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Two Trajectories: Sleazy Influence Peddler Paul Manafort and Foreign Agent Prosecutor Brandon Van Grack

Like many, while I expected TS Ellis to give Paul Manafort a light sentence, I’m shocked by just how light it was.

Ellis gave Manafort 47 months of prison time for crimes that the sentencing guidelines say should start at a 19 year sentence. Even if Amy Berman Jackson gives Manafort the stiffest sentence she can give him — 10 years — and makes it consecutive, he’ll still be facing less than the what sentencing guidelines recommend. Ellis even declined to fine Manafort beyond the $24 million he’ll have to pay in restitution (Zoe Tillman lays out the money issues here).

There are a number of reasons to be outraged by this.

Ellis explicitly suggested that Manafort’s crimes were less serious than similar organized crime that people of color would commit. In the wake of this sentence, any number of people (especially defense attorneys) have pointed to non-violent criminals facing more prison time than Manafort. That said, I agree with those who suggest we should aim to bring those other sentences down in line with what the civilized world imposes, and not instead bump white collar criminals up to the barbaric levels that come out of the drug war.

Ellis gave this sentence even though Manafort expressed no remorse. Ellis commented that “I was surprised that I did not hear you express regret for engaging in wrongful conduct. In other words, you didn’t say, ‘I really, really regret not doing what the law requires,'” but nevertheless sentenced him as if he had.

Perhaps most infuriating were the backflips Ellis did to spin Paul Manafort as a good man. He emphasized that Manafort was “not before the court for any allegation that he or anybody at his direction colluded with the Russian government to influence the 2016 presidential election,” which is true; but Ellis received the breach determination materials showing that at a time when Manafort was purportedly cooperating, he instead lied about sharing polling data with a suspected Russian asset while discussing a Ukrainian peace deal that he knew amounted to sanctions relief, a quid pro quo. Because those materials go to the issue of whether Manafort took responsibility and was a risk for recidivism, they were fair game for consideration, but Ellis didn’t consider them.

Indeed, because of time served, Ellis effectively sentenced Manafort to an equivalent sentence that Michael Cohen faces having committed an order of magnitude less financial fraud, pled guilty, and provided limited cooperation to the government. Effectively, then, Ellis has sanctioned Manafort’s successful effort to avoid cooperating in the case in chief, on how he and Trump conspired with Russia to exploit our democratic process.

Instead of referring to the materials on Manafort’s refusal to cooperate, Ellis instead just regurgitated defense materials and claimed that aside from stealing millions of dollars from taxpayers and whatever else went on before Amy Berman Jackson, Manafort had “lived an otherwise blameless life.”

And that’s where I step away from a generalized discussion of the barbaric nature of our criminal justice system to look specifically at the barbaric nature of what Paul Manafort has done with his life. I feel much the way Franklin Foer does.

In an otherwise blameless life, Paul Manafort lobbied on behalf of the tobacco industry and wangled millions in tax breaks for corporations.

In an otherwise blameless life, he helped Philippine President Ferdinand Marcos bolster his image in Washington after he assassinated his primary political opponent.

In an otherwise blameless life, he worked to keep arms flowing to the Angolan generalissimo Jonas Savimbi, a monstrous leader bankrolled by the apartheid government in South Africa. While Manafort helped portray his client as an anti-communist “freedom fighter,” Savimbi’s army planted millions of land mines in peasant fields, resulting in 15,000 amputees.

[snip]

In an otherwise blameless life, he spent a decade as the chief political adviser to a clique of former gangsters in Ukraine. This clique hoped to capture control of the state so that it could enrich itself with government contracts and privatization agreements. This was a group closely allied with the Kremlin, and Manafort masterminded its rise to power—thereby enabling Ukraine’s slide into Vladimir Putin’s orbit.

[snip]

In an otherwise blameless life, he produced a public-relations campaign to convince Washington that Ukrainian President Viktor Yanukovych was acting within his democratic rights and duties when he imprisoned his most compelling rival for power.

In an otherwise blameless life, he stood mute as Yanukovych’s police killed 130 protesters in the Maidan.

Paul Manafort invented the profession of sleazy influence peddler. His own daughter once acknowledged, “Don’t fool yourself. That money we have is blood money.” And our democracy, as well as more corrupt regimes around the globe where Manafort was happy to work, are much less just because of Manafort’s life’s work.

Which is why I take more solace in something that happened the night before Manafort’s sentencing: A CNN report that DOJ has put Brandon Van Grack — a prosecutor who, under Mueller, prosecuted Mike Flynn and his sleazy influence peddler business partners — in charge of a renewed effort to crack down on unregistered sleazy influence peddlers.

The initiative at the Justice Department to pursue violations of the Foreign Agents Registration Act, which requires that an entity representing a foreign political party or government file public reports detailing the relationship, will be overseen by Brandon Van Grack, who left Mueller’s team in recent months to rejoin the national security division.

Van Grack’s appointment to the newly created position and the Justice Department’s interest in expanding its pursuit of foreign influence cases stemmed largely from the impact of Russian operations on the 2016 presidential election, John Demers, the head of the national security division, said Wednesday at a conference on white-collar crime.

With Van Grack’s new role, the Justice Department will shift “from treating FARA as an administrative obligation and regulatory obligation to one that is increasingly an enforcement priority,” Demers said.

He also pointed to the impact of a recent settlement with one of the country’s highest-profile law firms — Skadden, Arps, Slate, Meagher & Flom LLP — on the department’s decision to escalate its enforcement in that area.

[snip]

Demers added that the Justice Department is considering seeking congressional authorization for administrative subpoena power to enforce the Foreign Agents Registration Act, which it currently lacks.

“That’s something that we’re taking a hard look at,” he said. Referencing Skadden, he added: “Do I think the firm would have behaved differently if they had received a subpoena versus they had just received a letter? Yes.”

