Donald Trump’s Bubble May Be Robert Mueller’s Greatest Weapon

Robert Mueller has a slew of really good lawyers working for him. But I think his biggest asset is Donald Trump’s bubble.

Consider this NYT story, in which a bunch of lawyers anonymously blame each other for getting 16 months into the Special Counsel investigation without ever figuring out what the President did.

The lawyers have only a limited sense of what many witnesses — including senior administration officials and the president’s business associates — have told investigators and what the Justice Department plans to do with any incriminating information it has about Mr. Trump, according to interviews with more than a dozen people close to the president.

What is more, it is not clear if Mr. Trump has given his lawyers a full account of some key events in which he has been involved as president or during his decades running the Trump Organization.

[snip]

Mr. Dowd took Mr. Trump at his word that he had done nothing wrong and never conducted a full internal investigation to determine the president’s true legal exposure.

[snip]

And once Mr. Dowd was gone, the new legal team had to spend at least 20 hours interviewing the president about the episodes under investigation, another necessary step Mr. Dowd and his associates had apparently not completed.

In spite of the effort to blame all this on Dowd, the NYT article provides abundant evidence (which they, in typical Maggie and Mike fashion, don’t seem aware of) that Trump’s lawyers continue to be clueless.

There’s the notion that just 20 hours of Trump interviews would be sufficient for nailing down the actual story. Don McGahn, after all, has had 30 hours of interviews with Mueller’s team, and while he has played several central roles, he’s not the principal. And, unlike Trump, he can and presumably did tell a mostly consistent story.

There’s the admission that Trump’s lawyers actually don’t know how ten senior officials testified.

During Mr. Dowd’s tenure, prosecutors interviewed at least 10 senior administration officials without Mr. Trump’s lawyers first learning what the witnesses planned to say, or debriefing their lawyers afterward — a basic step that could have given the president’s lawyers a view into what Mr. Mueller had learned.

Complain all you want that Dowd didn’t obstruct competently. But the Joint Defense Agreement (the one that gave Rudy no advance warning that Paul Manafort had flipped on the President) is what Rudy has always pointed to to justify his confidence that Trump is not at any risk. So Rudy is, by the standards of the anonymous people leaking to Maggie and Mike, just as incompetent.

Perhaps best of all is the claim of an anonymous Maggie and Mike source that poor Jay Sekulow was left to clean up after Dowd’s, and only Dowd’s, mistakes.

In March, Mr. Dowd resigned, telling associates that he disagreed with the president’s desire to sit for an interview with Mr. Mueller — one form of cooperation he opposed — and leaving Mr. Sekulow with the task of rebuilding the legal team from scratch, and without knowing many of the details of the case. Mr. Dowd left few notes or files about the case, which had to be recreated months after the fact.

Somehow, Ty Cobb, the guy brought in after Marc Kasowitz left amid concerns that Trump was obstructing justice, who oversaw responding to discovery requests and who was initially celebrated as being very aggressive, gets no blame. Cobb was the guy who put McGahn in a defensive crouch — leading directly to 20 of his 30 hours of testimony — after blabbing in public about him hiding documents.

Crazier still, Jay Sekulow gets no blame in this narrative, even though Sekulow was around during all of Dowd’s purportedly mistaken decisions. As recently as March, Sekulow was quite confident that his undeniable expertise in litigating the right wing’s ressentiment prepared him to deal with the challenges of a Special Counsel investigation.

When Jay Sekulow joined President Donald Trump’s legal team for the Russia investigation last summer, he was largely expected to serve as the public face of the group. But after former lead attorney John Dowd resigned last week, and with other top lawyers reportedly reluctant to join the team, Sekulow is now the key player in one of the most high-stakes investigations in the world.

“I have maintained since the beginning of the representation that my interest is representing the client,” Sekulow tells TIME. “And it may take different forms at different times, and we’re just right now in a different phase.”

[snip]

Peter Flaherty, who worked for Romney on both campaigns and has known Sekulow for more than a decade, offers effusive praise for Sekulow that draws on the world of Boston sports.

“Jay is a combination of Bill Belichick and Tom Brady, wrapped into one super-lawyer,” Flaherty says, citing the New England Patriots’ coach and quarterback. “He is capable of both devising successful strategy in a conference room, as well as being able to execute it in a courtroom.”

Critics say that legal expertise in high-minded constitutional issues won’t translate well to the guts of a criminal case. But Sekulow says he feels his “broad background” in the law has prepared him for the current challenge, citing a recent case he worked on in which the IRS admitted to unfairly scrutinizing tax forms of conservative groups.

In the wake of Manafort’s plea deal, Sekulow seems less certain he’s got control of the situation.

Here’s the thing though. This is a 2,100-word story presented as truth, disclosing evidence (albeit unacknowledged) that the lawyers who have serially managed press outreach (Sekulow, then Rudy) are clueless. It repeats, as Maggie and Mike always do, two key threads of the spin from these men: that Trump’s only exposure is obstruction and that the end result will be a report.

