The Objection that Made Mueller’s Case

This will be a grandiose statement, but what the fuck, it’s a crazy day.

The moment when Robert Mueller made his case came on August 7 when Greg Andres objected to a line of Kevin Downing’s cross-examination of Rick Gates.

The lawyers went into a sidebar with Judge Ellis. According to a successful prosecution motion to seal that part of the sidebar, the two sides argued about details of Mueller’s investigation.

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.

Ultimately, Ellis ruled that Manafort’s team could not pursue that line of questioning. I believe that objection is what led to Manafort’s plea deal today, and with it, likely the final bits to the key conspiracy case against Trump and his spawn.

I say that for the following reasons.

Manafort got very little (that we can see) from his plea deal

Start with Manafort’s plea deal. When I was thinking of Mueller’s leverage the other day, I imagined Manafort might plead to the charges he did today, but that Mueller would also bracket off some of Manafort’s forfeitures — probably the $16 million that the holdout juror saved Manafort in the EDVA case. That didn’t happen — Mueller dumped the EDVA forfeiture into this deal, so that Manafort will lose all of his thus far identified ill-gotten gains (he’s apparently swapping his Trump Tower apartment for one of the financial accounts, which means that the US government will soon own a Trump Tower property it has unlimited discretion to decide what to do with).

And unless he gets a downward departure for significant cooperation, he’ll do ten years. Under some scenarios, that’s what he would have gotten had he gone to trial in DC and lost. So aside from saving him from a second (and possibly third, if the government pursued the 10 hung charges in EDVA) trial, Manafort got very little that we can see in his plea — just the legal fees associated with the trial(s), while losing the forfeiture he had won by going to trial in EDVA. And for that very little, he kisses away all hope he’ll get a pardon, as well as the (admittedly slim) chance that he might not be found guilty in DC. He also forgoes any appeals and any profits off telling his story. He basically commits to going to prison and coming out an old man to a vastly diminished fortune.

The possible plea benefits we don’t know about

That says the reasons behind Manafort’s decision to accept this plea are things we can’t see but he can.

There are two related possibilities: First, that Manafort came to the conclusion that he’d never get the pardon he had been working towards. That might stem from justified distrust that Trump will ever keep his word, but I doubt it. A pardon was always Manafort’s best way out, and up to a point, it made sense for him to take his chances with Trump.

Which suggests that, for some reason, Manafort came to believe Trump wouldn’t be able to pardon him, probably because he came to understand it would be politically impossible or legally improbable.

Couple that with the other thing that might convince Manafort he’d be better off taking this plea now than continuing to fight his charges: that he knew the next thing he was going to be charged with would be far worse. Just as one example, I’ve suggested that once you’re working for the government of Ukraine (as Manafort was, in the charges settled today) or the government of Russia (as might be established if you showed Konstantin Kilimnik is a Russian intelligence officer, as Mueller has already alleged), very little separates a FARA charge (what he pled to today) from a 18 USC 951 charge, spying. It’s a lot harder to pardon someone for spying than to pardon him for obstruction and financial crimes.

It’s also possible that Manafort came to understand the scope of the conspiracy prosecutors are now pursuing. If he knew they already had the evidence to charge Trump as a co-conspirator in that conspiracy, it would also make it a lot harder for the President to pardon his co-conspirators.

In any case, whatever it is, it’s likely that Manafort had figured out where the prosecutors were heading, and he recognized he was far better off with this painful cooperation deal than being included in the next indictments. Losing his ostrich skin shirt (and five homes and $46 million) and trying to cooperate into a lesser sentence beats facing down a spying charge as part of a conspiracy with both the Russians and a president with severely curtailed pardon abilities, as it turns out.

The Rick Gates details he tried — but failed — to put into the public record

Which brings me back to that Andres objection on August 7.

Just before the EDVA trial, the government would have had to provide Manafort all their 302s from Rick Gates, so he could use that information to damage Gates’ credibility on the stand. And damage his credibility he did, among other things, by revealing that Gates stole money from the Trump transition.

But in addition to looking at those 302s for impeachment evidence, Manafort also surely looked at it to see what Gates had already provided to Mueller’s prosecutors. I’m guessing (based off what a number of people have said about the role Gates played on the campaign) that Gates got Mueller 90% of the way to a conspiracy involving the President, leaving just some meetings attended only by Manafort and Trump as gaps in the evidentiary record.

And that’s what I believe Downing was trying to do back on August 7: Elicit testimony from Gates that would lay out some of the evidence he had provided Mueller in such a way that didn’t violate the protective order he signed in the DC case (there’s not one in the EDVA case, but the DC one basically covers that, not least because the discovery significantly overlaps). So Downing was trying to put into the public record something about what Gates had told Mueller.

Had he succeeded, perhaps Trump would have recognized the jeopardy that put Manfort (and, presumably, himself) in. Perhaps he would have taken that moment to pardon Manafort, and save him from that jeopardy.

But Greg Andres piped up to object, Mueller’s team won the still sealed sidebar discussion, and Manafort failed to introduce whatever evidence into the public record for Trump and his other co-conspirators to see.

Which left Trump and his legal team, even as Manafort had his first proffer discussion with Mueller on Monday, still claiming that Manafort remained in a Joint Defense Agreement four days later, apparently blissfully unaware that Manafort had seen enough to decide it was time to flip.

Downing’s ploy probably wouldn’t have worked anyway. Pardoning Manafort might have helped Manafort, but if Mueller got 90% of the way to the conspiracy with the witnesses he has (including Sam Patten, whose plea surely contributed to Manafort’s certainty he was fucked going forward), then it wouldn’t have helped Trump and probably would have gotten us closer to when Republicans realize Trump has become an anvil rather than an electoral plus.

But I suspect that was the moment when Manafort’s cooperation, with whatever last little bits implicating Trump, became inevitable.

As I disclosed July, 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. 

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125 replies
  1. Bob Conyers says:

    Would things like agreements over living conditions in prison, visitation rights, and protection for family members be a part of the public deal with Mueller? Or would they have been verbal assurances, if they happened?