This marks a decision to treat FARA violations — sleazy influence peddling that hides the ultimate foreign customer — as a real risk to our country. As I have laid out in my comparison of Manafort’s “otherwise blameless life” and Maria Butina’s efforts to infiltrate right wing politics, a venal insider with an already rich political network will be far more effective (and insidious) than even a beautiful woman backed by a mobbed up foreign government official and abetted by her own washed out Republican insider.

I don’t know what Mueller is doing with all the evidence of a conspiracy that he continues to protect. I don’t know that he’ll be able to deliver a prosecutorial conclusion that will deliver justice for the sleazy things that Trump did to win the election. Prosecuting very powerful people is very difficult, and we shouldn’t forget that.

But one other point of this entire investigative process was to learn lessons, to make it harder for hostile outsiders to hijack our democratic process going forward.

In letting Manafort off with a metaphorical wrist-slap, TS Ellis did nothing to deter others who, like Manafort, will sell out our country for an ostrich skin jacket. Even ABJ will face some difficult challenges in DC when she tries to sentence FARA crimes (particularly those of Sam Patten, who cooperated) without precedents to do so.

But the way to build those precedents — the way to establish a record that causes a Skadden Arps or a Rob Kelner to treat FARA registration as the official declaration to the government that it is — is to pursue more of these cases, against sleazy influence peddlers working for all foreign entities, not just the ones we despise.

So Manafort may get off easy for helping Russia interfere in our election in a bid to line up his next gig white-washing brutal oligarchs.

But along the way, our justice system may be adapting to the certainty that he did not live an otherwise blameless life

As I disclosed last 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’s Bid for a Pardon: No Collusion No Collusion No Collusion No Collusion No Collusion No Collusion No Collusion No Collusion

Paul Manafort submitted his DC sentencing memo. I lay out some of his more ridiculous claims about wanting to serve public servants like Mobutu Sese Seko, Ferdinand Marcos and Jonas Savimbi and his use of “garden variety” to describe his epic corruption in this thread. Particularly given the way that parts of this memo will surely piss off Amy Berman Jackson (and probably even TS Ellis, his EDVA judge), the real substance of his argument is this:

Importantly, the defendant has not been charged with any crimes related to the primary focus of the Special Counsel’s investigation; i.e., “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump[,]” otherwise referred to as “Russian collusion” by the national media.

[snip]

As said at the beginning of the case, there is no evidence of Russian collusion.

[snip]

Shortly after Mr. Trump’s election, the Acting Attorney General appointed the Special Counsel in May 2017 to investigate allegations that his campaign colluded with the Russian government to influence the 2016 election. The scrutiny was (and remains) intense because the investigation involves a sitting U.S. president.

[snip]

Rousing the defendant and his wife from bed, the federal agents entered their home with guns drawn and searched high and low—not for evidence of Russia collusion—but rather for evidence of tax and financial crimes and Mr. Manafort’s failure to file forms under the obscure FARA statute.

[snip]

In October 2017, unable to establish that Mr. Manafort engaged in any Russia collusion, the Special Counsel’s Office charged Mr. Manafort in the District of Columbia with crimes that did not relate to Mr. Manafort’s work on the 2016 U.S. presidential campaign and generally involved his employment years ago by Ukrainian oligarchs, politicians and the Party of Regions. Several months later, in February 2018, the Special Counsel increased the pressure by charging Mr. Manafort in the Eastern District of Virginia (EDVA) with tax fraud, failing to report foreign bank accounts, and bank fraud—allegations, once again, that predated the 2016 campaign or that were unrelated to collusion between Mr. Trump’s campaign and the Russian government.5

5 As U.S. District Judge T.S. Ellis, III noted in the EDVA matter, the Special Counsel’s strategy in bringing charges against Mr. Manafort had nothing to do with the Special Counsel’s core mandate—Russian collusion—but was instead designed to “tighten the screws” to compel Mr. Manafort to cooperate and provide incriminating information about others. See United States v. Manafort, 18-CR-0083-TSE (EDVA), Tr. of May 4, 2018 Motions Hearing at 5

[snip]

The Special Counsel’s investigation and prosecution in this case (and the EDVA case) do not charge him with anything related to Russia collusion or to the presidential campaign. 34

34 As Judge Ellis noted in the EDVA case: “And so what is really going on … is that this indictment [was] used as a means of exerting pressure on the defendant to give you information that really is in [the Special Counsel’s] appointment, but itself has nothing whatever to do with it.” United States v. Manafort, 18-CR0083-TSE (E.D.Va. 2018), Tr. of May 4, 2018 Motions Hearing at 8.

[snip]

The sentences already imposed in other cases that have been investigated and/or prosecuted by the Special Counsel’s Office reflect the fact that courts recognize that these prosecutions bear little to no relation to the Special Counsel’s core mandate of investigating allegations that the Trump campaign colluded with the Russian government to influence the 2016 election.

Particularly given ABJ’s finding that Manafort lied about how he gave the Russian government polling data via Konstantin Kilimnik amid conversations about a sanctions-ending Ukraine “peace” plan, and given that the warrant to search his Alexandria condo explicitly including Russian conspiracy in the affidavit, the eight different claims Mueller wasn’t searching for and didn’t find “collusion” are false.

But that’s doesn’t matter. Manafort’s job — if he wants the pardon he has been playing for all this time — is to keep repeating that lie, just like the guy he’s speaking to.

As I disclosed last 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. 

Mueller Juggles Plea Agreement Housekeeping

In the last two days, both Rick Gates’ and Paul Manafort’s plea deals have made news.

In Gates’ case, his lawyers have filed an unopposed motion to liberate him from his GPS device and curfew, arguing that the leverage of the plea deal itself is enough to keep him on the straight and narrow.

