Sometimes a Plea Is Just a Plea: The Ongoing Criminal Exposure of Mueller’s “Cooperating” Witnesses

One of the most interesting details from the government’s George Papadopoulos Sentencing Memo released last night is this passage, stating that Papadopoulos’ plea was not a standard cooperation agreement.

The plea agreement entered into by the government and the defendant was not a standard cooperation agreement, and the government did not agree to make a motion under U.S.S.G. § 5K1.1 based on cooperation by the defendant. Nevertheless, the government agreed to “bring to the Court’s attention at sentencing the defendant’s efforts to cooperate with the Government, on the condition that [the defendant] continues to respond and provide information regarding any and all matters as to which the Government deems relevant.” (Plea Agreement p. 4). Pursuant to this agreement, the Government provides the Court with the following information.


The defendant did not provide “substantial assistance,” and much of the information provided by the defendant came only after the government confronted him with his own emails, text messages, internet search history, and other information it had obtained via search warrants and subpoenas well after the defendant’s FBI interview as the government continued its investigation. The defendant also did not notify the government about a cellular phone he used in London during the course of the campaign – that had on it substantial communications between the defendant and the Professor – until his fourth and final proffer session.

While there had been some discussion about what kind of plea deal Papadopoulos got, this statement seems to say that Papadopoulos didn’t offer up any specific cooperation against co-conspirators. Rather, the deal was simply that if he offered up his cooperation about his own actions, the government would tell the court that he did so, with no obligation to ask the court for any downward sentencing. The deal, then, was to limit his exposure to just one false statements charge, rather than the multiple false statements and obstruction charge he could have gotten for trying to confuse the FBI.

Importantly, the deal only applied to conduct specified in the offense — that is, the lies to the FBI and the obstruction of justice by hiding his Facebook and cell phone data. While his statement of offense includes much of his discussion with Russian assets about setting up a meeting, it says nothing about other conduct, such as accepting $10,000 from a suspected Israeli asset, or his ongoing negotiations with Sergei Millian, basically to spy on the Trump administration in exchange for a monthly payment (which was conditioned on getting a job in the administration, which is one of the reasons — the government suggests in the memo — why Papadopoulos may have lied to the FBI in January 2017).

That is, Papadopoulos not only faces prison time if the court accepts the government’s recommended sentence, but he may have ongoing exposure for foreign agent or conspiracy charges not covered by this plea agreement.

He made a deal to get several false statements and obstruction charges turned into one, but he didn’t even capitalize on that deal, and may still face additional legal risk tied to the Russian tampering.

That led me to compare the language for all the other plea deals Mueller’s team has made (something NYCSouthpaw started to do in this thread in February). It’s clear that Alex van der Zwaan got the least out of his plea deal (though he may have cooperated more in getting to that deal, which would have been important given his foreign status). That’s significant, because the prosecutor compared van der Zwaan to Papadopoulos in their memo.

The other three plea deals — Mike Flynn, Richard Pinedo (for identity theft tied to the Internet trolls), and Rick Gates — do obligate the government to submit a 5K statement for downward departure on sentencing if the person provides substantial cooperation.

But Pinedo and Flynn’s deals are limited just to the statement of offense. In Flynn’s case, his statement includes several lies to the FBI and his failure to register under FARA, but not a lot of other known conduct, even aside from any conspiracy involving Russia.

Only Gates’ plea includes broad forgiveness for criminal conduct (though the charges he pled to also include more significant penalties than Flynn and Papadopoulos). That’s yet another sign that he offered quite a bit in his proffer, well beyond incriminating Paul Manafort.

I’ve been nudging the attentive lawyers to explain what this means in terms of ongoing exposure. But if I were Mike Flynn, the Papadopoulos example might really incentivize me to be more cooperative.

George Papadopoulos:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense.

No government obligation section beyond,

agreeing to bring to the Court’s attention at sentencing the defendant’s efforts to cooperate with the Government, on the condition that your client continues to respond and provide information regarding any and all matters as to which the Government deems relevant.

Mike Flynn:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense.

5K language included.

Alex van der Zwaan:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense, for any other false statements made by him to the Office on November 3 and December 1, 2017, any destruction, deletion, and withholding of documents and evidence in connection with requests by this Office or his law firm, and any violations of the Foreign Agent Registration Act or other law arising from the preparation and/or roll out of the Tymoshenko report for the Ukraine Ministry of Justice.

No government obligation section.