[Manafort’s] plea brings to four the number of former close associates of Mr. Trump who have agreed to cooperate with Robert S. Mueller III, the special counsel investigating Russian interference in the election and obstruction of justice by the president.

And while Mr. Trump’s lawyers insist Mr. Mueller has nothing on their client about colluding with Russia, they are bracing for him to write a damaging report to Congress about whether the president obstructed justice.

[snip]

The sense of unease among the president’s lawyers can be traced, in part, to their client. Mr. Trump has repeatedly undermined his position by posting on Twitter or taking other actions that could add to the obstruction case against him.

[snip]

Even after Mr. Mueller’s appointment, Mr. Trump did things like ask witnesses about what they told Mr. Mueller’s investigators and put out misleading statements about contacts between his campaign and Russia, which appear to have deepened the special counsel’s examination of possible obstruction.

A mere review of Jay Sekulow’s own list, drafted in March, of questions Mueller might ask Trump, should make it clear to anyone exercising a tiny degree of skepticism that the claim Mueller is exclusively focused on obstruction is utter nonsense. And after the speaking criminal information released with Manafort’s plea, the expectation of a report should be treated far more critically.

But it’s not.

In an article about how Trump’s lawyers, generally, are clueless, and demonstrating though not reporting that the lawyers providing information to the press are part of that general cluelessness, Maggie and Mike don’t pause to reflect on whether that leaves them, too, clueless.

So when Trump tries to understand his plight by reading Maggie and Mike, he would believe a fiction largely created by the lies he has already told his lawyers and his preference for PR rather than solid legal advice.

Of course, it gets worse from there. Trump has benefitted from nine months of Devin Nunes-led intelligence, fed both via staffers and through a stable of incompetent right wing stenographers, about the investigation. I know for a fact that the most competent Republicans who have read the most investigative documents do not have a grasp about either the scope of the investigation or how it evolved (though someone at least understands that after August 1, 2017, the investigation got far more risky for the President).

But when you take that misunderstanding about the investigation and launder it through incompetent hacks like John Solomon, then the picture it provides is even more misleading.

Which led us to Trump’s decision on Monday to declassify a bunch of stuff.

That led Mark Warner, who has a better though still incomplete understanding of the potential risk to Trump, to quip, “Be careful what you wish for,” suggesting that the documents might be very incriminating to Trump.

Batshit crazier still, Trump went on to do an interview with the aforementioned John Solomon. (The Hill, unlike the NYT and virtually all other outlets, has the dignity to label interviews where Trump tells reporters a bunch of bullshit “opinion.”) In it, Trump suggests he had the authority and should have fired Jim Comey they day he won the primaries (an interesting suggestion by itself as Mueller appears to be investigating Roger Stone’s activities from that time period), which would likely have resulted in a Hillary win.

“If I did one mistake with Comey, I should have fired him before I got here. I should have fired him the day I won the primaries,” Trump said. “I should have fired him right after the convention, say I don’t want that guy. Or at least fired him the first day on the job. … I would have been better off firing him or putting out a statement that I don’t want him there when I get there.”

Crazier still, Trump admits that he has no idea what is included in the vast swath of documents he has already ordered to be released.

Trump said he had not read the documents he ordered declassified but said he expected to show they would prove the FBI case started as a political “hoax.”

“I have had many people ask me to release them. Not that I didn’t like the idea but I wanted to wait, I wanted to see where it was all going,” he said.

In the end, he said, his goal was to let the public decide by seeing the documents that have been kept secret for more than two years. “All I want to do is be transparent,” he said.

As I’ve noted here and elsewhere, even careful readers, to say nothing of the frothy right, have little visibility on how this investigation evolved (even the tiny bit more visibility I have makes me aware of how much I don’t know). If the smartest Republican upstream of Trump’s concerns about the genesis of the investigation doesn’t understand it, then far stupider Congressmen like Mark Meadows, who hasn’t reviewed all the documents, is surely misrepresenting it.

And yet Trump, from within the bubble of sycophants, clueless lawyers, and credulous reporters is blindly taking action in the hope of undercutting the pardon-proof plea deal of his campaign manager.

Update: Thanks to those who corrected my error in the bracketed description of the fourth plea.

As I disclosed in 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. 

Trump Wants Voters — and Russia — to Know What the Russia Investigation Looked Like on August 1, 2017, not September 14, 2018

Between setting the first status hearing in Paul Manafort’s case as November 16, and setting the Mike Flynn sentencing for no earlier than November 28 (with the reports submitted on November 14), Mueller’s office seems to be suggesting they’ll wait until after election day to roll out the case they just added Trump’s Campaign Manager’s testimony to.

Not long after the release of the Flynn status hearing, Trump ordered the release of yet more stuff on the Steele dossier (the stuff in the first paragraph), plus unredacted texts on what the investigation looked like before August 1, 2017.

At the request of a number of committees of Congress, and for reasons of transparency, the President has directed the Office of the Director of National Intelligence and the Department of Justice (including the FBI) to provide for the immediate declassification of the following materials: (1) pages 10-12 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page; (2) all FBI reports of interviews with Bruce G. Ohr prepared in connection with the Russia investigation; and (3) all FBI reports of interviews prepared in connection with all Carter Page FISA applications.