The plea agreement contains very serious consequences for Mr. Gates should he violate any of its terms or conditions. The advantages that attach to strict compliance with that agreement, and the extraordinary disincentives to violating that agreement, alone guarantee Mr. Gates’s appearance at any scheduled Court proceeding. Over a substantial period of time, now approaching one year, Mr. Gates has demonstrated his resolve to comply with all conditions of his release. Removing the GPS monitor and allowing Mr. Gates to travel within the Eastern District of Virginia and District of Columbia without restriction will surely not increase the risk of flight or make it less likely that Mr. Gates will appear in Court when required to do so.

The more interesting bit comes when, in a bid to talk up Gates’ cooperation, his attorneys reveal he’s been meeting with other prosecutors.

Both before the entry of the plea, and for many weeks thereafter, Mr. Gates, whenever requested, traveled to Washington, D.C., to appear at the Office of Special Counsel to be interviewed as part of his cooperation agreement. Those sessions have been numerous and they continue to this day.

[snip]

These meetings with the Office of Special Counsel continued during the weeks preceding the trial of co-defendant Paul Manafort in the United States District Court for the Eastern District of Virginia.

[snip]

Following that trial, Mr. Gates has continued to cooperate with the Special Counsel and with other federal investigators by attending current meetings at which he provides additional information. [my emphasis]

Rick Gates met in March and he met in July and he met in September, Thomas Green says. It’s the “other federal investigators” that’s of interest, as it suggests his cooperation extends beyond Mueller’s case in chief.

But that may not mean all that much. After all, Gates’ cooperation would be useful for the three cases Mueller referred to SDNY (involving Tony Podesta, Vin Weber, and Greg Craig), as well as for Stephen Calk, the Chicago banker who gave Manafort a loan in hopes of getting an appointment with the Trump Administration. Gates would surely also have information that might corroborate Sam Patten’s cooperation.

Still, it’s possible those “other federal investigators” include some of the “garden variety” Trump corruption I keep suggesting might also get spun off, such as the non-Russian Inauguration pay-to-play.

Meanwhile, in EDVA, TS Ellis is being TS Ellis. Yesterday, he filed an order saying that the parties in Manafort’s EDVA prosecution can’t just defer resolution of the ten hung counts against him until after Mueller is done with his cooperation. He scheduled a hearing for a week from Friday, on October 19, so the process of sentencing can begin. At that hearing, Ellis expects the parties to “address dismissal of the outstanding counts on which the jury deadlocked.”

Dismissing the charges may be no big deal. Manafort is on the hook for 210 – 262 months if he breaches his plea agreement in DC, before any state charges, and some of the charges that Ellis would dismiss could be charged in VA, aided by Manafort’s admission of guilt in them in the plea. As Popehat notes, cleaning up these charges is consistent with good docket management.

The push for the government to move forward on cooperation is more interesting as it may require the government to weigh in on the value of Manafort’s cooperation while he’s still discussing things with Mueller’s team. Of particular interest, any discussion on cooperation may reveal how much Manafort has cooperated against the President.

I’m also interested in timing. Manafort’s lawyers submitted their notice that they won’t challenge anything that happened in that trial right on schedule, on September 20. The government filed their response just under the week later that they had under Ellis’ schedule, on September 26. But Ellis took two weeks before he issued this hurry up and wait order, setting a hearing for October 19, at which any sentencing schedule is likely to be after Manafort’s next status hearing in DC.

In any case, it’s not clear that Ellis’ haste will help Manafort much. Even if Ellis is perturbed that Mueller used his courtroom to flip a witness against Trump, the PSR will show that Manafort is an admitted criminal in the DC charges, meaning his sentence should be harsher than it would with any kind of cooperation assistance. And prosecutors can just defer any 5K statement, and instead account for cooperation with a Rule 35 motion submitted after the fact. In any case, the plea envisions concurrent sentencing, and if Manafort does’t cooperate willingly, he’ll face 10 years in the DC plea, which is longer than Ellis is likely to have sentenced him on anyway.

So it seems like Mueller can still retain the breathtaking upper hand they have with Manafort, and defer any public statement on cooperation until later.

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. 

The Trump Team Strategic Errors: Rockets Instead Bursting In Air

During the winter, when the government was threatening and then did charge Paul Manafort with a bunch of tax fraud charges, he chose not to waive venue, forcing himself into two trials, one in EDVA and one in DC. (Raising the perennial question, who is paying for his legal representation?)

At the time, Josh Gerstein suggested might be seeking to avail himself of EDVA’s famed “rocket docket” which pushes trials through quickly. The thought was perhaps Manafort would have a better result with EDVA’s more conservative jury pool before his DC trial started, which in turn might be a way to discredit the Mueller investigation (something that has always seemed key to any strategy pursuing a pardon).

Manafort’s attorneys’ decision to effectively force some — but not all — of special counsel Robert Mueller’s case against him to northern Virginia baffled many lawyers, since it puts Manafort at risk of two separate trials rather than one. To some, it’s akin to choosing to play Russian Roulette with two bullets in the gun instead of one.

However, because the Alexandria-based federal court’s “rocket docket” is known for providing quick trials, there’s a possibility that Manafort could get to trial on bank and tax fraud charges in Virginia before the Sept. 17 trial date set Wednesday by Judge Amy Berman Jackson in Washington in the original case, now scaled back to focus on money laundering and failure to register as a foreign agent.

That means Manafort has a chance of getting his case before a northern Virginia jury first — a panel more likely to include Trump supporters who may be skeptical of Mueller’s enterprise. Such jurors are likely to be a rarity in Washington.

