By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.
On Monday, special counsel Robert Mueller indicted former Trump campaign chairman Paul Manafort and business partner Richard Gates on twelve counts, including conspiracy against the United States and conspiracy to launder money, and various charges of failure to file Reports of Foreign Bank and Financial Accounts (FBAR), and failure to register as a foreign agent, concerning activities in the Ukraine that ended in 2014. (Read the indictment here.)
I’m not alone in pointing out that absent Manafort’s involvement in Trump’s campaign, his failure to register as a foreign agent– would not have been targeted, as many lobbyists are not conscientious in fulfilling this reporting requirement. See, for example, this National Review account:
The offense of failing to register as a foreign agent (Count Ten) may be a slam-dunk, but it is a violation that the Justice Department rarely prosecutes criminally. There is often ambiguity about whether the person’s actions trigger the registration requirement, so the Justice Department’s practice is to encourage people to register, not indict them for failing to do so.
Much has been made of the absence of any tax charges in the present indictment, one which alleges conspiracy to commit money laundering. The lawyers I spoke to weren’t unduly concerned about such seemingly missing counts, pointing out that the indictment can be amended later to include tax charges, as investigations proceed.
In fact, this indictment should probably be read as a warning shot– the first step in a lengthy, wide-ranging investigation. I was reminded by one lawyer I spoke to yesterday that special prosecutors have virtually limitless powers, and certainly no major lobbyist could expect to survive unscathed the level of scrutiny that will be brought to bear in this investigation.
Unsurprisingly, the New York Times published a piece reinforcing that line, Andrew Weissmann, Mueller’s Legal Pit Bull, that reads like the work of a legal fanboy, and the message of which is Be Afraid, Be Very Afraid:
Two decades later, Mr. Weissmann has turned his attention to a more prominent set of prospective conspirators: He is a top lieutenant to Robert S. Mueller III on the special counsel investigation into Russian interference in the 2016 election and possible links to the Trump campaign. Significantly, Mr. Weissmann is an expert in converting defendants into collaborators — with either tactical brilliance or overzealousness, depending on one’s perspective.
It is not clear if President Trump and his charges fear Mr. Weissmann as they gird for the slog ahead. It is quite clear, former colleagues and opponents say, that they should.
The million dollar question: Will this implicate or threaten Trump? So far, I think no. But we must all stay tuned– and pass the popcorn.
Bottom Line for Trump
One goal in indicting Manafort was to force him to give up the goods on Trump regarding alleged Russian collusion in the election campaign. Yet the offenses alleged in the indictment concerned activities in the Ukraine during a specific time period ending before Manafort’s campaign involvement. (The indictment also include a charge of making false statements to prosecutors in 2016, concerning these earlier activities.)
As the Wall Street Journal opined:
The most striking news is that none of this involves the 2016 election campaign. The indictment makes clear that Mr. Manafort’s work for Ukraine and his money transfers ended in 2014. The 2016 charges are related to false statements Mr. Manafort made to the Justice Department.
There’s reason to think Manafort might not have such goods to deliver. Recall that Trump initially brought Manafort into his campaign in March 2016, elevated him to campaign manager in June, and tied him in August, according to The Washington Post.
Now, there’s no denying that Manafort kept some very sleazy company (see, for example, this September post from John Helmer). The Journal noted (drily): “Mr. Manafort has lobbied for a rogues gallery of dictators, with the occasional domestic scandal (HUD contracts).” But lobbying on behalf of unsavory foreign clients this isn’t per se illegal (reminding me of Michael Kinsley’s quip, “The scandal isn’t what’s illegal, the scandal is what’s legal”.)
The Journal further notes:
One popular theory is that Mr. Mueller is throwing the book at Mr. Manafort so he will cop a plea and tell what he knows about Russian-Trump campaign chicanery. But that assumes he knows something that to date no Congressional investigation has found. Prosecutors typically try to turn witnesses before they indict, and Messrs. Manafort and Gates pleaded not guilty on Monday.
Issues With Manafort Indictment
In the interests of keeping this post of readable length, I’m going to limit my focus.
The National Review account cited above is worth reading in full. I am of course aware of the ideological slant of that publication, but I found little to fault in its analysis– admittedly, making the case for the defense and summarized thus: “On first glance, Mueller’s case, at least in part, seems shaky and overcharged.” Since Manafort has pleaded not guilty, he can and will draw on high-priced legal talent that will certainly make these and similar arguments, zeroing in on weaknesses in he government’s case..