    I assume those things by themselves wouldn’t be enough to move Manafort one way or the other, but they might add to the balance, and I’m curious how the public would know about them.

    • emptywheel says:

      Downing said in today’s statement that this is partly abt keeping his family “safe.” Which is an interesting statement.

      • Perris says:

        perris here

        sorry if this idea apears a few times, I can’t figure out how to get around the spam filiter

        Downing said in today’s statement that this is partly abt keeping his family “safe.” Which is an interesting statement.

        I’ve been posting for a while, Manaforte didn’t flip cause he was worried about a putin contract

        This deal might include some protection, which might be why he was so willing to forfeit his assets, those might be earmarked somehow

        Dunno, pure guessing from me

        with family and friends, it’s going to be might hard for him to “lay low”, he didn’t even have enough self control to keep from witness tampering, knowing they were watching him

        [Quit trying to get around the spam filter — it’s there for a reason. You now have three accounts for four comments which constitutes sock puppeting. If your comment goes into the filter we will free it as soon as we can. /~Rayne]

      • Bob Conyers says:

        I’m skeptical of the Putin hitman theory, but I guess you can’t rule it out.

        At any rate, I will bet that Manafort and his family get a lot of threats, seeing as we are in an era when messed up people think they can create untraceable accounts (they’re probably fooling themselves, though).

        Judge Ellis took on extra security during the trial out of concern for his safety, and Manafort and his family have probably gotten far more threats than him. If Putin was threatening him, it would probably be hard to separate from all of the fake-Russian pranksters and sociopaths.

      • Anon says:

        This is pure speculation but perhaps the issue is not some potential hitman but a very real prosecution. From what has been publicly released it seems that Manafort engaged in a great deal of money laundering. One thing that I recall from Criminology class (and the Panama Papers) is that such laundering often involves routing money through other individuals who hide one name by putting on their own.

        Perhaps Manafort used his family, or some members of it to do the washing up and what he is really getting is a promise that they won’t go in the dock for their own part in the process. That is, he takes 10 years so they don’t each do 5.

        • Bob Conyers says:

          I’m thinking along the same lines as you.

          The advantage of holding evidence of a crime over someone’s head is that it can be doled out incrementally. Murder is a one time event, and by using it you lose the opportunity to leverage your target. A botched murder attempt or overly heavy handed threat drives your target into the arms of law enforcement and risks a lot more blowback.

          Using evidence of a crime can be a much less crude tool.

          • Wm. Boyce says:

            Nonetheless, Mr. Manafort did lots of dirty deals w/lots of really despicable people and it would only take one contract…

  2. AJ says:

    This is fascinating. But what does it tell you about the timeline? Even without the 60-day nonsense, it seems unlikely that Mueller would want to land a direct blow on Trump near the election. But if he was 90% there before Manafort, what happens between now and then? Or do you think the big blow is imminent?

        • Tracy says:

          Ya, was wondering where Stone fits in in the pecking order after I posted this. :-)

          Someone further down also mentioned Carter Page, reminding me – he’s still a loose string, IMO.

      • J R in WV says:

        But what about all the other office holders who have received campaign donations of foreign funds via the NRA or other PACs, themselves washing foreign funds into apparently legal, but actually still illegal foreign political donations?

        By which I mean McConnell, Ryan, Dana Rorabacher (R, Moscow!), Nunes, etc, etc. Can’t the SCO or other federal prosecutors be working to indict both the eventual recipients of those funds AND all the dirty hands those illegal donations were moved through?

        Of course, the Trumplettes but for Tiffany and Baron would be sweet also, but the actual office holders in the Senate and House, that would be a real accomplishment — the Trumplettes are fun to see suffer, but they don’t actually have the reins of power in their hands, like McConnell and Ryan etc do.

        Oh, that will make me so happy…. I’m saving champagne for that day !!! And I’ll get more for Conviction/pleaded guilty Day, our newest national holiday!

      • Jim says:

        I think Pence and a couple of Congressmen are in that order of succession, as well.  Remember who pushed Pence on Trump…

    • Milton Wiltmellow says:

      If the track leads to treason, the election isn’t an issue.

      Or rather, the 2018 midterm election becomes an insignificant issue compared to an investigation that started before Trump and which wraps up an entire Russian plot.

      Besides, the point of the Russian plot wasn’t to elect Trump but to sabotage democracy.  Without that reveal before the election, the election itself will be in dispute.

      An artificial DoJ rule isn’t going to stop this train.

      • Doug R says:

        I’m fine with Mueller waiting until November 9th or so to charge Rohrbacher and Nunes. No need to wait for anyone not on the ballot, that’s my read of the “rule”.

         

  3. Rob M says:

    Hi Marcy,

    Excellent as always. Out of curiosity: do you have any sense of how much closer we are to you being able to reveal what you shared with the FBI? Does today’s news impact that timeline in your mind?

  4. SpaceLifeForm says:

    I believe that it is important to note that it was the Manafort legal team that was fishing for dirt.   Not Manafort himself.

    The Manafort legal team was wanting to discredit Page.

    Now we have WH backtracking on ‘Manafort will tell truth’

    So, they (Trump Org, FS, etc, etc), realize how fucked they are, and their only prayer is to call Manafort a liar.

    • bmaz says:

      Honestly SLF, this is just freaking stupid, as is almost every digit of your legal analysis as a general rule.

      Please do the denizens of this blog a favor and stop bloviating about legal things about which you have no clue.

      The first rule of commenting here is do not make others more stupid with your comments. You relentlessly violate that first rule. Keep it up, and we will have a far different conversation.

  5. jf-fl says:

    “surely contributed to Manafort’s certainty he was fucked”

    well-earned profanity, EW!   now only rodger stone and the trust fund babies’ uncertainties remain.

    hopefully you’re going to write a book on mueller investigation.   realize as a witness maybe you can’t do it while mueller is in SCO, but it would save me from having to buy seth abrahamson’s and throwing away every page but his citation chapter.

    enjoy your 4-letter weekend.