[snip]

If Manafort could pull off an acquittal in Alexandria or even a hung jury, it could fuel President Donald Trump’s view of the Mueller probe as a prolonged “witch hunt” that is more persecution than prosecution. That would seem certain to lead to calls for Mueller to abandon the D.C. case and might prompt a pardon from Trump or some action to shut down the special counsel’s office altogether.

Even if nothing so dramatic happened, a stumble for Mueller’s team in Virginia and in its first contested trial could raise pressure for prosecutors to be more flexible in negotiating a plea deal.

Not long after at Manafort’s EDVA arraignment before the cantankerous TS Ellis, however, his attorney Kevin Downing admitted that they would prefer either everything move to EDVA, or the EDVA trial go second, after the DC trial still scheduled to start on September 17.

MR. DOWNING: We’re actually thinking trying to get the conspiracy to come here. We’re happy to be here.

[snip]

MR. DOWNING: In this perfect world where I have my rosy glasses on, we were envisioning that we would be trying this case in November following the case in D.C.

THE COURT: You need to go back to the optometrist, because that isn’t going to happen.

MR. DOWNING: Okay.

THE COURT: You’ve got a trial date in September in the District? Mr. Weissmann, this case seems — maybe I’m not familiar with the indictment in D.C., but this case seems less complex than the one in D.C.

MR. WEISSMANN: That’s our view as well. The tax charges, as we mentioned, do largely overlap. But unlike the D.C. case, there are no Foreign Agents Registration Act charges before this Court. And those involve quite an extensive array of evidence and different theories of liability. Here we have what I think are five bank frauds and they are discrete over a two-year period and the discovery has been produced.

THE COURT: All right. Mr. Downing, I’m going to set this matter in July. Now, if in the course of your preparation something comes up that suggests to you that you now have a more persuasive basis for me to consider on a later trial date, I’ll consider it. But for now, 12th of — or not 12th — 10th of July at 10 a.m. with a jury. Also having that earlier deadline is an important — it will focus your minds, everyone’s minds on it and get this matter done.

In July, Manafort used his jailing by Amy Berman Jackson as an excuse to ask for a delay in the EDVA trial.

In a response, the government demonstrated to Ellis that Manafort was still trying to have his desired outcome, to have the DC trial go first.

Manafort can hardly now complain about the order of the trials: he was on notice from the Honorable Amy Berman Jackson, when he elected last winter not to have the proposed tax and bank fraud charges all brought in the D.C. Case, that his decision would likely result in his going to trial in Virginia first. D.C. Case Status Hr’g Tr. (Jan. 16, 2018). That other reasons may account for this application is strongly suggested by a prison call in which Manafort discusses going to trial first in the D.C. Case and contends to the listener (who did not believe the D.C. venue was favorable) that the listener should “think about how it’ll play elsewhere….There is a strategy to it, even in failure, but there’s a hope in it.” Phone Call of Manafort (June 20, 2018), at 4:02-4:39.

The trial went off in July as scheduled, meaning Manafort faced the more traditional of charges first.

Still, getting one trial in EDVA almost worked, with a holdout juror that hung the jury on 10 of 18 charges (though that won’t have that big an effect on sentencing) and lots of good press stemming from Ellis beating up the prosecution, both during Manafort’s challenge to Mueller’s authority and during the trial in general.

Add in the fact that Manafort (again, with his seemingly endless supply of funds to pay defense attorneys) got two bites at key challenges to Mueller’s case in chief — his authority generally, and the search of Manafort’s condo for things including evidence about the June 9 meeting — and the dual trial strategy probably wasn’t a total flop (unless, of course, it means Manafort is running out of money). Along the way, he also got full discovery on what Rick Gates has provided Mueller, presumably including the real goods Gates gave Mueller on the conspiracy with Russia.

But Manafort’s still facing another trial in a less friendly venue before a no-nonsense judge, a trial he seems to have done nothing to prepare for. (WSJ reports the two sides did consider a plea on the DC charges while waiting for the EDVA verdict, to no avail.) And all of Rudy’s squealing about how indictments or even further investigation during the campaign season might be a distraction, Manafort’s trial (one that’s sexier than the EDVA one) will remain a constant focus in the last six weeks before the election.

To be fair, it’s hard to measure how Manafort’s strategy is playing, as it’s not clear what — besides a full pardon — his goals are. Plus, he’s got a shitty hand, no matter how you look at it (except for the seemingly endless supply of defense fund dollars).

But Manafort’s bid for a second trial seems like an even worse strategic decision than Michael Cohen’s bid for a Special Master (which I now admit at least gave Trump and his company an opportunity to undercut any Cohen bid for a plea deal) not least because he’ll be a felon in his DC trial which will in turn make sentencing worse if he is found guilty there.

At least the defense bar is making money.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It didn’t work.

A Warning about Hype Surrounding the Manafort Tax Evasion Trial

As I laid out a few weeks ago, 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.

Because Mueller has already obtained the testimony of chatty Trump allies who promptly leaked the content of their interviews to the press, the constant stream of easy updates on the Mueller inquiry has dried up. No outlet has thus far invested in the critical thinking to figure out the publicly available side of what I reported to the FBI that subsequently got moved under Mueller. No one has thought about why Michael Cohen’s very competent attorney is letting him leak to the press rather than (or, at best, in parallel with) offering a proffer to the Feds. Instead, outlets are dedicating front page space to recycled stories they first reported three months earlier. We actually spent half the day Friday getting our fix from the news that Don Jr and Robert Mueller not only had reason to fly out of National Airport’s shitty 35X gate, but were doing so at the same time (for the record, I would have been in the 35X terminal with Trey Gowdy Thursday, but he apparently got rebooked from a badly delayed Greenville flight onto an on-time Charlotte one across from 35X; he wore shades right up to boarding the plane to avoid detection but that didn’t thwart my powers of observation).