In particular, while even this National Review account concedes that the failure to register as a foreign agent seems to be a slam-dunk (leaving aside the clear political motivation of taking a particularly Javertian line on this lapse), whether this will result in a win for the government isn’t wholly clear, due to possible prosecutorial overreach:
Specifically, Congress considers false statements in the specific context of foreign-agent registration to be a misdemeanor calling for zero to six months’ imprisonment. (See Section 622(a)(2) of Title 22, U.S. Code.) That is the offense Mueller charges in Count Eleven. But then, for good measure, Mueller adds a second false-statement count (Count Twelve) for the same conduct — charged under the penal-code section (Section 1001 of Title 18, U.S. Code) that makes any falsity or material omission in a statement to government officials a felony punishable by up to five years’ imprisonment.
Obviously, one cannot make a false statement on the foreign-agent registration form without also making a false statement to the government. Consequently, expect Manafort to argue that Mueller has violated double-jeopardy principles by charging the same exact offense in two separate counts, and that the special counsel is undermining Congress’s intent that the offense of providing false information on a foreign-agent registration form be considered merely a misdemeanor.
Possible Fourth Amendment Violations Taint Manafort Evidence?
Continuing with another potential defense argument, I’ll mention another possible problem with the government’s case, discussed in a Rachel Stockman opinion piece published by LawNewz. Again, lest I be accused of pro-Manafort or– shudder– pro-Trump bias, I want to emphasize if I can spot these issues and develop such arguments, based on on-line research, assorted back and forth email exchanges, and telephone calls conducted over the last couple of days, certainly Manafort’s defense team will do this and more– so please do not shoot your humble messenger.
While calling the indictment “very detailed and well-documented” Stockman continued:
there is one area that could hurt Mueller’s investigation. Mueller’s team may have obtained evidence in the raid of Paul Manafort’s home that was not covered by the search warrant. That could be problematic.
In a surprise raid on July 26th, FBI agents busted into Manafort’s home in Alexandria, Virginia to collect documents and other materials related to the FBI probe into whether the Trump campaign colluded with the Russians. At the time, Manafort’s attorney raised concerns about how the raid was conducted. In order for the feds to obtain a warrant, a federal judge would have to determine that probable cause existed that a crime was committed. As part of the warrant, investigators attached an affidavit which contained a list of items that FBI agents hoped to collect. That’s where the trouble appears to be in Manafort’s case.
The key issue is whether this constituted an illegal search, and exactly what was seized. Here, the Stockman piece relies on a September CNN report:
During that raid, Mueller’s investigators took documents considered to be covered by attorney-client privilege, sources told CNN.
Lawyers from the WilmerHale law firm, representing Manafort at the time, warned Mueller’s office that their search warrant didn’t allow access to attorney materials. The documents in question have now been returned, the sources say.
The episode raised questions about whether investigators have seen materials they weren’t entitled to obtain.
“You can’t unsee something,” one source said.
It’s not an uncommon problem in FBI investigations. US attorneys typically have separate document-review teams to prevent investigators from handling materials they aren’t allowed to have. It’s not clear what procedures Mueller’s office uses.
I’m not taking a position on this issue one way or another, but merely flagging this as a potential problem for the government’s case.
Attorney-Client Privilege Pierced
Finally, I’d like to mention a another LawNewz opinion piece, this by Elura Nanos, which spotlights a potential problem for the defense. The piece discusses a Memorandum Opinion, unsealed at the end of October, in which D.C. federal district court chief judge Beryl A. Howell compelled grand jury testimony from a lawyer representing Manafort and Gates under the crime-fraud exception to attorney-client privilege. The attorney-client privilege isn’t absolute, and judges can order an attorney’s testimony if it falls within certain exceptions.
Over to Nanos:
Now we know that the grand jury proceedings culminated in indictments, and Judge Howell’s ruling on the this motion to compel testimony is more than a little foreshadowing. The Court’s opinion on this issue allows us to peek into the generally secret grand jury proceedings, and that peek isn’t looking so good for the defendants.
Now, frustratingly, Judge Howell’s opinions was heavily redacted– interested readers may wish to click the link above to see just how extensively for themselves. I’ll again rely on the Nanos account which lays out the key concern:
The court’s memorandum was heavily redacted, so at this point, it’s unclear which statements the judge meant, but this portion of the document sure sounds bad for the defendants:
“… the above statement is false, a half-truth, or at least misleading because evidence shows that Target 1 and Target 2 were intimately involved in significant outreach in the United States on behalf of the ECFMU, the Party of Regions and/or the Ukrainian government.”