In addition, President Donald J. Trump has directed the Department of Justice (including the FBI) to publicly release all text messages relating to the Russia investigation, without redaction, of James Comey, Andrew McCabe, Peter Strzok, Lisa Page, and Bruce Ohr.

Depending on how much the various parties put into these texts (I doubt Comey was much of a texter, for example), this will show unbelievable detail on how FBI runs counterintelligence investigations.

But it will also show voters what the investigation looked like before some key evidence came in, such as the communications surrounding the June 9 meeting and whatever the FBI seized from Paul Manafort’s home. Andrew McCabe was the last person in a key role on this investigation, and Christopher Wray took over that role on August 1.

It’s a desperate gambit, I think, throwing the last of the Steele dossier details out there, plus a picture of what the investigation looked like before the FBI learned that the President’s son entered into a conspiracy with Russians exchanging Hillary emails for sanction relief.

Which I take as yet more confirmation that that conspiracy — and whatever Manafort just gave the government — would (will, eventually) utterly damn the President.

As I disclosed in 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. 

Manafort Turns State’s Evidence: “It’s Time for Some Game Theory”

It took a day for the President to complain after his former campaign manager, having spent the week proffering up testimony, flipped on Friday. When he did, Trump tied the Mueller investigation to polls (and upcoming midterm elections) for the first time in a Tweet.

Of course, his freebie legal PR hack, Rudy Giuliani has been tying midterms to the investigation for some time in his insistence that no indictments can come between now and then. Rudy should be happy, then, that Paul Manfort’s plea avoids a four week trial for Trump’s campaign manager right in the middle of election season.

But he’s not.

I mean, at first, Rudy put a brave face on things Friday, claiming,

Once again an investigation has concluded with a plea having nothing to do with President Trump or the Trump campaign. The reason: the President did nothing wrong and Paul Manafort will tell the truth.

But almost immediately after making that statement, Rudy took out the part about Manafort telling the truth.

Roger Stone, who’s shrewder than Rudy, immediately suggested anything Manafort may be saying (or may already have said) implicating him would be a lie.

I am uncertain of the details of Paul’s plea deal but certain it has no bearing on me since neither Paul Manafort or anyone else can testify truthfully that I am involved in Russian collusion, WikiLeaks collaboration or any other illegal act pertaining to the 2016 election.

Though of course, Stone’s seeming awareness that Mueller might pursue Manafort testimony about Stone reveals his brave comment for the lie it is.

I’m more interested, however, in Rudy’s (and John Dowd’s) apparent desperation to stave off a mass prisoner’s dilemma.

Manafort first proffered testimony Monday, September 10. Rudy was still boasting about how much he knew about Manafort’s thinking for a Thursday Politico story — though he based that off conversations before and after the EDVA trial, which had ended three weeks earlier.

Giuliani also confirmed that Trump’s lawyers and Manafort’s have been in regular contact and that they are part of a joint defense agreement that allows confidential information sharing.

“All during the investigation we have an open communication with them,” he said. “Defense lawyers talk to each other all the time, where, as long as our clients authorize it, therefore we have a better idea of what’s going to happen. That’s very common.”

Giuliani confirmed he spoke with Manafort’s lead defense lawyer Kevin Downing shortly before and after the verdicts were returned in the Virginia trial, but the former mayor wouldn’t say what he discusses with the Manafort team. “It’d all be attorney-client privilege, not just from our point of view but from theirs,” he said.

Immediately after Manafort’s cooperation was announced, both NPR and the same Politico team that had been quoting Rudy’s bravura reported that someone close to Manafort said there would be no cooperation against the President. In later stories, both quote Sarah Huckabee Sanders and Rudy claiming Manafort’s cooperation has nothing to do with the President.

Despite Manafort’s having led the campaign, the White House has sought to distance itself from him and his case.

“This had absolutely nothing to do with the president or his victorious 2016 presidential campaign,” press secretary Sarah Huckabee Sanders said Friday. “It is totally unrelated.”

Trump’s personal lawyer Rudy Giuliani echoed that idea, adding that “the president did nothing wrong.”

But the NPR version includes this correction.

Editor’s note: An early version of this story published before all the court documents in the case were available contained a characterization from a person familiar with the case that said Manafort’s cooperation would be limited. When charging documents and other materials appeared, they did not support that and the characterization was removed.

And the Politico noted how quickly Rudy backed off his claim that Manafort would testify truthfully.

Of course, anyone who has read the plea agreement closely — up to and including the government’s ability to declare Manafort in breach of the agreement with only a good faith rather than preponderance of the evidence standard —

— and it’s clear that if Mueller’s team wants Manafort to testify about Trump, he will.

Meanwhile, Rudy is yelling on Twitter that the morning shows aren’t taking his word about what Manafort is testifying about over what the clear text of the plea agreement suggests.

I’m more interested still that John Dowd emailed the lawyers for the (reportedly 37, though the number is likely smaller now) other witnesses in the Joint Defense Agreement, claiming outlandishly that Manafort has no evidence on Trump.