  6. tinao says:

    ALOHA from my last day of vacation. This is what you get when precision comes up against fools. Go Bobby Three Sticks!

  7. Perris says:

    Perris here.

    This deal is way one sided, too one sided, my mind says there really has to be lots deeper.

    As I said on the checkmate post, I believe the hidden agreement might have something to do with witness protection, to help guard against a Putinesque assassination

    The asset seizure might be earmarked or offset that end btw

  8. Kevin says:

    One thing I’m interested to (some day) find out if how much contact Manafort had with the campaign after he left. We know about some and at least semi-regular contact has been reported. But was he also involved in the sanctions feel that developed in January/February?

  9. EconGeek says:

    Great post – thanks! Always interesting to get your knowledgeable take on the inside-baseball details. Keep it coming.

  10. Charles says:

    One thing that makes me wonder is why the deal was announced on a hurricane Friday. Granted, we can’t schedule hurricanes and Fridays come once a week, but this moment is singularly well-suited to bury news.

    I have also wondered whether there wasn’t some sort of agreement between Trump and various witnesses to simply delay. If they can get past the Kavanaugh nomination, Trump gains a powerful ally in using the pardon power in unusual ways. The Ford pardon is a precedent, providing absolution for offenses that had yet to be charged. A pardon of the conspirators using similar language would be a get-out-of-jail free card even for continuing to lie to Mueller. For this reason, I’m skeptical that this is checkmate. Check, certainly, but not checkmate.

    As Marcy says, state charges could be levied. But state AGs are much less well-equipped to charge complex crimes than federal prosecutors. And it depends on the state.  Mark Herring is secure, but in New York, the AG’s race is contested. Although Leticia James is likely, Keith Wofford could win. And, of course, New York terms as double jeopardy charges that have been tried in federal court. Plus, of course, things could get appealed from a state Supreme Court to the Kavanaugh Court. Sure, norms would seem to forbid that. But we have seen norms routinely discarded.

    Today was a good day. But we are going to need more good days, and a lot more work to finally put the nosferatu of the radical conservative movement back undergound.

    • pseudonymous in nc says:

      Investigations and trials have their own momentum. Jury selection in DC was next week; the final pre-trial hearing was set for this week.

      King Idiot and Rudy want headlines, Mueller’s team wants pleas and verdicts. Timing doesn’t matter. And it means that the prosecutors, especially the litigators, can move on to what’s next.

      • Charles says:

        I hope you are not just pseudonymous but also dry and housed in NC.

        I agree that there may be no reason whatsoever for the plea to come on Friday. Mueller does seem to do a lot of them on that day, perhaps because his GJ meets then… so Marcy could be right that he had Manafort answer questions for them. And it’s also true that Mueller lets his indictments do the talking. But he’s also politically very astute, which is how he has protected the investigation, never threatening Trump so directly that Trump felt impelled to act. It’s possible he wanted the least noise possible, to keep Trump quiescent. And none of us know: it’s just interesting speculation.

  11. Tony says:

    “It’s a lot harder to pardon someone for spying than to pardon him for obstruction and financial crimes.”

    Don’t think your theory here is viable. President Nixon was granted a blanket pardon (“absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974”), no reason to see why Trump wouldn’t have done the same here for Manafort, which would have preemptively done away with any more progress down the spy road or any other road concerning events preceding the pardon.

    Your second scenario, that Manafort used the first trial to get a good look at what the prosecution had, confirmed it was not a bluff, that he tried to force a Trump pardon with Gates’ admissions but ultimately failed to do so (due to the objection), and that he tried and failed to get a true believer on the jury to throw the case (one almost did), is likely what caused Manafort to see he was screwed. As you pointed out earlier, a pardon now, post conviction on the first case, would not do much. But a pardon before the first trial ended would have.

    Trump’s only play here was to pardon Manafort after Gates’ testimony (which regardless of the objection showed that these folks were in deep) and pin it all on Gates being corrupt and trying that argument in the court of public opinion rather than the district court. Trump would have had considerable political blowback as well, but it would have beat Manafort turning rat and likely directly inculpating Trump in a conspiracy via percipient witness testimony. Manafort, as far as we know, is the only person who can directly inculpate Trump.

    Next up: Jr, Kushner and possibly Ivanka.

    • Rayne says:

      Thanks for your comment. Please use the same username and email address when posting at this site; you have more than one username/email right now.

  12. Strawberry Fields says:

    I’ve been wondering about Manaforts loans and deals for high profile government jobs, if he will shed light on whether Trump was also profiting from some of the arrangements.

  13. Scott Rose says:

    As a P.S. to the commenter above who suggested that Wofford could beat James to become New York’s next Attorney General, I very much doubt that.

    As of April 1, 2016, New York State’s registered voters were 62% Democrat, 30% Republican.

    • Charles says:

      Since I’m that commenter, I should like to mention that I said “Although Leticia James is likely, Keith Wofford could win.” Candidates can stumble and there’s not much time for recovery.  I don’t expect Wofford to win. But if were to happen, it would likely mean no state level prosecution of Trump.

  14. Frank Probst says:

    How likely is it that Manafort can be used to get Roger Stone without the remaining two holdout witnesses? He not the next one up the food chain, but he’s one of the bigger loose ends that may not end up having anything to do with the case-in-chief but is still in legal jeopardy.

      • Tracy says:

        Hey, Frank, maybe the 2nd guy you’re talking about Jerome Corsi? The last I’d seen he didn’t show for grand jury subpoena – but now I see a CNN politics article (Sept 7) saying that his appearance was postponed after he went in for hours of voluntary questioning the day before with the OSC.

        I don’t know the update after that, and perhaps you mean someone else.