Yeah, things can change at trial, but even at a preliminary phase, it’s not good for a judge to make a finding that you’re “intimately involved” in sinister foreign misdealings. Oh, and there was also this:
“Through its ex parte production of evidence, the [Special Counsel’s Office] has clearly met its burden of making a prima facie showing that the crime-fraud exception applies by showing that the Targets were “engaged in or planning a criminal or fraudulent scheme when [they] sought the advice of counsel to further the scheme.”
Those seven little letters should strike fear in the hearts of Manafort, Gates, and their lawyers. The SCO hasn’t just met its burden – it’s done so clearly. Allow me to translate from judge-to-English: “You guys are screwed. Take a plea or watch everyone around you– even your own lawyers — go down.”
For more in a similar vein lauding Mueller’s “serious, deliberative, and far-sighted inquiry”, see this Atlantic account, which extensively discusses the plea agreement of Trump foreign policy adviser George Papadopoulus– and which I lack space to discuss further in this Manafort indictment post.
Trump Response
I’d like to point to a New York Times piece, headlined In Call With Times Reporter, Trump Projects Air of Calm Over Charges that suggests that Trump is managing to keep it together, and dare I say it, respond to the Manafort indictment in a ‘presidential’ way– in the traditional pre-Trumpian sense of that word.
Permit me to quote from the Grey Lady’s account at length:
President Trump projected an air of calm on Wednesday after charges against his former campaign chief and a foreign policy aide roiled Washington, insisting to The New York Times that he was not “angry at anybody” and that investigations into his campaign’s links to Russia had not come near him personally.
“I’m not under investigation, as you know,” Mr. Trump said in a brief telephone call late Wednesday afternoon. Pointing to the indictment of his former campaign chief, Paul Manafort, the president said, “And even if you look at that, there’s not even a mention of Trump in there.”
“It has nothing to do with us,” Mr. Trump said.
He also pushed back against a report published Monday night by The Washington Post, which the president said described him as “angry at everybody.”
“I’m actually not angry at anybody,” Mr. Trump told The Times.
The phone call seemed intended to dispel the impression of a president and a White House under siege. The indictment of Mr. Manafort and his longtime deputy, Rick Gates, on Monday came as little surprise to Mr. Trump or his team, and they were relieved that the charges were not directly related to last year’s campaign. Instead, both were indicted on charges including money laundering, tax evasion and failing to properly disclose lobbying on behalf of foreign governments.
32 comments
Comments are closed.
David Stockman (the father of Rachel Stockman quoted above) offered an hilarious take on Mueller’s most minor defendant, “Baby George” Papadopoulos:
As Judge Napolitano observes today, “In a profound miscarriage of justice, federal law permits FBI agents to lie to us but makes it a crime for us to lie to them.”
Which is why you should NEVER cooperate with an FBI agent, no matter what.
According to our local rag, our moron governor is now a Russian stooge too: http://www.pressherald.com/2017/11/01/russian-facebook-pages-targeted-lepage/
Odd that the comment section has quite a few true believers chiming in – I was expecting to see the usual right winger commenters tearing it apart. Those that did try to counter the propaganda didn’t ask the obvious questions. Which “Russians” specifically were involved and were they they only ones who repeated LePage’s nonsensical ramblings or did many thousands of US affiliated posters also take Lepage to task? Is there any evidence that people from foreign countries other than Russia had accounts that posted political content and if so, is it illegal to do so, and if it is not , why is this being brought up at all?!?!?!?!?
For those who Boris might not have contacted yet, this is regarding Lepage’s ridiculous comments from a year or two ago that black drug dealers were stealing into Maine and impregnating all the white women.
Does anyone know who this alleged Russia-allied professor is yet? Shouldn’t be too hard to figure out. Kind of strange that they weren’t named.
Russia probe could derail Trump nominee for top Agriculture post [CNN]
Someone at the WH seems to be worried enough to pull the plug on what would be a terrible appointment.
Even if this is Mueller’s only accomplishment, he will have earned his salary.
> Even if this is Mueller’s only accomplishment, he will have earned his salary.
I had thought the Office of Special Counsel was established to “ensure a full and thorough investigation of the Russian govemmenfs efforts to interfere in the 2016 presidential election,” not as an instrument faction. Did I not get the memo?
The “memo” includes:
I’m not sure getting an Administration nomination pulled falls under the heading of “directly.”
If the OSC is a criminal investigation, let it be so. If the OSC is the tool of choice to impede the Trump administration, let it be so.