We’ve hit the summer doldrums of the non-stop Mueller inquiry news addiction and things are getting bleak.

Perhaps because of that, news outlets are hugely hyping the Paul Manafort trial, due to start on Tuesday. Here’s Politico reporting “Risks pile up for Trump as Manafort heads to trial.” And here’s WSJ claiming “Manafort Trial Holds Big Implications for Russia Probe.” [Update: Here’s the WaPo contribution to the hype; I make some specific compliments and criticisms of it in this thread.]

Yes, it is true that (as both Politico and WSJ point out) there will be a small campaign angle to the trial: Mueller’s team wants to explain how Manafort got a $16 million loan from Chicago’s Federal Savings Bank by promising its Chairman, Stephen Calk, a position in the Trump Administration. But that’s garden variety sleaze, not conspiring with Russia.

It’s also true we’ll get salacious new details on the luxury goods Manafort used to launder money. But most of that, including details of a bizarre arrangement with the local antique rug shop, have already been stipulated in pre-trial filings. Manafort is even trying to get details of his ties to Viktor Yanukovych excluded from the trial, but in doing so, he released a ton of documents that the press has already mined for worthwhile reporting.

It’s also possible that Manafort will decide, between today and Tuesday, to cooperate with Mueller rather than face a fairly straightforward trial, or that a guilty verdict in four weeks time will induce him to cooperate. Thus far, there’s little sign of that, and a guilty verdict will have no immediate change on his jailhouse conditions that might persuade him to cooperate. Any federal sentence will ultimately be served in conditions better than the ones he currently is in at Alexandria jail.

Barring some unexpected jury intransigence or judicial rulings, it still looks like Manafort’s best shot to avoid spending the rest of his life in prison is a pardon, and he looks to be operating accordingly, imposing as much reputational damage to Mueller as possible, without budging on his willingness to stay the course in apparent expectation he’ll be rewarded at some point in the future.

Aside from Rick Gates — who is sure to be beat up by Manafort’s attorneys — the most interesting witness who might testify at trial is Bernie Sanders’ former campaign manager Tad Devine, who would testify about PR work done before 2014. We’ll have to wait to see Tony Podesta and Vin Webber and similarly illustrious people testify for the DC trial, if it happens. This trial is just the appetizer course for the feast on sleazy DC influence peddling we’ll get in September, if the DC trial actually happens.

The newsworthiness of the trial will be limited further still by the outdated policies of the courthouse, EDVA. No devices are permitted in the courthouse, which means there will be no real time coverage. To break news, you have to leave the courthouse, and go to your (meter parked) car or the cafe where you’ve left your device across the square to report out. As a result, any “breaking” scoops will likely come from less responsible journalists with less grasp of both how trials and Judge TS Ellis works (as we saw earlier this year, when Daily Caller led everyone to believe one of Ellis’ typical rants indicated trouble for Mueller). Responsible journalists (Josh Gerstein and Zoe Tillman are particularly good bets for this trial) will sit through the entire proceeding before reporting out something more measured.

This is a tax trial, not a spy trial. Financial experts call it a “paper trial,” meaning the jurors will weigh dry documentary evidence rather than the reliability of unreliable witnesses (like Gates), which makes the outcome more predictable, though in no way guaranteed.

One of a slew of reasons why I declined an offer to cover this trial is I expect any interesting Mueller news to happen elsewhere — perhaps in his apparent relentless pursuit of testimony from Roger Stone’s allies, perhaps in the negotiations over Julian Assange’s continued residence in Ecuador’s embassy, perhaps even in fallout from Mariia Butina’s arrest (though Butina is not a Mueller case, in spite of what some outlets will tell you). I didn’t want to miss such news because I was stuck in a court room watching witnesses talking about financial documents.

Undoubtedly, the trial will be well-watched and in some outlets well-reported. It will teach a lot of people about how white collar trials of privileged defendants work. It may well be the rare moment when a white collar criminal faces consequences for his acts.

But don’t rest your hopes for continued Mueller disclosures on the Manafort trial.

Judge Ellis Compares Paul Manafort to Domestic and Foreign Terrorists and Spies and Traitors in Pulling his VIP Privileges

As I laid out last week, 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. 

As I noted in this post, last Friday Paul Manafort requested to continue his VA trial until after the other one and (in a really craptastic argument effectively claiming a jury of Manafort’s influence peddling peers wouldn’t give him a fair trial) to move the trial to Roanoake, VA. In response, Judge TS Ellis (who likes being dicked around even less than your average judge, which is generally not at all) issued an order to have him moved to the Alexandria jail (which is where Judy Miller waited out the aspens turning). Manafort’s lawyers responded to that saying, effectively, “psyche, we’d rather leave him where we’ve just claimed he can’t prepare for trial.”

Have I mentioned how TS Ellis really, really doesn’t appreciate being dicked around? Here’s the order he issued refusing Manafort’s effort to stay in Northern Neck. In the middle of a bunch of language calling bullshit, Ellis strings the bolded words together.

At 5:00 p.m. this evening, however, defense counsel filed a motion opposing defendant’s transfer from Northern Neck to Alexandria, despite having just complained about defendant being housed at Northern Neck.1 In the motion, defense counsel states that “issues of distance and inconvenience must yield to concerns about [defendant’s] safety and, more importantly, the challenges he will face in adjusting to a new place of confinement and the changing circumstances.” [citation omitted] However, defense counsel has not identified any general or specific threat to defendant’s safety at the Alexandria Detention Center. They have not done so, because the professionals at the Alexandria Detention Center are very familiar with housing high-profile defendants including foreign and domestic terrorists, spies and traitors. All these defendants were housed safely in Alexandria pending their respective trials and defendant’s experience at the Alexandria Detention Center will presumably be no different. Moreover, defendant’s access to counsel and his ability to prepare for trial trumps his personal comfort.