      • Frank Probst says:

        Whoops.  Didn’t realize Corsi had gone in voluntarily.  This is why you write the blog and I just comment on it.  ;)

  15. orionATL says:

    andres’ revenge

    “… The moment when Robert Mueller made his case came on August 7 when Greg Andres objected to a line of Kevin Downing’s cross-examination of Rick Gates… 

    … Ultimately, Ellis ruled that Manafort’s team could not pursue that line of questioning. I believe that objection is what led to Manafort’s plea deal today, and with it, likely the final bits to the key conspiracy case against Trump… “

    • Avattoir says:

      There’s the objection: fine. And credit Andres: he deserves that & more. But there’s also the ruling. Do we credit Judge Ellis?

      I wouldn’t.

      Leave aside any exercise involving the weighing of all the crap Ellis did in the context of the trial in EDVA (which was a LOT, a very noticeably large pile of steaming crap, indeed more even than were suggested in fearless leader’s posts & enthralled readers’ comments at this site) against this one ruling among the relatively few Ellis made that didn’t leave my head shaking, I suspect that what played way louder in Ellis’ head than Andres’ objection at that point, was deference to Judge AB Jackson.

      Recall there’d been an earlier exercise in deferential self-debasement by Ellis, where first he managed to manipulate the docket so that ABJ and not Ellis was first choice to entertain the dismissal motion.

      Now, I can’t show with anything like sufficient objective reassurance that Ellis’ deference to ABJ on that earlier front was a smoking gun of abject cowering on Ellis’ part (with him recognizing that his work at the judging thing inevitably would be compared to hers & fearing, as highly likely, the impression of him being left or fortified among those whose opinions still kinda sorta matter to him, as a hack. But FWIW he’s a fucking hack, and he fucking knows it.

      So here then was a SECOND instance where trial counsel were calling on him for a ruling on a point on which ABJ already had exercised her far superior judging and made a ruling that Ellis would feel compelled to follow in a consistent manner (or, depending on one’s view, cower before as a craven hack).

  16. jharp says:

    A truly remarkable day.

    And a terrific post.

    I’m thinking Carter Page has a pretty serious problem on his plate.

    I’m betting he’s the next to flip.

    • Avattoir says:

      Why do you think that?

      Interested because … I think of Carter Page as a pure FISA target, a p.o.i.: piece of intel.

      I’m nowhere remotely near enough to what the intel community has on this dude to hazard an opinion on his ratio of fake, flake and flack, but I do know from those who’ve worked that world that Page is far from atypical, and that judgment is consistent with my own relatively modest brushes with that world.

      So if I were suddenly made the czar of US cointel & held Sheldon Whitehouse’ regard for SigInt, I’d do my best to convince the main presiding judge on FISC that Page is a living breathing mobile perpetual icon magnet to foreign actors of all manner of intent who hold ambitions and even plans that do & should concern national security.

      I just don’t think he’s left behind any fingerprints at any crime scenes; I’m inclined to doubt he even works near those. I look at him as above world flypaper to patronize oligarchs, not just Russian but American, to put their money in projects that carry OTOH big risks yet OTO promises of either big rewards or, at the very least, a VIP side entry into the laundromat. And dramatically increasing the chances against him ever leaving fresh DNA at a crime scene, I think he works the Tax Incentive-ized New & Emerging Projects angle, the one that involves attending & working conflabs, writing op-ed & delivering speeches.

      But hey: I’ve been wrong before. So, what am I missing here?

  17. jayedcoins says:

    @bmaz, I am wondering if the “keeping his family safe” report might line up with your persistent questioning of where the pressure on Kathleen’s legal exposure has been. Do you have any thoughts on that?

  18. oldoilfieldhand says:

    Did Gates inform Mueller that Putin wanted Rex Tillerson for SOS, or was that one of the gems that Manafort was able to trade for protection for his family. Also too, who wants Pence for $200 in the next round of Witch Hunt Jeopardy?

  19. pseudonymous in nc says:

    Flynn’s next status report is due… on Monday. So that may shift up a gear, too, if they’re ready to move towards sentencing.

  20. maybe ryan says:

    Did a Chicago bank go bust today in the wake of the plea agreement? I thought Federal Savings Bank had committed the bulk of its capital to the Manafort loan. And the agreement seems to strip Manafort of the both the cash that might have given him means to repay, and the house that was collateral for the loan. Kind of gives “collateral damage” a new meaning.

      • SC says:

        “It’d be nice to know what Steve Calk got . . . ”

        Good point. There are number of things likely to surface in the next Manafort trial(s) that would have been, as you say, “nice to know”. IIRC, a surprising number of banks (in a quick Google, I see Fed Savings Bank, Bank of California, and Citizens Bank) were involved in dodgy Manafort doings. Also, Cohen’s banking, at perhaps even more banks than Manafort, was iffy, at best. Does all of that stuff just disappear now that there’s no trial? Charges can’t be brought against the bankers who were given immunity to testify against Manafort and Cohen, right? (I hate to ask “Will the banks/bankers will be given a slap on the wrist and that’s that?” because I can’t remember the last time I noticed a bank/banker getting slapped for anything.) Without more charges and trials, etc. how will we learn the details of Calk’s attempt to buy a position in the Trump WH? How will we know how involved the banks might have been in Manafort’s, um, business?

        A larger question that I’ve been scratching my head about: If Mueller is telling the story of Russian involvement in the 2016 election through indictment paperwork and trials, etc. how will Manafort’s story be told if he avoids future indictments and court appearances. I guess he can tell his story on the witness stand at Roger Stone’s trial but what happens when Stone pleads guilty? Is there some mechanism I’m missing for Manafort’s tale to make it the public? At this point, Mueller theoretically can put a recorder on the interview table and ask Manafort to tell his story from the beginning and Manafort can talk for a few days. The Justice Dept. “owns” Manafort’s story but . . . how does that story make it to the public? (Perhaps this has been answered at length elsewhere but if so I’ve missed it.)

        • Bob Conyers says:

          Congressional committees can call him in to testify under oath. Congressional investigators won’t be bound by the need to focus on getting a conviction, and can look at questions as broad as “what sketchy activities can influence peddlers get away with under our current laws?”

          It will be interesting to see how those go if the Democrats retake the House. I suspect the GOP will still be in denial and try to trip things up on trivia and conspiracy theories, the way Nunes has been operating.That’s going to be a very tough thing to sustain in the face of a flood of damning evidence.