But let’s not call it the first, and then act like it’s the second.
I think many are happy that it has the power to be both. Which it clearly does. Our constitution doesn’t work anymore so it’s all fair game. Block Supreme Court justices, shut down government, hell, default on the debt and launch a nuke. Let’s not act all serious here. No one in the White House is. Why should the lawyers?
I wasn’t suggesting that the special counsel was targeting Clovis.
But if non-scientist Clovis not getting to be the USDA’s top scientist is due to collateral damage from an otherwise legitimate criminal investigation, I’ll take it.
And if the prosecution of Manafort results in more prosecutions or even just cracking down on unregistered foreign lobbyists, and it’s done on an equal opportunity basis,
I’ll take that, too.
Oh, I don’t know — he said NAFTA was a bad idea, and a few other goodies, back before he ascended to the Oval Orfice…
More to the point, he did correctly state that “The American legal system is broken and dangerous.” http://nypost.com/2017/02/11/trump-calls-us-legal-system-broken-and-dangerous/ Another “right on, for the wrong reasons.” Maybe not pointing to the details NC participants think of and understand, like the Prison Industrial Complex and judges taking spiffs for sending inoffensive juveniles into its gulags, or the blind eye turned to grotesque violations of all kinds of laws, from pollution to public safety to “corruption” and all the stuff our blessed Ruling Elite gets a pass on (and of course “the laws” are under constant pressure from the imperial manipulators from K Street and corporate headquarters so they become weaker and disappear (Glass-Steagall, e.g.). But Trump’s tweet strikes this former lawyer as exactly correct as framed, if not in the instances he cites, though “immigration law” with its cruelties and selective enforcement and all the rich sh!ts who use “illegals” as house and estate slaves is pretty “broken,” from the standpoint of us mopes who still cling to tattered, bloody shreds of the notion of America as a Shining City on a Hill…
As a former state prosecutor of 34 years experience, I think that the post above misses the boat on where this indictment leads. The case against Manafort and Gates is about using fraudulently obtained real estate loans and payments from offshore banks to launder money that hadn’t been reported under a FinCEN FBAR. It’s a money laundering case.
I doubt that Mueller is trying to “roll” Manafort and Gates on President Trump or anybody else. By filing a criminal case in a part of the investigation that is complete, he sets up Obstruction of Justice if the executive branch tries to fire him and shut down the Special Prosecutor’s Office. Brilliant move.
Mueller’s next targets are more likely Ivanka, Jared, and Donald Jr. They have been documented making false statements about the ownership and valuation of real estate for years. The Trump Organization and the Kushner Group have long been in the business of selling real estate to people who want to use it as collateral to launder money through bank loans. Might Jared, Ivanka, and Don Jr. have made false statements in order to help their clients monetize their properties? Trump Sr. isn’t “hands-on” at the Trump Organization, but they are. What better way to get under Trump’s skin than through his children? I love it.
Oedipus wrecks.
I’ve noticed so many ancient Roman like features of our monarchy as of late, and that would be a fitting end.
An aggressive prosecutor can always find an excuse to bring charges against anyone, is what you’re saying?
Money laundering indeed. Reading the Manafort indictment in association with Craig Unger’s July 13, 2017 article in the New Republic, “Trump’s Russian Laundromat” makes me wonder if Mueller isn’t simply foreshadowing his real target.
By that logic, the target of Mueller’s inquiries should be the banks and other persons participating in the laundering, not the seller of the real estate.
RESPA makes banks and title companies responsible for money laundering compliance, not sellers.
If you money is dirty, and you know it, you’re a prosecutor’s target.
Drug dealers and tax scammers go to prison for money laundering all the time, so I don’t understand the ‘bankers are only responsible’ meme I see here.
You have to have a precedent crime. There is no crime alleged here prior to the supposed money laundering. So it’s awfully hard to see how this money laundering claim works.
The underlying crimes by Manafort and Gates were the failure to report foreign bank accounts on the FinCEN FBAR and the failure to register as the agents of a foreign government. The money laundering was part of a conspiracy to hide those crimes.
Mueller isn’t telling us what else he has up his sleeve. We know that kleptocrats have been using fraudulent real estate loans on properties purchased with off-shore money to monetize real estate. If the money is “clean,” they probably don’t need to go to all this trouble. We can only speculate what they are hiding, because we don’t have access to the information sources that Mueller does.
I’m just sharing my educated speculation as a former prosecutor that many of these real estate loans are for the purpose of laundering ill-gotten gains, as Manafort’s were. Under the post-Watergate criminal law regime, the cover-up is always punished more severely than the underlying crime.