Richard Pinedo:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted crininally by this Office for the conduct set forth in the attached Statement of the Offense.

5K language included.

Rick Gates:

In consideration of your client’s guilty plea to the above offenses, and upon the completion of full cooperation as described herein, no additional criminal charges will be brought against the defendant for his heretofore disclosed participation in criminal activity, including money laundering, false statements, personal and corporate tax and FBAR offenses, bank fraud, and obstruction of justice. In addition, subject to the terms of this Agreement, at the time of sentence, the Government will move to dismiss the remaining counts of the Indictment in this matter. In addition, the Office will move promptly to dismiss without prejudice the charges brought against your client in the Eastern District of Virginia and your client waives venue as to such charges in the event he breaches this Agreement.

5K language included.

21 replies
  1. SpaceLifeForm says:

    Reading between the lines, I see a carrot and stick approach wrt Papa.

    The stick:  up to 6 months in jail.

    The carrot:  If FBI has further questions and Papa can provide useful ‘stuff’, then maybe no jail.




    • bmaz says:

      Nope, it is a standard guidelines sentencing recommendation for that offense. There is nothing unusual about it in the least (though there are interesting facts in the PSR)

    • Charles says:

      The prosecution has placed stick and carrot in the hands of the judge.

      If Papadopoloulos is going to cooperate, it would have to be through the prosecutor. So, I doubt this applies.

      What the government gets is the right to call Papadopoulos a convicted criminal. In other words, a bigger stick for future trials in which he is the defendant.

      However, that stick also reduces his value as a prosecution witness against others, since defense counsel then wields that stick. My guess–and my hope– is the government is getting ready to beat the ^%$# out of Papadopoulos.

      • Avattoir says:

        “However, that stick also reduces his value as a prosecution witness against others”

        ARGUABLY. It can depend on who those “others” are, and the context in which his testimony is proffered.

        E.g. certainly anything he might testify to that isn’t backed up by independent evidence, i.e. “corroborated”, will suffer from the defect you posit. But, say the government were to call Convict Papadopoulos as a witness against a theoretically named-defendant “K”, or a “T Jr.” (or both), or a “B”, AND the government also proffered evidence that corroborates whatever P has to say that’s relevant to the charge(s) before the court. In that circumstance, P’s having been convicted may be irrelevant, or, indeed, may actually prove useful – especially because any trial judge would be obligated to instruct the jury on what evidence is capable of constituting corroboration.

        Bear in mind that in mob cases, where admitted serial murders are being called to testify against alleged serial murders – say, the kind of case Greg Andres prosecuted in his SDNY days – it surely does not hurt the government’s case that the witness is not in fact reputedly a pious and proper citizen who goes about his otherwise perfectly boring, lawful and legit life.

        I mean, whereas a jury might well be inclined to accept as truthful the testimony of someone named Sammy the Bull (or Mickey Medallions?) because it makes sense that the kind of defendant charged with X type behavior is who they’d expect to be found pal-ing around with a Sammy the Bull, it may well NOT be so inclined in hearing from some pious upstanding sweet old lady or 3 pieced corporate dude who’s exactly the sort of defendant would NOT pal around with.


        • Charles says:

          I said that the prosecution would be handing a stick to the defense, Avattoir. Not that the stick would determine the outcome.

          So, sure, the testimony of convicts is used to convict others. But the point of my comment is thinking through what Mueller is accomplishing with the mild sentence recommendation for Papadopoulous. Marcy has half-convinced me that Mueller is about to drop a much larger on anvil on Papadopoulos’s head. If so, then the guilty plea somewhat immobilizes Papadoulos’s defense, making it easier to land the second blow.

          • bmaz says:

            i have said this in a previous thread, but let me repeat it. The proposition that the Papadopolis sentence recommendation is “mild” is absolute garbage. It is a straight up standard vanilla offer for the §1001 count he is being sentenced on, and for a person with no priors. I know that people who don’t do this for a living want to make all kinds of conclusions on their own, but that statement is absolute rubbish. It is EXACTLY the Guidelines recommendation you would expect.

            • Charles says:

              Well, maybe you can explain the details to those of us who are not attorneys, bmaz.  The Sentencing Guidelines in §2J1.2. Obstruction of Justice state that the base level is 14. That would seem to be 15-21 months.