          There’s a risk in these things of Congress stepping on the toes of prosecutors, but in this case I think Mueller will get the space the needs.

          • Tracy says:

            Won’t we hear Manafort’s story – key parts, anyway – in indictments of the pack of June 9thers, anyone in pre-meetings or on campaign (like Papa.) involved in conspiracy – and eventually of DJT – in recommendation to the AG for indictment, or recommendation-for-impeachment-report to AG for Congress?

            Even if the OSC recommends indictment, and the AG disagrees, it triggers an automatic report to Congress (and by extension, to the American people) on what happened in the disagreement, as per Neak Katyal who wrote these rules for DoJ. So seems like the American public will have all conspiracy points laid out, at least.

            Bob’s ideas about congressional hearings sound good.

          • SC says:

            Ah, right. Congressional hearings/reports. Doh. Yes, I guess I’m so used to having a GOP congress that the idea of real hearings/reports just didn’t occur to me. Hopefully, that will change this fall.

            However, that said, even if the Dems create detailed and accurate Majority hearings/reports, it’s going to take years to get the whole story. Parts of the tale will be tangled up in court cases (that the House will have to tiptoe around) and perhaps even larger parts are likely to be conducted behind closed doors for security reasons.

            Thinking back, the closest similar report I can think of is Walsh’s IC  Iran-Contra account. That started in 1986 and was finally published in 1993. The GOP hid various documents along the way (Weinberger was _reindicted_ in 1992 for hiding documents) and it took years for the dust to settle. Assorted declassified and leak documents were published by FAS and the New Press in 1994/95 that not only confirmed much of Walsh’s report but indicated that the GOP had successfully hidden various parts of the operation. Iran-Contra was far less complicated than the 2016 election interference by Russia and Walsh was _supposed_ to write a report and he (and various Congressional committees) had significant resources to track down what went on and a mandate to present that information to the public.

            I hope Dems are thinking through how, if they take the House this fall, they will devote resources to a public report about the Russian election interference (and related issues, NRA infiltration, for example). There are numerous obvious hurdles to overcome, misleading congressional reports already released and being prepared, large slices of the investigation that are classified, a vast complicated set of events, and a wildly hostile GOP, for example. To put together a report along the lines of, say, the 9/11 report (not a particularly good example but, sadly, one of the only recently examples of a detailed congressional report I can think of), it’s going to take significant resources and years of work. I realize that the GOP will fight it tooth and nail but congress and the public need an accurate account of what happened to give us a chance of avoid similar problems in the future.

  21. Kim Kaufman says:

    I’m replying to the comment above, “who wants Pence for $200 in the next round of Witch Hunt Jeopardy?” (reply not working). Saddest thing I read all day was Marcy tweet that she didn’t see any jeopardy for Pence.

    Maybe Manafort and Madoff can have adjoining cells and trade stories about how they ran out their last game.

    • Tracy says:

      We have to look in Woodward’s book, apparently Pence was in meetings post-Sally Yates’ coming to WH re: Flynn (I don’t know if this was pre- or post- “he lied to me”).

  22. Lee Christensen says:

    I found Marcy’s comment confusing that “It’s a lot harder to pardon someone for spying than to pardon him for obstruction and financial crimes.” I thought the presidential power to pardon was pretty much unchecked for federal crimes. Why would one type of crime be harder to pardon than another?

    • earlofhuntingdon says:

      The bad PR would be more damaging a few weeks before a mid-term election.  If Trump waits any further, a pardon becomes useless:  Paulie will have spilled the beans and given up what documentation he might still have.

      There is also the issue of whether the pardon power can be used to commit a crime, such as obstruction of justice.  That is especially troublesome where the pardon is obstructing an investigation into the president’s own conduct and the way he became president.

      That pretty much fits the description of outrageous monarchical behavior that drove American colonists to rebel against George III.  I think a majority of legal minds believe that while the pardon would be valid for the pardonee, it would be a crime for the president to issue it. 

      One lawyer who would probably disagree with that conclusion is named Brett Kavanaugh. That’s probably true of every other lawyer on the FedSoc’s shortlist for Supreme Court nominees.

      • orionATL says:

        earl of h –

        “That pretty much fits the description of outrageous monarchical behavior that drove American colonists to rebel against George III.”

        hey earl, this would be a great campaign theme for dems this fall:

        “trump is just like george III – monarchical (obscenely trashy gold living standard)) and tyrannical (press penning and personal lawlessnes)”

        put it on billboards! repeat it in talk shows! George III monarchical and tyrannical

            • Avattoir says:

              George III’s bouts of mental distress didn’t start for years & years after the Revolutionary War; there’s no basis for concluding that they had anything at all to do with England’s policies leading up to and its prosecution of the hostilities.

              After cutting off Charles I’s head, the single most constitutionally empowered figure in Brit history was Oliver Cromwell, Lord Protector during the Roundhead Parliament. Certainly England has never had a more powerful monarchy than “constitutional” (subject to norms & the Houses of Lords & Parliament) since William & Mary.

              The Hanoverian Dynasty, of which G3 was a member (as is their current queen, largely) never had the amount of power hold by the Lords & Parliament combined, and often not even that of Parliament alone. The big Brit counting and foreign trade houses ‘owned’ much of Parliament like the GOP does, & played the monarchy like a cheap violin at every chance. And all thru the run up to their “War in the Colonies”, there was constant back-stabbing, bickering and disagreement among Brit Parliament, the PM, the Foreign Secretary (repository of so much more centralized power than any other individual in Imperial Britain that the prime minister often kept it for himself), the Lords, the counting & foreign exploitation houses and Lloyds.

              G3’s main concerns were image (Again, his family had been brought in by Brit Parliament, and could as easily be bumped off.) and the fact that all the other playahs found it irresistible not to assign & fob off all debts and effective losses on the Royal Exchequer  book (the King’s purse). So G3 really had no choice but to pursue “His” American Colonies for taxes and rebellion, as otherwise the rest of the political and financial powers in England were going to make him pay in some way even the ultimate.