The President’s lawyers — the one who currently “works” for him for “free” and the one who allegedly doesn’t work for him anymore but recently got lionized in Woodward’s book as his main source about the Mueller investigation, and in that role was shown to be either an idiot or a fantasist, that the “free” one cites to claim that Woodward exonerates the President — are working very hard to convince others that Manafort’s plea deal doesn’t mean the calculation both other witnesses and the Republican party have been making has to change.

They’re trying to stave off an awful game of prisoner’s dilemma.

Consider if you’re one of the other 37 (which might be down to 34 given known cooperators, or maybe even fewer given how uncertain Rudy seems to be about Don McGahn’s third session of testimony) members of the Joint Defense Agreement, especially if you’re one who has already testified before the grand jury about matters that Manafort (and Gates) might be able to refute. So long as there’s no chance Trump will be touched, you’re probably still safe, as you can count on Trump rewarding those who maintain the omertà or at the very least working to kill the Mueller inquiry shortly after the election.

But if you have doubts about that — or concerns that other witnesses might have doubts about that — you still have an opportunity to recall the things you claimed you could not recall a year ago. Depending on how central your testimony is, you might even be able to slip in and fix your testimony unnoticed.

So each of 37 (or maybe just 30) people are considering whether they have to recalculate their decisions about whether to remain loyal to the President or take care of themselves.

Meanwhile, there’s the Republican party. Admittedly, the Republicans are unlikely to do anything until they rush through Brett Kavanaugh’s confirmation, even if doing so without first inquiring about the allegation that he assaulted a girl when he was in high school will damage their electoral prospects with women in November.

But once they’ve got Kavanaugh confirmed (assuming no big news breaks in the Mueller investigation before that), then the calculation may change. Right now, a lot of Republicans believe they have to stick with Trump through the election, if only to ensure the GOP base turns out. But if Trump’s poll numbers continue to sink — and as the numbers of those who strongly disapprove of Trump continue to grow — Republicans in certain kinds of districts (especially suburbs) will have an incentive to distance themselves from the President.

All that’s a straight calculation based on whether Trump will help or hurt more, come November. But the Republican party, from Trump’s endless repetition of “no collusion;” to Devin Nunes’ naked attempt to obstruct the Mueller investigation; to Chuck Grassley and Lindsey Graham’s referral of Christopher Steele rather than Don Jr for perjury charges; to Mark Meadows’ latest attempts to turn Lisa Page and Peter Strzok’s attempts to chase down someone leaking about Carter Page into a suggestion they themselves leaked; to Richard Burr’s cynical boasts that his committee hasn’t found stuff they wouldn’t chase down if they had been told of it, has invested everything on a gamble that Trump was telling the truth (or, more cynically, that he could stave off discovery of any conspiracy he entered into with Russia).

Republicans have invested a whole lot into attempting to give the President a clean bill of health.

Meanwhile, his campaign manager — a guy many of them have worked with — is presumably now doing the opposite, telling Mueller precisely what the Republicans have been working so hard to suppress for 18 months.

At some point, the ones who have been playing along even while admitting that the President probably did conspire with Russia (I know of some who believe that’s likely), will make their move.

If the GOP were less dysfunctional, they’d do it sooner rather than later, cut their losses with Trump to try to salvage the Pence presidency (whom they like far more anyway). But for now, that calculation of whether or not to do so is likely happening in private.

I’m in no way promising Manafort’s plea deal will set off two parallel floods of rats fleeing the Trump JDA or his presidency generally. These are Republicans, after all, and I’m sure they still would prefer obstructing the whole thing away.

I don’t think a mass abandonment of Trump is going to happen anytime soon.

But Trump’s lawyers do seem worried that could happen.

Trump needs his fellow Republicans to believe that Paul Manafort isn’t providing evidence that incriminates him. Because if they start to believe that, their calculations behind support for him may change, and change quickly.

As I disclosed in 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. 

Paul Manafort’s Modus Operandi: Accuse the Female Politician of Crimes She Didn’t Commit, Then Dodge Sanctions

As Paul Manafort’s plea was being unveiled yesterday, a number of legal observers were shocked by how detailed the criminal information was, complete with 38 pages of exhibits. Hopefully, this will stop me from having to bitch incessantly about how many journalists have swallowed Rudy Giuliani’s claims about Mueller writing up a report. As I keep saying (and as Mueller’s boss Rod Rosenstein has said in testimony), there won’t be a report, there will be indictments.

Ostensibly, the exhibits are there to prove the assertion that Paul Manafort lied to DOJ about what kind of work he was doing for Ukraine.

Although MANAFORT had represented to the Department of Justice in November 2016 and February 2017 that he had no relevant documents, in fact MANAFORT had numerous incriminating documents in his possession, as he knew at the time. The Federal Bureau of Investigation conducted a court-authorized search of MANAFORT’S home in Virginia in the summer of 2017. The documents attached hereto as Government Exhibits 503, 504, 517, 532, 594, 604, 606, 616, 691, 692, 697, 706 and 708, among numerous others, were all documents that MANAFORT had in his possession, custody or control (and were found in the search) and all predated the November 2016 letter.