              ConFraudUS (Sec. 18 U.S.C. 286)  if treated as fraud, starts at level 6 by my reading. The plea deal mentions three deeds that Papadopoulous committed: mis-stating a) the nature and timing of his relationship with Mifsud, b) his knowledge of Mifsud’s relationship with the Russian government, and c) his meeting of a female Russian national. If stacked, this would seem to reach level 10.

              If you want to consider me an idiot for thinking that the US could charge a more severe offense than the one count Papdopoulos pled to (“willfully and knowingly mak[ing] a materially false, fictitious and fraudulent statement and representation”) or stack less severe offenses to guarantee some jail time, I would seem to be in good company.

              David Graham of The Atlantic states that:

              Although Papadopoulos could face up to five years in prison for the crimes to which he has pleaded guilty, the prosecution agreed to seek far less than that—zero to six months—as part of the deal, though a judge will make the final decision.

              If you would rather shed light rather than heat, you could explain to me how Graham is wrong.

              • bmaz says:

                GP pled guilty to a single count of 18 USC §1001. He has no prior convictions and fully accepted responsibility. Here is a very basic primer on how guideline sentences are calculated. Here is the government’s sentencing memo.

                All those other offenses you mention are NOT what GP pled to and being sentenced on. Mr. Graham is not a criminal defense attorney and simply parroted the maximum possible sentence (5 years) without considering either the guidelines or the mitigating factors under the guidelines. That is why he is wrong. §1001 is a rather low level base offense (I think is only a level 4) and with the mitigating factors GP possesses, the guideline range is from 0 to 6 months. Exactly as the government admits in its sentencing memorandum. It plain vanilla and exactly what you would expect in these circumstances. Also identical to the range for the same offense as to Alex Vander Zwaan. That is why the range is what it is.

                • Charles says:

                  Thank you for the explanation and the link.

                  My observation as a non-lawyer is that the government is somehow able to generate massive penalties for people like Barrett Brown, Aaron Swartz, animal rights investigators, and anyone else that it wants to slam. For example, Kevin Tosh, who submitted a fraudulent claim and pled under 18 U.S.C. § 1001:

                  The defendant understands that the statutory maximum penalty which may be imposed against him upon conviction for a violation of Title 18, United States Code, Section 1001(a) is:

                  a term of imprisonment for five (5) years (18 U.S.C. § 1001);

                  a fine in an amount equal to the greatest of (1) $250,000, (2) twice the gross pecuniary gain the conspirators derived from the crime, or (3) twice the gross pecuniary loss caused to the victims of the crime by the conspirators (18 U.S.C. § 3571(b) and (d)); and

                  a term of supervised release of three (3) years following any term of imprisonment

                  The fine being added because of pecuniary damages. So, forgive me if, without training in the law, I am unable to understand why a guy who pled under exactly the same statute, but lied repeatedly, and attempted repeatedly to cover up his crime and has shown no repentance whatsoever is getting zero to six months. It seems very, very wrong.

                  • bmaz says:

                    He accepted full responsibility in his plea allocution. Again, this is EXACTLY the appropriate recommendation under the guidelines. You can wish away all you want, but you are wishing for inappropriate action. That is the deal that was agreed to and the appropriate range and recommendation for it.

    • Rusharuse says:

      Maggs writes about collusion . . and of course there weren’t none. Didn’t Mc Goon have something to do with the campaign/transition? Geez, that would have bin a great vantage point to spot any conspiratorial activity. Alas, no mention of that C word! BTW, Dowd “the pardon whisperer” – his good work with team Manaforte needs to be acknowledged (and rewarded).

  2. Bob Conyers says:

    I suppose this could be a hint that Mueller is marshalling resources for bigger fights, but wiser people will tell me that there’s really no way to know.

  3. Rapier says:

    All of which makes the wife’s squawking about backing out of the deal even more absurd. I suppose that was really more in service to getting a pardon from Trump, somehow. I can imagine Trump chomping at the bit to give his fist pardon in this.

    • earlofhuntingdon says:

      Simona must have been sold on the idea that a pardon from the Don was the best and only way out for her hubby.  Too bad she didn’t assess the probability of getting one.  If I’m ever in trouble in Italy, remind me not to use her as my lawyer.

  4. earlofhuntingdon says:

    As the Don will eventually realize, there can be a real price to pay in hiring shitty lawyers.  Sucking up to him and knowing how to be a good lawyer are not the same thing.

  5. obsessed says:

    Why, pray tell, did Papadoupolos just tweet “tick tock”? This whole thing and everyone in it is totally nutso. Especially Ms. Mangiante.

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