              In the end, certainly the tea incident and, before that my supposition is, most of the series of increasingly onerous taxes imposed by the English, were really more the doings of English counting & foreign exploitation houses, and their Man in government, Fred North, Architect of the Coercive Acts.

      • bmaz says:

        Also, I can pretty much guarantee Mueller already, through proffer and debriefing, has the lion’s share of goods from Manafort. And he has them to such an extent that Manafort cannot walk away from it. He is baked in at this point.

        • Tracy says:

          Bmaz – how much is being said at this point b/t Manafort’s and Trump’s lawyers? Is PM’s lawyer telling RG what he’s said? (is he out of JDA?)

          Also, why does Dowd have anything to do w/ anything anymore? (writing to JDA participants that Manafort has nothing… why?)

      • Bob Conyers says:

        To add to that, jockeying for the 2020 election starts now. Trump almost certainly will face a primary threat, and it will be hard for a GOP opponent to avoid beating the drum for the investigation if they want to win in the general election, and spying makes that kind of drumbeat more likely.

        I also think the aftermath of the midterms is going to have some Republicans rethinking the current calculation that they have more to worry about GOP primary opponents than Democrats in the general.

        I doubt that alone gets the Senate to the 2/3 needed to convict. But any serious internal dissent (I’m not talking about the joke that is now represented by Kristol and Erickson) puts Trump at a big disadvantage.

  23. dedalus says:

    Why not just convey the crucial info privately via the joint defense agreement between Manafort and Trump? It doesn’t make sense that it needed to be in the public record to get to Trump. Unless Trump’s lawyers are sooo incompetent that they can’t transmit a simple message.

  24. Blackheart says:

    I have the exact same as dedalus. I’m assuming that the protective order that Downing signed prohibited this, and if it came to light that Manafort’s lawyers had shared this info privately that it would be Downing that would suffer the consequences, not Manafort?

    Can someone clear up the relationship between the JDA and the protective order?

  25. harpie says:

    Yesterday on Twitter Marcy responded to @StanleyCohenLaw:

    SCL 6:56 PM – 14 Sep 2018 3/statements in furtherance of the conspiracy are an execption to the hearsay rule once prima facie conspiracy is established and the participation of declarant. Confrontation the only limit & statements by unindicted coconspirator i.e. the president are admissible as 2 others.

    emptywheel: 7:03 PM – 14 Sep 2018 Yup. Hearsay exception is going to light up the Trump conspiracy.

    …ordering popcorn now…

    • Bob Conyers says:

      Can someone unpack this for us non-lawyers?

      I have a basic sense of hearsay, but I’m quite foggy on how it’s admissable here, and even more, why it’s such a threat.

      • bmaz says:

        See Rule of Evidence 801 d2E:

        (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

        (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

        (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

        (B) is consistent with the declarant’s testimony and is offered:

        (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

        (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or

        (C) identifies a person as someone the declarant perceived earlier.

        (2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

        (A) was made by the party in an individual or representative capacity;

        (B) is one the party manifested that it adopted or believed to be true;

        (C) was made by a person whom the party authorized to make a statement on the subject;

        (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

        (E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

    • orionATL says:

      i had just read that manafort had pleaded guilty to two counts, one of which was conspiracy to defraud the u.s. that seems to me to be a very important outcome for the osc team.

      i’ve never been too sure of that particular charge re a jury’s decision, though i no doubt mueller’s team (who actually know the law :) ) have confidence in their decision to deploy it.

      at the very least now, manafort’s guilty plea sets up confraudus as the hurdle other conspirators better be able to jump cleanly over or it’s a face full of dirt and time in the slammer for them.

  26. Trip says:

    Marcy, I think you retweeted something yesterday about Dowd emailing all of the people in the JDA that, paraphrased, ‘Manafort doesn’t know anything about the campaign’ (which is insane on the face of it since he was a campaign chairman, but I digress).

    Doesn’t Dowd put himself at risk of obstruction? He quit. He is no longer Trump’s attorney. Isn’t everything he says AFTER resigning not under attorney/client privilege? Plus, it may be have been an utterance in the furtherance of a crime: obstruction, (keeping everyone zipped without being privy to Manafort’s cooperation)?

    • Trip says:

      Apparently not.

      In case anyone is interested:
      Id.at 392; see also IBJ Whitehall
      Bank and Trust Co. v. Corey & Associates, Inc., 1999 WL 617842, at *3
      (M.D. Ill. Aug. 12, 1999) (joint defense privilege cannot be waived without the consent of all parties to the defense, except when one of the joint defendants becomes an adverse party in the litigation).
      Because cooperating with the government, and even testifying against a former joint defense member, is generally not deemed “actually adverse” to the interests of other joint defense members, it does not trigger a waiver of the privilege. Instead, even when one defendant agrees to cooperate with the government and testify against his co-defendants, the assumption is that joint defense information will remain privileged, and will not be useable against the producing party.

      THE HENKEDECISION •
      In United States v. Henke
      , 222 F.3d 633 (9th Cir. 2000)
      https://durietangri.com/sites/default/files/drafting_0.pdf

      Joint defense agreements: the benefits and the risks
      https://www.americanbar.org/news/abanews/aba-news-archives/2013/07/joint_defense_agreem.html

      • bmaz says:

        First, let’s stick to criminal context as opposed to civil. Second, much depends on the nature of the JDA. Without seeing the language there is simply no way to know how it might be enforced. Lastly, I have issues about a JDA where most of the 37….37….people involved are not even defendants per se.

        There is no easy answer at this point to this question. Googling stuff will not help that fact.

        • Trip says:

          I’m not a lawyer. I’m just trying to understand. And yes, that 37 people are involved is both astounding and incomprehensible.

          • TheraP says:

            Could we add disturbing?  (Thanks for asking these questions, Trip!)

            I honestly hope it’s also a sign of 37 very anxious possible defendants.   (Or conspirators?)