1 It is surprising and confusing when counsel identifies a problem and then opposes the most logical solution to that problem. The dissonance between defendant’s motion to continue and motion opposing transfer to Alexandria Detention Center cannot be easily explained or resolved. [my emphasis]

Meanwhile, the government (as I predicted) submitted a really cranky response to the motion to delay the trial. They provided a list of what discovery they gave to Manafort when, proving his wails about getting large dumps of information to be bullshit, noting among other things that, “The vast bulk of [the documents recently provided to Manafort are] documents from a bookkeeping service (NKSFB) that works for Manafort, who has had access to this material long before the government did.” (The device from which Manafort obtained discovery last week was Rick Gates laptop; Manafort received the rest back in June.) They also pointed out, in a number of different ways, that Manafort not only knew the trial was coming, but had brought all this on himself by refusing to waive venue in the EDVA charges, thus creating a second “rocket docket” trial he had to prepare for. They even quote from a Manafort jailhouse conversation a point Josh Gerstein made (which I quoted): that Manafort has always wanted the DC trial to go first.

That other reasons may account for this application is strongly suggested by a prison call in which Manafort discusses going to trial first in the D.C. Case and contends to the listener (who did not believe the D.C. venue was favorable) that the listener should “think about how it’ll play elsewhere….There is a strategy to it, even in failure, but there’s a hope in it.” Phone Call of Manafort (June 20, 2018), at 4:02-4:39.

Mostly, though, they call bullshit on his claims of duress in jail he had been in, citing liberally from his jail phone calls (made from his private phone).

Nor are the conditions of his incarceration since June 15, which he has not challenged, more restrictive than for other inmates (and in various ways less restrictive, as noted below), or unduly interfering with his ability to prepare for trial. It is incorrect that Manafort has “very limited access to his attorneys and the records.” Dkt. 110 at 6. In fact, Manafort has reported, in a taped prison call, that he has reviewed all discovery: Just days before filing his motion for a continuance, Manafort told the person on the call that, “I’ve gone through all the discovery now.” And he has had extensive access to his counsel and materials: On July 4, 2018, Manafort remarked in a taped prison call that he is able to visit with his lawyers every day, and that he has “all my files like I would at home.”

Specifically, contrary to Manafort’s assertions about his jail conditions, Manafort is in a private unit in which he can review materials and prepare for trial.3 Moreover, he is not confined to a cell. Between the hours of 8:30am to 10:00pm, Manafort has access to a separate workroom at the jail to meet with his attorneys and legal team. Visitor logs from the prison indicate that each week Manafort has had multiple visits with his legal team.

Manafort also has a personal telephone in his unit, which he can use over twelve hours a day to speak with his attorneys.4 According to prison telephone logs, in the last three weeks Manafort has had over 100 phone calls with his attorneys, and another 200 calls with other persons. Those telephone logs indicate Manafort has spoken to his attorneys every day, and often multiple times a day. Manafort also possesses a personal laptop that he is permitted to use in his unit to review materials and prepare for trial. The jail has made extra accommodations for Manafort’s use of the laptop, including providing him an extension cord to ensure the laptop can be used in his unit and not just in the separate workroom.5

3 Among the unique privileges Manafort enjoys at the jail are a private, self-contained living unit, which is larger than other inmates’ units, his own bathroom and shower facility, his own personal telephone, and his own workspace to prepare for trial. Manafort is also not required to wear a prison uniform. On the monitored prison phone calls, Manafort has mentioned that he is being treated like a “VIP.”

4 The defense representation that telephonic communication “is restricted to ten (10) minutes per call” is incorrect. Dkt. 110 at 3. Each phone call session is limited to fifteen minutes, but there is no restriction on the number of phone call sessions, meaning that Manafort immediately can reconnect with his attorneys whenever the fifteen minutes expires. For example, according to telephone logs, Manafort has had successive phone call sessions with his attorneys that have lasted over forty minutes. The attorney calls are not monitored.

The government even claims Manafort is still engaging in foldering, with the help of his lawyers.

5 Although the jail does not allow prisoners to send or receive emails, Manafort appears to have developed a workaround. Manafort has revealed on the monitored phone calls that in order to exchange emails, he reads and composes emails on a second laptop that is shuttled in and out of the facility by his team. When the team takes the laptop from the jail, it reconnects to the internet and Manafort’s emails are transmitted

In response, Manafort has written a filing that is not only cranky, but basically devoid of real argument. There’s the boo hoo hoo about the plight of poor white collar criminal defendants who have a phone in their own VIP jail unit (with what I expect we’ll learn is a bogus rebuttal of the claim he continues to folder messages to others).

In its opposition, the Special Counsel goes to great lengths to describe Mr. Manafort’s conditions of confinement and to contend that these have not had an adverse impact upon his preparation for trial. The Special Counsel’s opposition is self-serving and inaccurate. While the opposition does not generally misrepresent the confinement conditions,1 its cavalier dismissal of the challenges of preparing for back-to-back complex white collar criminal trials while the defendant is in custody shows a lack of concern with fairness or due process.

1 In at least one respect, the description of conditions is inaccurate. With regard to alleged email workaround, the Special Counsel is wrong. While it is possible for Mr. Manafort to provide counsel with information he would like communicated, any communication is then sent by counsel in a manner that is consistent with the rules of the detention facility.

There’s the laughable claim — which Manafort’s lawyers absolutely know is rank bullshit — that all jail phone calls are monitored by the private vendor who provides the service, even those to family members.

Moreover, the Special Counsel’s opposition further demonstrates its unlimited resources. Apparently, but unsurprisingly, the Special Counsel has taken the time to assign personnel to listen to all of the non-privileged phone calls Mr. Manafort makes from jail. Armed with personal conversations between Mr. Manafort and his family, the Special Counsel selects snippets to support its version of events. The Special Counsel does not pause to consider the reasons a detained defendant might have to make his situation sound better when speaking with concerned friends and family.