But I don’t think that’s why they’re there.

They’re there to show what Paul Manafort does when he’s running a campaign.

Because they show that for the decade leading up to running Trump’s campaign, Manafort was using the very same sleazy strategy to support Viktor Yanukovych that he used to get Trump elected.

In other words, these exhibits are a preview of coming attractions.

Take out the female opponent by prosecuting her

The criminal information provided far more detail about something we had only seen snippets of in the Alex Van der Zwaan plea: Manafort’s use of Skadden Arps to whitewash Yanukovych’s prosecution of Yulia Tymoshenko.

It describes how Manafort used cut-outs to place stories claiming his client’s female opponent had murdered someone.

MANAFORT took other measures to keep the Ukraine lobbying as secret as possible. For example, MANAFORT, in written communications on or about May 16, 2013, directed his lobbyists (including Persons D1 and D2, who worked for Company D) to write and disseminate within the United States news stories that alleged that Tymoshenko had paid for the murder of a Ukrainian official. MANAFORT stated that it should be “push[ed]” “[w]ith no fingerprints.” “It is very important we have no connection.” MANAFORT stated that “[m]y goal is to plant some stink on Tymo.”

And it shows Manafort seeding lies that his client’s female opponent had criminal intent when he knew there was no proof to back the claim.

MANAFORT directed lobbyists to tout the report as showing that President Yanukovych had not selectively prosecuted Tymoshenko. But in November 2012 MANAFORT had been told privately in writing by the law firm that the evidence of Tymoshenko’s criminal intent “is virtually non-existent” and that it was unclear even among legal experts that Tymoshenko lacked power to engage in the conduct central to the Ukraine criminal case. These facts, known by MANAFORT, were not disclosed to the public.

This propaganda effort against Manafort’s client’s female opponent included placing stories in Breitbart.

Sanctions will backfire

Manafort placed so much effort on inventing stories about Tymoshenko in part to take her out as a political opponent (and to create an opportunity to pitch Yanukovych’s corruption as a tolerable partner to Europe). But he did so, too, to undermine support for sanctions against Yanukovych for human rights abuses, of which Tymoshenko was the poster child.  Particularly after John Kerry replaced Hillary, Manafort undermined sanctions by promising raw material exploitation opportunities. (This bullet point, at PDF 25, is dated February 24, 2013).

We’ll learn more about what role Manafort himself played in Trump’s policy on sanctions (even aside from any quid pro quo that may have come out of the June 9 Trump Tower meeting), but we know that Trump’s view on sanctions is among the questions Mueller wants to ask Trump, and we know that in an op-ed encouraged by the Trump campaign (and highlighted to Ivan Timofeev), George Papadopoulos argued that sanctions had hurt the US.

Obama lost Ukraine

Manafort was even using some of the very same lines that Trump still uses, such as blaming Obama for “losing” Ukraine (this quarterly memo for Yanukovych, at PDF 21-, is dated April 22, 2013).

Electoral irregularities are my opponents’ fault

Shortly after Yanukovych won in 2010, Manafort boasted that he had established a baseline to be able to claim that Tymoshenko’s complaints about election irregularities were disinformation. (This memo, at PDF 6, is dated February 20, 2010.)

Manafort also prepared a full court press to influence the electoral observers in advance of Ukraine’s 2012 parliamentary election (this document, at PDF 5, is dated as October 9, 2012 in the trial exhibit list).

One thing we’re going to see in former Manafort partner Roger Stone’s eventual indictment is a focus on the work of his Stop the Steal PAC, both just after Manafort arrived to manage the Convention, and his voter suppression efforts (which paralleled Russian ones) during the general election.

Hillary Clinton is the enemy

Finally, as early as February 2013 (see PDF 14), Paul Manafort was advising his client that replacing Hillary Clinton with someone who would value raw material deals over human rights would be a positive development.

As it happens, in 2016, Paul Manafort could please all his clients by offering a man who valued raw material deals over human rights as a positive development.

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. 

A Comparison of Rick Gates and Paul Manafort’s Plea Deals

Because I wanted to get a sense of what Gates won by pleading guilty and cooperating with Mueller’s team earlier, I decided to compare the two plea deals. (Gates, Manafort)

Manafort’s a bigger criminal than Gates

Obviously, the biggest difference comes in recommended sentence. While the government got Gates for a lie to prosecutors and got Manfort for witness tampering, the rest of the conduct was largely the same. Nevertheless, for a variety of reasons (Manafort was the lead and Gates benefitted from being called a minor player, Manafort’s obstruction gets added on top whereas Gates’ lie does not, Manafort got way more money out of the deal) the sentence ranges end up dramatically different.

Manafort’s advisory sentencing range works out to 210-262 months, whereas Gates’ range is 57-71 months.