            • Tracy says:

              Defendants vs. witnesses (as I think these 37 were described), that is interesting.

              It all seems v wrong headed!! Aren’t there ethics people all over this?

              But yeah, what happens now re: that JDA/ people still in/ why Dowd still involved/ what happens w/ Manafort sounds v unclear from all the comments I’ve read here, and perhaps impossible to know w/out seeing the actual JDA. Well, I look forward to a future post about it ;)

    • earlofhuntingdon says:

      This gets complicated, but the short version is that Dowd is bound by the attorney-client privilege to keep confidential permanently information he learned about during the representation.

      There are few exceptions.  One is that if the client and attorney litigate the bill or something else regarding the representation, then the privilege – which is the client’s – is deemed waived by the client.  That is, the attorney is able to use information learned during the representation to defend herself against claims made by the client.

      After Dowd’s representation of Trump ceased, he would have to keep confidential whatever he learned during the representation, where that information is covered by the privilege.  Their private discussions, for example, would be covered.

      Discussions in front of non-lawyers – other than Dowd’s staff or people working for him in connection with the representation (e.g., an accountant) – or lawyers not acting for Trump and not bound by a joint defense or similar agreement with Trump, would not be covered. If Trump opens up about privileged information in front of his own staff, for example, then he’s waived privilege.

      The usual course for a lawyer, post-representation, is to keep shtum about it.

        • Tracy says:

          And Earl, do you know why according to Maddow (I think from Fear) Ty Cobb does NOT have privilege w/ Trump – why Cobb can be called as a witness – and why when T learned this he was like: oh shit, I told him a lot of stuff.

          • bmaz says:

            Cobb worked in the White House Counsel’s office. The represent the office, NOT it’s occupant, in this case, Trump. McGahn and Flood have the same issue.

          • earlofhuntingdon says:

            Because the Don is a cheap shit.

            Supposedly, he brought Cobb on to be his personal lawyer.  That would have created an attorney-client relationship and covered their qualifying exchanges of information by attorney-client privilege.

            Brave, brave Sir Donald, however, doesn’t know one end of a horse from the other.  And he never pays for feeding and watering it when he can stick someone else with the tab.

            In this case, Donald seems to have put Cobb on the White House payroll – taxpayers paid the tab for Ty.  Cobb seems not to have noticed, which would seem to be negligence per se.

            Cobb working for the White House meant that he worked for the presidency, not Donald Trump personally.  Their relationship created no attorney-client privilege.

            A few of their conversations might be covered by executive privilege.  But to the extent they talked about how to protect Donald from criminal liability, that’s personal, not presidential. The Don might as well have been talking to a bus conductor.

            • Tracy says:

              TY, Bmaz & Earl. It would be nice if Trump spilled something (or a lot) to Cobb that he then shared w/ the OSC, although DJT seems to have lied to his lawyers all along. But it’s an interesting idea – and absolutely amazing that T didn’t even know who he had privilege with! What a nightmare he’d be as a client for a lawyer.

      • earlofhuntingdon says:

        See above.  Since Cobb worked for the White House, not Trump, their conversations are not privileged.

        If Cobb was not Trump’s lawyer, and he learned information by way of JDA information exchanges, is any of that confidential?

        Presumably, the terms of the JDA would independently cover the lawyers as well as the clients.  The JDA participants can only hope it wasn’t drafted by Mickey Cohen.

        • bmaz says:

          I have never encountered the issue. I would argue “no” though like it is any other attorney client situation, if shared with others, privilege is blown. Also, if the issue is obstruction, keep in mind the crime fraud exception as to all these yokels.

  27. Aneela says:

    Marcy,

    “Had he succeeded, perhaps Trump would have recognized the jeopardy that put Manfort (and, presumably, himself) in. Perhaps he would have taken that moment to pardon Manafort, and save him from that jeopardy.”

    Not understanding why, since they were in a joint defense agreement, Manafort’s lawyers couldn’t just inform Trump’s lawyers of what Rick Gates had given up rather than having to go through the circuitous route of reading into the public record?

    • Trip says:

      Aside from what he knew or didn’t know, or the potential pipeline, it would seem that they were keeping the JDA on the down lo, at least as far as the public was concerned. Who knew until a few days ago? It looks kind of bad when some are convicted of crimes, and the others look guilty by association, in a sense, since they considered their interests ‘equal’ via the agreement. I realize that is perception more than fact, but in politics perception is everything.

      Trump was kind of between a rock and hard place with the pardon. If he had done this before the midterms and before Kavanaugh was brought up, the public perception would have been that of guilt and obstruction. That would make Kavanaugh’s appointment even more loaded. I think the GOP wouldn’t let him do it when it would have served him best (because they were invested in their own agendas), and threatened to withdraw support from him (someone like McConnell comes to mind).

        • Trip says:

          So then Rudy shouldn’t have should have kept it shut, as usual?

          Does the gov’t typically know before trials, or is this something they learn during the trial? Or perhaps, is it something that is attempted to be kept secret throughout?

          • bmaz says:

            Government may or may not directly learn of a JDA, but usually do not get affirmatively told. More often they can just guess by how their interactions with the lot of the defendants’ attorneys goes.

            • TheraP says:

              Since some of these 37 are in this Defense Agreement as parties to a conspiracy, and at least one of them is a known serial liar (even to an attorney), does that potentially make this “agreement” also part of a conspiracy? Or Obstruction of Justice? And if so, would that allow Mueller or a Grand Jury to pry into some of this?

              (Hold your fire, please. I am a tender, if naive, soul and not out to incur your wrath. Or to disturb the flow of information here.)

              Thanks for whatever help you can provide. (As somehow this grand effort – of alleged conspirators – to collaborate on defense feels disturbing to me. Also to Justice being done.)

  28. Trip says:

    Do we think the stipulation in Manafort’s cooperation agreement to offer info to the gov’t without his attorney(s), frees them (lawyers) from negative consequences associated therein with the JDA? Or does it not matter since the attorney agreed on behalf of Manafort?