And there’s the sheepishness in being caught in asking for what they wanted from the start anyway.

The Special Counsel complains that Mr. Manafort is seeking a “months-long adjournment” suggesting that such a delay is not warranted by the situation. According to the Special Counsel, if additional time were needed, Mr. Manafort would have sought a delay of both trials. This utterly misreads the situation. The two months between now and the District of Columbia trial date would allow sufficient time to prepare for that case and simultaneously to prepare for the Virginia matter. Such a schedule would allow the District of Columbia trial to proceed as scheduled on September 17 and the Virginia case to follow with only a short period between the two. This would require only a single continuance of the Virginia trial and it would be defendant’s first (and only) such request. The defendant viewed this request as a reasonable accommodation under the circumstances.

After reading this reply, I came to realize that Manafort’s legal team is arguing as trollishly as the lawyers for troll king Yevgeniy Prigozhin, making arguments in bad faith in an attempt to cough up more discovery. Which may suggest the legal strategies are the same: to discredit the Mueller investigation and obtain as much sensitive discovery as possible.

I mean, can you be cited as a lawyer for pretending not to know that all jailhouse conversations are monitored?

Ellis has scheduled a hearing for next Tuesday to address the continuance and location change. But given that he’s thinking of Manafort in the same breath as he thinks of “foreign and domestic terrorists, spies and traitors,” I’m guessing he’s done with Manafort’s bullshit.

It all seems like this is coming to a head even more quickly than Manafort’s upcoming trial date. But given Manafort lawyer Kevin Downing’s insolence, I’m not sure that’s a good thing.

Some Issues of Timing Revealed by Manafort’s Filings

New disclosure statement: As you all know, 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. 

On Tuesday, Mueller’s team gave Paul Manafort the contents of Rick Gates’ electronic devices for the first time. Yesterday, after receiving another large dump of evidence, Manafort moved to delay his July 25 trial, a motion the Mueller team objected to.

Those are just a few of the details revealed by a slew of filings submitted in Manafort’s EDVA case yesterday. Those filings include:

  1. The government’s opposition to a motion Manafort submitted in June trying to keep all mention of the Trump campaign, the DC case against him, and the fact he got thrown in jail in the DC case from being introduced in his EDVA trial
  2. A motion to move his trial from Alexandria to Roanoke based on some crazy claims but ultimately boiling down to Manafort’s belief that if he is tried by a jury of his sleazy political influence peddling peers, he’s more likely to go to prison
  3. A supplement to Manafort’s bid to get a hearing on leaks, which includes January and February discovery request letters and two electronic communications describing a meeting between the FBI and the AP from April 2017; all of those exhibits are worth reading but I won’t deal with them here
  4. A motion to delay his trial until sometime after the DC one

It’s the first and the fourth items that I’m interested in here.

emptywheel’s Continuing Obsession with Paul Manafort’s 404(b) Notice

Folks seem to pretty much understand my continuing obsession with Paul Manafort’s iPod habit (or rather, his efforts to deem the seizure of his eight iPods improper). Perhaps less obviously interesting is my continuing obsession with the 404(b) notices in his two cases, which are the way lawyers fight over whether evidence of related crimes can be admitted in trial. In Manafort’s case, I think this fight may reveal something about how Mueller sees the various pieces of the puzzle fitting together.

As I previously noted, the government fought to delay disclosure of 404(b) in the DC case until June 15. When they did submit the 404(b) notice in that case, the government said they want to include evidence of three other crimes, two of which happen to be New York State crimes (the apartment in question is a Trump Tower one) that might be charged in the state.

Here’s the 404(b) motion. Mueller wants to introduce three things:

  • Evidence that one reason that Manafort and others arranged for [Skadden Arps] to be retained for the de minimis sum of approximately $12,000—even though they knew at the time that Law Firm A proposed a budget of at least $4 million—was to avoid certain limitations imposed by Ukrainian public procurement law.
  • Evidence that Manafort was treating a NYC apartment as a business property with the IRS but as a personal dwelling with a lender.
  • Evidence that Manafort structured intra-Cypriot funds to hide income.

The first of those two, of course, involve crimes in NY state.

In the EDVA case, I had suspected that the government asked TS Ellis to issue a discovery order to make it clear they wouldn’t provide 404(b) notice in this case until a week before trial — I got the date wrong but I think it’d be July 18 — but can move to avoid any pretrial notice.

So maybe that’s what Mueller’s trying to get Manafort to agree to. The EDVA standard order he’s trying to get him to use would require 404(b) notice by July 17, but permits the government to request avoiding such pretrial notice.

It is further ORDERED that, no later than seven calendar days before trial, the government shall provide notice to the defendant, in accordance with FED. R. EVID. 404(b), of the general nature of any evidence of other crimes, wrongs, or acts of defendant which it intends to introduce at trial, except that, upon motion of the government and for good cause shown, the court may excuse such pretrial notice.

Yesterday’s opposition to Manafort’s bid to limit what it can say about the Trump campaign and the DC case confirms I was (at least partly) correct — the government wanted a discovery order so they can avoid telling Manafort what they want to raise at trial.

The defendant’s request to preclude evidence relating to the District of Columbia case is a premature effort to preclude evidence under Rule 404(b). See Doc. 93 at 5 n.1 (“[T]his motion is being filed in the event that the Special Counsel seeks at trial to introduce evidence or advance arguments concerning ‘other act’ evidence.”). The standard practice in the Eastern District of Virginia, as referenced in the Government’s proposed discovery order (Doc. 83 at 7), is that the government provide notice of Rule 404(b) evidence it intends to introduce at trial seven days before trial. Although the defendant has not responded to the Government’s Motion for Entry of Discovery Order, the government intends to follow the District’s standard practice with respect to Rule 404(b) notice. It nevertheless bears noting that contrary to the defendant’s characterization, there is substantial overlap between the evidence in District of Columbia case and the one before this Court. The Superseding Indictment in the District of Columbia alleges tax fraud that overlaps with the substantive tax charges in the Eastern District of Virginia.