The government is intent on taking all of Manafort’s stuff

The Manafort plea includes over three pages laying out how the government is going to take his ill-gotten gains. Given my newfound obsession with Paul Manafort’s forfeitures, I’ll write that up separately (or better yet make bmaz, who actually knows something about how this works, do so). The short version, though, is the government is intent on making sure they’ll get it all.

The EDVA charges

While this plea only deals with the charges in DC, the plea is meant to work with the EDVA charges. So for example, Manafort’s plea required him to admit he was guilty of the 10 hung charges in EDVA and prohibits him to appeal that case in any way (and includes the one bank account he had saved from forfeiture in the EDVA trial in the forfeiture in this plea). Manafort’s plea notes that if he is sentenced in EDVA before DC, he will have a criminal history for the purposes of sentencing. The plea promises to recommend that both his EDVA and DC sentences run concurrently (which probably would have happened anyway), but notes that neither judge, Amy Berman Jackson nor TS Ellis, is bound by the plea.

Gates was gagged

Perhaps most interesting pertains to Section 8, the description of cooperation each man has to offer. This is mostly boilerplate, and for both includes a few things in boilerplate bullet points — most  notably the requirement to participate in undercover activities — that won’t apply to either men (though Gates likely did still have documents to turn over whereas Manafort likely doesn’t).

But Gates’ plea has a bullet point Manafort’s doesn’t.

The defendant agrees not to reveal his cooperation, or any information derived therefrom, to any third party without prior consent of the Office.

In other words, the prosecutors anticipated sharing secrets with Gates that might blow up their case. They appear to have no such concerns with Manafort. Possibly, he has already seen such details in the 302s he got from Gates; he would be bound to secrecy about those under the DC protective order.

Still, there would almost certainly be things that Manafort would be discussing going forward, and he doesn’t appear to be bound to keep that secret.

Update: Andrew Prokop notes one thing I missed: the language introducing what kind of cooperation will be required in Gates says he’ll be working with “this Office,” whereas Manafort’s says he’ll be cooperating with “the Government.” I agree with him that suggests Manafort may still be cooperating after the Mueller office has shifted all its prosecutions elsewhere and will be cooperating in other jurisdictions (for example, against Tony Podesta, Vin Weber, and Greg Craig in SDNY). Anybody who has ever broken the law with Manafort should be securing legal representation if they haven’t already.

A slightly larger obligation to Gates

There’s one sentence at the end of the Government’s Obligation section in the Gates plea. After it says he can argue for any sentence below the advisory guidelines, it says,

Depending on the precise nature of the defendant’s substantial assistance, the Office may not oppose defendant’s application.

I’m not sure what to make of the difference — perhaps it suggests the government expected Gates might have that kind of argument to make?

Note, too, that the 5K language in the Manafort plea is actually plural, meaning if he cooperates a lot he’ll be able to ask for a lesser sentence in EDVA too.

Pardon-proofing the statute of limitations

The statute of limitations paragraph, which allows the government to prosecute the underlying crimes and any other crimes not prosecuted if “any plea or conviction [is…] set aside or dismissed for any reason,” even after the statute of limitations toll includes this language in the Manafort plea that is not present in the Gates plea:

The Office and any other party will be free to use against your client, directly and indirectly, in any criminal or civil proceeding, all statements made by your client, including the Statement of the Offense, and any of the information or materials provided by your client, including such statements, information, and materials provided pursuant to this Agreement or during the course of debriefings conducted in anticipation of, or after entry of, this Agreement, whether or not the debriefings were previously a part of proffer-protected debriefings, and your client’s statements made during proceedings before the Court pursuant to Rule 11 of the Federal Rules of Criminal Procedure.

It also repeats that this language applies to the conduct described in the Statement of the Offense “or any other crimes that the Government has agreed not to prosecute.”

Some lawyers believe this language generally and the addition specifically provides further insurance against pardon. If Trump pardons Manafort for the crimes he has just pled guilty to, the government will then be able to go after him for the other crimes he just told the grand jury about, crimes which are probably worse and for which the President is a co-conspirator.

Gates can’t even write a story about Paul Manafort’s sleazy influence peddling

There are two slight differences under the section enumerating trial rights. Both are prohibited from profiting off their stories. But those prohibitions are described differently. Gates many not make money on stories about his:

work for Paul Manafort, the transactions alleged in the Indictment, or the investigation by the Office or prosecution of any criminal or civil cases against him.

Whereas Manafort may not make money on stories about,

the conduct encompassed by the Statement of the Offense, or the investigation by the Office or prosecution of any criminal or civil cases against him.

There’s also a really subtle difference about how proffer statements might be used. Gates waived the right to object “to the Government’s use” of his proffer statements (which started on January 29, almost a month before he pled). Manafort waived the right to object to “the use” of his proffer statements, suggesting Mueller’s team might know of other venues (or branches of government) besides the Federal government where those statements might be used.

Gates preserves two potential collateral attacks on his sentence

Gates preserved two additional rights in the collateral attacks section. First, if the sentencing range for his crimes gets lowered in the future, he can challenge that under 18 USC §3582(c)(2). Additionally, he could also challenge the sentence if newly discovered evidence comes available. Manafort has neither of these protections.

