in the past, he’s become a human fog machine.  But a special kind of fog, with atomized pieces of shit clinging electrostatically to the water droplets.  Every time Rudy shows up on the radio or the TeeVee, there is a person, presumably an adult, that makes a decision to allow that to happen.  Even though they must know they are misting their listeners with shit-fog.  And that’s really sad.

    • pseudonymous in nc says:

      I do wonder who they’ll call as witnesses, and whether that would be one way to put a wrinkle in the case. For the lawyers: what potential arguments have Paulie’s lawyers essentially ruled out given that they haven’t disclosed anything to the prosecution?

      • bmaz says:

        I am not fully convinced they are going to put on a defense case as opposed to just going to closings. If so, maybe a banking or tax expert? But the prosecution might well carve them up, that is a danger. So, then what? They may well just rest.

        • Frank Probst says:

          As a juror, I think it’s dangerous to rest without presenting a witness.  The wording of a motion to dismiss is obviously very technical, but it boils down to asking the judge if he thinks the jury COULD (not should) convict based on the prosecution’s evidence.  I think that the ruling gets made on every charge individually.  If Judge Cranky-Pants says yes to all or most of the charges, it means the prosecutors have crossed some minimum bar to potentially convict.  The jury basically starts knowing some sort of legal hurdle to convict has been crossed.  If the defense rests immediately, they’re essentially saying that while the prosecution may have gotten over some low bar to convict, they didn’t quite make it to “beyond a reasonable doubt”.  It shifts the psychology a bit from “guilty vs not guilty” to “not-quite-guilty BARD vs guilty BARD).

          • Kick the darkness says:

            Apologies-not sure I follow.  Are you saying if Manafort’s defense just decides to rest, the hope may be to leave the jury with lingering doubt about whether a “BARD” standard had been met? But that you see that as a dangerous strategy.

  20. Rusharuse says:

    Darling Rusharuse

    The night we met I knew I needed you so
    And if I had the chance I’d never let you go
    So won’t you say you love me
    I’ll make you so proud of me
    We’ll make ’em turn their heads every place we go

    So won’t you, please, be my, be my baby
    Be my little baby, my one and only baby
    Say you’ll be my darlin . .

    R S

  21. Thomas says:

    Ha! Thanks to the discussion about the Space Farce above, there is now an alternative etymology for the origin of the term JAG-off?

    A veteran in the Pittsburgh area had occasion to adopt the shortened form for “JAG Officer” as a perjorative? I’ve been hearing the term since at least the late sixties so…Vietnam War era origin maybe? …grin…

    “Yeah he was a real jagoff!” commented the guy who felt improperly interrogated by…some unnamed jerk who reminded him of a particular JAG Officer? Then overheard by someone else and used as a perjorative without the original context because it sounds like an insult insinuating that someone who acts like a jerk is sexually frustrated?

    None of the dictionaries suggest this origin but…makes sense to me!
    I never had a negative view of JAG Officers, but I can imagine how it might have evolved.

    Interesting trivia: Oxford dictionary adopted the word “jagoff” as a word of the English language in September 2016.

    I can only speculate as to why they decided to do that…then.

    • Bri2k says:

      Native Pittsburgher here chiming in to let you know that my fellow Golden Triangle denizen was telling you a tall tale. Jagoff has been around a lot longer than the late 1960’s. I think it came from the steel workers and it was a common idiom at least going back to the 1930’s if not further.

      I saw a sign lauding our local Pittsburgh Poet Laureate and my first thought was ” I wonder how many words rhyme with yinz…”

      • errant aesthete says:

        ” I wonder how many words rhyme with yinz…”

        Another native Pittsburgher blushing with genuine affection and mortal embarrassment.

  22. JP says:

    On the issue of a subpoena  for Trump.

    Is it the case that Mueller cannot issue a subpoena for Trump because Trump is a (the) target of the investigation, and targets are not  subpoenaed?

    In which case we will never get Trump to talk. This seems to me to be very bad.



    • bmaz says:

      It is not prohibited to issue a subpoena for a target, it is just usually not done because they will just plead the 5th. There is nothing stopping Mueller if he wishes to issue one to Trump.

      • JP says:

        I thought it was justice dept policy not to issue one to a target. Guess I was wrong.

        I sure do wish Mueller would issue one to Trump. It seems to me that it appears now that Muller is a bit frightened of Trump. The people presenting the government case in the Manafort trial sure do act like they are scared. They ought to tell that dreadful judge to take a quick hike,


  23. Rusharuse says:

    FWIW Trump is tweeting the Ohr/Mrs Ohr/Steele story. Stampede of minions lining up for the Sunday shows?

  24. dreisso seleet says:

    This analysis strikes me as being much too speculative. Also, it relies on the notion that Manafort’s lawyers would be involved in a conspiracy to expose information on the Mueller campaign so that Trump might pardon Manafort. That seems implausible, doesn’t it?

    • bmaz says:

      Manafort’s lawyers would absolutely attempt that, and it is not wrong for them to try. Arguably it may be their ethical duty to attempt it to zealously represent their client. That doesn’t mean it was proper under the evidentiary rules, and so the court ruled.

  25. Trip says:

    Manafort’s house in Beverly Hills used as Airbnb Party City All Night Long, via Jeffrey Yohai, ex-son-in-law.
    southpaw‏ @nycsouthpaw

    little-noticed local news item out of Beverly Hills from February

    The same in SoHo (Sorry in advance for the DailyFail link)

    Paul Manafort told his son-in-law to lie that his SoHo apartment was being lived in and was NOT on Airbnb as part of mortgage fraud, prosecutors reveal – as they get rare apology from judge for brow-beating

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