    *I know this is probably a very dumb question, but not being a lawyer, I’m having full comprehension issues.

    • earlofhuntingdon says:

      Manafort has pled guilty and waived having his lawyer with him during his “debriefing” by the Feds. By definition, he’s chosen to leave the JDA.

      Short of committing an unrelated crime or lying to the Feds during his debriefing, there’s no further jeopardy for Manafort.  Failing to cooperate fully could mean voiding the plea agreement or facing a harsher sentence.

      After the journey he’s been on, he would seem ready to cooperate and would likely talk more freely without his lawyer.  It’s also one more person not privy to what he says and to what the Feds disclose they are interested in, which makes Mueller’s project less leak prone.

    • Avattoir says:

      Think it thru: Whose privilege is it? It’s the client’s.

      The client is free to say, Mister Darrow, I choose to go to the washroom without your legal counsel.

      An attorney cannot speak about the case with his client’s opposing number unless the other’s attorney is present (Some years ago I ran into this problem with the folks who had seats next to ours for the orchestra; had to trade down for crappier seating for a while.). Opposing parties’ attorneys can only converse about the case in their respective client’s best interests.

      Yet, clients can always talk to clients. There’s no Professional Clients bar.

      And if it’s the client’s FREELY GIVEN, DULY INFORMED & ADVISED desire to cut his own attorney out of something, so be it.

      His own attorney, however, remains bound by privilege.

      This sort of exercise might help the IANAL crowd understand why I often get frustrated with folks who comment, His lawyer should NEVER have allowed that, or His lawyer should have told him NO – NO; BAD CLIENT; HEEL!

      Client’s the principle, the boss, whose problem it is, and who’s paying the freight: attorney’s the consulting agent, her obligation’s are inescapably professional, and it’s the client’s tab.

      • bmaz says:

        Yeah. Manafort talks about anything and everything to SCO and whatever else prosecutor/agency is specified. If some other defendant within the putative “JDA” wants to challenge admissibility based upon privilege down the road, let them try, but that is on them. There would then be a hearing, and good luck with that other defendants.

    • TheraP says:

      To evade the fire wall, erasing history and cache generally works for me. Either that or set up an account to post. (That’s still free, I believe.)

  29. Thomas says:

    From what I piece together from public information:

    It seems likely that the back and forth between Russians and the Trump campaign was not direct communications between individuals, but rather, one individual (Manafort, eg) would send a message to another (Kiliminick, eg), who would then share it with a group(Russian Intel, oligarchs, Putin) and a different individual from that group (Russian official, eg) would then give the answer to another individual (Carter Page, eg) who would then transmit the answer (to Manafort, eg)

    This may be the way that Manafort, JD Gordon, Page handled the “Memorandum of Understanding” or quid pro quo, of the conspiracy.

    If I’m right, then the GOP platform change was a show of good faith about the future quid pro quo arrangement to lift sanctions, and Trump’s  “Russia if you are listening” statement was a signal for the Russians to begin executing the campaign assistance.

    This is also the likely way that the whole NRA/Butina/Gordon scheme was coordinated, and THAT is the likely scheme alluded to in Manafort’s notes about RNC fundraising during the Trump Tower meeting.

    If I am right, Gordon and Page are next, not Don jr or Stone.

    Not discussed by anyone yet is the connection between Flynn and Gordon. Flynn was the person handling the sanctions relief payoff after the election.

    I think it’s likely Flynn was a lot more instrumental in the entire conspiracy than has heretofore been revealed.

    It would explain why prosecutors keep putting off sentencing Flynn over the initial charges, and why they keep on questioning him as they learn more from other witnesses.

  30. Thomas says:

    Recently I read everything I could find about the Seth Rich conspiracy theory.
    Everyone involved in that cover story to divert attention away from the DNC hack by the GRU has been under investigation by the Special Counsel, including Jerome Corsi.
    Jack Burkman (a Trump campaign fundraiser and associate of Rick Gates!) went to extraordinary lengths to push that conspiracy theory.
    I watched the press conference Burkman held with a “witness” who by telephone told Wapo, Daily Beast, and many other skeptical journalists that Seth Rich was killed by federal agents connected to Rod Rosenstein and MS13.
    Shortly after that, Mueller’s indictment of 12 Russian military officers for the DNC hack completely destroyed the Seth Rich conspiracy theory.
    After that, the Rich conspiracy theorists went silent.
    It is plain to me that Stone, Hannity, Burkman, Butowski and Fox News (and others!) ALL carried water for this conspiracy theory which was a Russian disinformation operation.
    It’s clear to me that Roger Stone was deeply involved. I am waiting with anticipation for Hannity to go down, too.
    I think this part of the story won’t materialize until after the election though.

    • Tracy says:

      Thomas, I like your previous post, and I hope they can nail Hannity and the rest of the conspiracy peddlers, just sayin. Thanks!

      • Avattoir says:

        Here’s the thing: when Marcy Wheeler posts some big deal conclusion, analysis, timeline, prediction, whatever, she ALWAYS shows her work.

        That’s like standard practice in the sciences and forensics: you don’t go off making assertions of fact OR EVEN wild crazy ass predictions unless you SHOW YOUR WORK.

        “Thomas” has not shown his work. To me, a lot of, maybe most, I dunno I have trouble drawing clear lines between his them, of his assertions look between unlikely to nuts. And ALL of them are just THROWN UP like so much conspiracy th’eerie.

  31. Philip Rhodes says:

    One consideration that I haven’t seen mentioned – where will Manafort be located during the course of his cooperation?  Unless I’m missing something I don’t think he’ll be in jail. (?)  He may think (and rightly so) that that his contributions to the investigation may last for at least a year if not longer. Having spent the last few months in prison, he may place a high value on this period of relative freedom.

    • pseudonymous in nc says:

      There wasn’t a motion to alter the bond, and the issue of EDVA sentencing is still unresolved. Every day he spends in the Alexandria jail is: a) a day that can be counted as time served against a final sentence; b) a day that limits his exposure to polonium tea.

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