The government can declare Manafort in breach of agreement based on good faith

With Gates, the standard the government has to prove to argue he has breached his agreement is preponderance of the evidence or, in case of committing a crime, probable cause. With Manafort, the government only has to prove “good faith.”

Jeannie Rhee gets involved

This may be a minor (or huge) issue. But there’s one difference to the prosecutors who signed these pleas. Andrew Weissman, Greg Andres, and Kyle Freeny are on both. But whereas Brian Richardson signed Gates’ plea, Jeannie Rhee signed Manafort’s. That’s interesting because she has been heavily involved in the Roger Stone investigation, but she was also involved in the two Russian indictments.

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. 

Checkmate: The Manafort Cooperation Is Pardon Proof

I was virtually certain that the plea deal Manafort is pleading to today would include cooperation — and I was correct. Andrew Weissmann told Amy Berman Jackson that the deal does require Manafort cooperation.

I was certain not just because of the tease in the Special Counsel announcement, above, that additional information would be forthcoming.

But the fact that no media outlet was able to confirm whether or not the plea would include cooperation could only be possible if Mueller had made silence about that fact part of the deal. Otherwise, Manafort’s lawyers would have confirmed that it included no cooperation to placate the President. As it was, no one outside of the deal knew that the plea did include cooperation until Manafort was already pleading guilty.

And at this point, the deal is pardon proof. That was part of keeping the detail secret: to prevent a last minute pardon from Trump undercutting it.

Here’s why this deal is pardon proof:

  1. Mueller spent the hour and a half delay in arraignment doing … something. It’s possible Manafort even presented the key parts of testimony Mueller needs from him to the grand jury this morning.
  2. The forfeiture in this plea is both criminal and civil, meaning DOJ will be able to get Manafort’s $46 million even with a pardon.
  3. Some of the dismissed charges are financial ones that can be charged in various states.

Remember, back in January, Trump told friends and aides that Manafort could incriminate him (the implication was that only Manafort could). I believe Mueller needed Manafort to describe what happened in a June 7, 2016 meeting between the men, in advance of the June 9 meeting. I have long suspected there was another meeting at which Manafort may be the only other Trump aide attendee.

And Manafort has probably already provided evidence on whatever Mueller needed.

So here’s what Robert Mueller just did: He sewed up the key witness to implicate the President, and he paid for the entire investigation. And it’s only now lunch time.

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. 

 

Paul Manafort’s $46 Million Plea Deal

Mueller’s office just released a superseding complaint as part of a plea deal with Paul Manafort. He will plead guilty to ConFraudUs tied to his FARA violations and obstruction tied to his witness tampering. The Special Counsel’s office promises “additional information … in the near future.” I guess we’ll learn then whether this involves cooperation (for all we know, Manafort is sitting in front of the grand jury right now).

While Manafort will get off without many new charges in the DC case, he’ll lose his (ostrich skin) shirt. Here’s what is listed in forfeiture.

The property subject to forfeiture by PAUL J. MANAFORT, JR., includes, but is not limited to, the following listed assets:

a. The real property and premises commonly known as 377 Union Street, Brooklyn, New York 11231 (Block 429, Lot 65), including all appurtenances, improvements, and attachments thereon, and any property traceable thereto;

b. The real property and premises commonly known as 29 Howard Street, #4D, New York, New York 10013 (Block 209, Lot 1104), including all appurtenances, improvements, and attachments thereon, and any property traceable thereto;

c. The real property and premises commonly known as 174 Jobs Lane, Water Mill, New York 11976, including all appurtenances, improvements, and attachments thereon, and any property traceable thereto;

d. All funds held in account number XXXXXX0969 at The Federal Savings Bank, and any property traceable thereto;

e. All funds seized from account number XXXXXX1388 at Capital One N.A., and any property traceable thereto; and

f. All funds seized from account number XXXXXX9952 at The Federal Savings Bank, and any property traceable thereto;

g. Northwestern Mutual Universal Life Insurance Policy 18268327, and any property traceable thereto;

h. All funds held in account number XXXX7988 at Charles A. Schwab & Co. Inc., and any property traceable thereto; and

i. The real property and premises commonly known as 1046 N. Edgewood Street, Arlington, Virginia 22201, including all appurtenances, improvements, and attachments thereon, and any property traceable thereto.

This adds both the Federal Savings Bank account listed for forfeiture in the EDVA case, and the Capital One case. And these are subject to both civil and criminal forfeiture, so Trump can’t pardon them away.

Update: On Twitter, several people note that with this forfeiture, the Mueller investigation just more than paid for itself.

The EDVA Holdout Juror Has (Thus Far) Saved Paul Manafort $16 Million

I want to pull something from this post into its own post. In that post, I talked about the stakes of a guilty verdict in Paul Manafort’s DC case, which subjects most of the counts to a $30 million forfeiture judgment.

Based on the EDVA indictment, I had thought that all the bank fraud charges in that case were subject to forfeiture. But with Andrew Prokop’s help, have confirmed that just charges 29 and 30 included forfeiture. The Special Counsel’s Office has confirmed that “forfeiture was limited at trial to convictions on counts 29 or 30.”