In other words, in a filing arguing that the government should be able to bring in details about both the Trump campaign (because some of the loans he’s being tried for he only obtained by getting the banker a position on the Trump campaign) and about Gates’ guilty plea in DC (but not about the crimes that Manafort allegedly committed while on bail that got him thrown in prison), Mueller’s team makes it clear they intend to wait to tell Manafort what other crimes they might mention at the EDVA trial until July 18.

In any case, this opposition motion would seem to limit how much Mueller can mention about the collusion case in chief to a description of that loan. So it’s probably just that Mueller has some other activity, akin to the NY based crime they plan to introduce in the DC case, perhaps some criminal activity that can be charged in VA, that they plan to introduce at trial. In any case, they’re not going to release it for another 10 days or so.

The big discovery dump

Sometime after 6:28 yesterday, Manafort submitted his motion to delay his trial to sometime after his other one. Now, as Josh Gerstein noted in response to my pestering him to review Manafort’s “rocket docket” strategy of splitting this trial from his DC one, Manafort lawyer Kevin Downing always wanted to do the DC one first.

Manafort attorney Kevin Downing requested the Virginia case be set for sometime in November, after the Washington trial. Downing told Ellis the defense needs time to assemble legal motions in both cases and to prepare for the back-to-back trials.

“This is a massive indictment,” the defense attorney said. “We were envisioning a trial in this case in November, following the case in D.C.”

So effectively, what Manafort did was wait until the very last minute, and then ask for what they wanted in the first place, this trial to go second. To justify the delay, his lawyers are citing the difficulties posed by him being in jail (which is a fair reason, but one most similarly situated defendants don’t get concessions for).

But I’m interested in the depiction of the latest discovery received that they also use to make the request.

Indeed, in terms of discovery, defense counsel has continued to receive voluminous amounts from the Special Counsel up-to-the-moment. Thus far, there have been twenty-three (23) discovery productions, the most recent of which was produced to the defense at 6:28 p.m. today, July 6, 2018 (i.e., the same date that this motion for a continuance is being filed)—a mere 19 days before the scheduled trial in this case. The Special Counsel’s production today appears to contain approximately 50,000 pages of new documents. Indeed, this is despite the Special Counsel’s representations earlier this year that discovery was complete, or nearly complete.4 In fact, since May the defense has received seven discovery productions which include at least 140,000 pages of material. The Special Counsel’s next most-recent disclosure—coming on July 3, 2018 (a mere 22 days prior to the scheduled trial)—includes data obtained from the primary cooperating witness’s personal electronic devices and will require extensive review and analysis. (This is the same witness who resolved his case in the District of Columbia in February of this year.) Moreover, defense counsel’s review of the discovery produced to date has been unusually timeconsuming because discovery relevant to this case has often been co-mingled with discovery that appears relevant solely to the D.C. Case. As the Court observed at the recent motions hearing, this is primarily a documents case, and defense counsel require additional time to thoroughly review and analyze with their client the voluminous documents produced by the Special Counsel. It is critically important for the defense to have sufficient time to review the discovery with Mr. Manafort because he understands many of the relevant documents (and their context) better than anyone else.

4 See, e.g., Doc. 20 (filed Feb. 28, 2018) at 7 (“[W]e believe that almost all of the relevant discovery in this matter in our possession has already been produced in the course of the District of Columbia prosecution.”); see also D.C. Case, Doc. 146 (filed Jan. 12, 2018) at 1 (“As of the date of this filing, the government has completed a substantial portion of the discovery in this case.”).

Now, I await Mueller’s response to this, as I suspect Manafort is obscuring that, to the extent it pertains to this trial, this recent discovery has more to do with Mueller’s obligations to give Manafort discovery on incriminating evidence against people who will be witnesses at the trial. He’s also obscuring how discovery happened in this case, which started coming 20 days after he was indicted in DC in October and for which the most pertinent materials were identified as “hot.” The full context of the document he cites in that footnote reads,

In addition, we believe that almost all of the relevant discovery in this matter in our possession has already been produced in the course of the District of Columbia prosecution. The government made its first production on November 17, 2017, which included: (1) foreign bank account records for the accounts in Cyprus and Saint Vincent & the Grenadines; (2) domestic financial records; and (3) documents from Manafort’s tax preparer that were identified by the government as particularly relevant. In ensuing ten productions, the government has produced a range of emails, financial documents and other records, as well as materials obtained from a number of different devices and media. 4 As of February 28, 2018, the government had made eleven separate discovery productions to the defendant. In addition, the government also has produced for the defendant documents that it identified as “hot.”

So Manafort had 7 months to review the most important discovery in this case working from home confinement. Manafort is also, surely, obscuring how much of this discovery pertains to the DC case (which is still two months away), not this EDVA one.

These motions were due on Friday in any case, and as Gerstein pointed out, Downing always wanted to do this trial after the DC one, so it’s unlikely this request for a continuance is a response to the discovery he got last week. And the late filing might be best explained by a late edit to incorporate yesterday’s production in the motion. The motion for a continuance is far, far better drafted than the goofy venue change one.

But I do find it interesting that Mueller is just now showing Manafort what he found in Rick Gates’ electronic devices. I wonder if, in doing so, he expected Manafort to rethink his willingness to run interference for Donald Trump? If so, then the request for a continuance would be rather interesting.