That means that the one holdout juror may have saved Paul Manafort $16 million. It also raises the stakes of a retrial considerably.

Update: Two more clarifications from SCO. First, “Nothing has changed in the D.C. case” from what was described in the indictment. When I asked about civil forfeiture, they responded, “The case filed in EDVA only references criminal forfeiture.” So here’s the distinction. The Forfeiture section in the EDVA indictment starts,

Pursuant to Fed. R. Crim. P. 32.2, notice is hereby given to the defendants that the United States will seek forfeiture as part of any sentence in accordance with Title 18, United States Code, Section 982(a)(2), in the event of the defendants’ convictions under Counts Twenty-Four through Thirty-Two of this Superseding Indictment.

As SCO notes, 18 USC 982 is just criminal forfeiture.

Whereas the DC indictment cites both 18 USC 981 (Civil) and 982 (Criminal).

Pursuant to Fed. R. Crim. P. 32.2, notice is hereby given to the defendants that the United States will seek forfeiture as part of any sentence in accordance with Title 18, United States Code, Sections 981(a)(1)(C) and 982(a)(1), and Title 28, United States Code, Section 2461(c), in the event of the defendants’ conviction.

 

Paul Manafort Is One of 37 People in an Omertà with the President

Apparently, Bob Woodward committed some journalism along with canonizing racist John Kelly and wife-beater Rob Porter in his book: he got a number for how many people are included the Joint Defense Agreement that gives Rudy Giuliani such confidence the President is not at risk: 37.

And Politico committed still more journalism and answered the question we’ve all been asking: yes, Paul Manafort is among those 37.

Giuliani also confirmed that Trump’s lawyers and Manafort’s have been in regular contact and that they are part of a joint defense agreement that allows confidential information sharing.

“All during the investigation we have an open communication with them,” he said. “Defense lawyers talk to each other all the time where as long as our clients authorize it therefore we have a better idea of what’s going to happen. That’s very common.”

Giuliani confirmed he spoke with Manafort’s lead defense lawyer Kevin Downing shortly before and after the verdicts were returned in the Virginia trial, but the former mayor wouldn’t say what he discusses with the Manafort team. “It’d all be attorney-client privilege not just from our point of view but from theirs,” he said.

That means when John Dowd complained that the raid of Manafort’s condo (where his eight iPods were seized), that was based on privileged conversations between lawyers. And when, in January, Trump confidently said he was sure Manafort would protect him, that was based on privileged conversations between lawyers.  And when, just before the EDVA trial, Kevin Downing was ostentatiously saying there was no way Manafort was flipping, and when he was balking on a plea with Mueller immediately after the trial, he was also talking to Rudy Giuliani.

Mind you, Rudy G will learn right away if Manafort starts considering cooperating, rather than just pleading, because Manafort will have to (finally!) drop out of the JDA before those discussions start.

And while I suspect Mueller has slowly been peeling away people like Sam Patten, that the JDA is so big likely means some or most of the following people are part of the omertà (and Michael Cohen, Rick Gates, and Mike Flynn were part of it):

  • Paul Manafort and Konstantin Kilimnik
  • Jared Kushner
  • The Trump Org defendants: Don Jr, Rhonna Graff
  • Bill Burck’s clients: Steve Bannon, Reince Priebus, Don McGahn (and up to three more)
  • Victoria Toensing’s clients: Mark Corallo, Erik Prince, Sam Clovis
  • The hush payment recipients: Hope Hicks, Brad Parscale, Keith Schiller
  • Roger Stone and his buddies: Stone, Michael Caputo, Sam Nunberg, Andrew Miller, plus some (probably)

That’s 20. Some other likely (and enticing) JDA members are: Devin Nunes, Jeff Sessions, Tom Barrack, Keith Kellogg, John Mashburn, KT McFarland, JD Gordon, Walid Phares, Stephen Miller, Sean Spicer, Rob Porter, Corey Lewandowski, John Kelly. Heck, it’s not even clear that George Papadopoulos is not part of the JDA.

But that still leaves space in the JDA for people who were already comparing notes with known members of the JDA, including Rinat Akhmetshin, Rob Goldstone, and Ike Kaveladze (along with Emin and Aras Agalarov, who are all represented by Scott Balber).

No wonder Rudy thinks he knows everything that Mueller has.

That’s why the collective panic on the discovery that Stone’s phone was likely among the ~10 or so that Mueller got warrants for in the wake of Rick Gates’ cooperation agreement is so interesting, and also why Manafort, playing his part as point, tried so hard to find out who the other four AT&T users whose phones were obtained with his own.

These guys may be good at omertà. But every single one we’ve seen so far has shitty OpSec; they’ve been saying their co-conspiracy communications on their phones and on iCloud. Plus there are people like Omarosa wandering among them, dismissed as irrelevant even while they record everything they hear. And meanwhile, Mueller is chipping away at the edges, people they haven’t considered (like Patten). And all the while he’s been building his case against Stone and Don Jr.

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