True, unless the seller warrants the buyer’s title to a subsequent lender on a property that was purchased by an anonymous buyer, as many Trump properties have been.
It’s not the purchase that launders the money. It’s the later monetization of real property by way of refinancing that nailed Manafort.
Those more knowledgeable in the law will correct me, but my impression is that for there to be money laundering, the money laundered has to be obtained through a criminal act; otherwise, you’ve just got complex financial schemes that wealthy people use to obfuscate their wealth. I don’t think it was criminal to take the Ukrainian’s money — and if it is, who among us, etc. — ergo no laundering.
Others have made that argument, that there are no tax claims, and you need crime as a precedent for money laundering. Taking fees from sleazy dictators is not a crime. In his filing Thursday, Manafort further argues that his foreign accounts either had been closed or had “nominal” balances, and more important, he had transferred the money into the US through US banks. Moreover:
https://lawnewz.com/opinion/here-are-the-serious-problems-with-muellers-indictment-of-paul-manafort/
This “legal analysis” is complete poppycock, written by a notorious apologist for the Trumps. If you don’t believe me, Chief Judge Howell’s rulings on attorney-client privilege also suggest that Mueller’s team are on solid ground.
It’s not the crime. They were minor. It’s the cover-up.
If the White House is all, like, “No, the crimes my campaign manager committed were ‘prelude’ to the skulking for which I hired him. Everything’s fine. Michael Flynn, my original hatchet person, is still tip-toe-ing around, and that is in no way, ‘strange’. I am calm, ‘you’re the one that looks nervous’,” than it’s, all like, 70’s AM radio from here on out. –Sniff. You’re thinking about when three-quarters of the way into a Scorsese flick, all the torpedoes are getting clipped left and right, flash cuts choreographed to an uplifting piano riff, aren’t you? C’mon, you guys, stop it. Be serious.
No kidding. Otherwise, AIPAC would have been forced to register under FARA long by now!
Israel is a foreign country?
Of course Israel is not a foreign country. Remember Bibi on the Senate floor back in 2015, explaining what US foreign policy should be? How could he have been doing that if he were some kinda foreigner?
Thank you for this roundup and analysis.
I noticed two glitches.. “National Journal account” should read “National Review account”. Right? The NJ being a publication in its own right, but the excerpt beginning “Specifically, Congress…” is still from the same Andrew McCarthy piece.
And
The word “you” in “I was reminded by one lawyer I spoke to you yesterday…”
Both glitches now corrected. Thanks for reading this so carefully and drawing these nits to my attention.
Thank you for this piece. It answers my questions from yesterday’s Water Cooler on the crime-fraud exception (well, it answers some of them, and confirms that the areas I thought would be difficult are indeed so).
Ken Starr mad a handsome fortune off of the backs of the tax payer for basically a stain and a fib. Mueller will undoubtedly make a fortune off our backs as well. It’s how the game is played in DC. At the end of the day, it’s a money shuffle where the big boys take their money, buy an island and a yacht trade in their old wives for the new younger model and head off into the sunset while we are left to pay the bills.
Brexit and Trump are symptoms, not the cause.
The elite believed in neoliberal globalisation unaware that’s its architects had taken a short cut that would lead to catastrophic consequences. They had used 1920s neoclassical economics, stuck some complex maths on top and told everyone it was a new and scientific economics.
It still had the same problems it’s always had.
The 1920s roared with debt based consumption and speculation before tipping over into the debt deflation of the Great Depression. No one realised the boom was debt fuelled as their neoclassical economics didn’t look at private debt.
“Stocks have reached what looks like a permanently high plateau.”Irving Fisher 1929.
The profits of globalisation ended up in tax havens and concentrated with the few at the top.
2017 – World’s eight richest people have same wealth as poorest 50%
US wealth distribution:
http://static5.businessinsider.com/image/557ef766ecad04fe50a257cd-960/screen shot 2015-06-15 at 11.28.56 am.png
Inequality soon rose to 1920s levels.
The West roared like the 1920s (it was all running on debt) and then the Minsky Moment arrived 2008.
UK:
https://cdn.opendemocracy.net/neweconomics/wp-content/uploads/sites/5/2017/04/Screen-Shot-2017-04-21-at-13.53.09.png
US:
https://cdn.opendemocracy.net/neweconomics/wp-content/uploads/sites/5/2017/04/Screen-Shot-2017-04-21-at-13.52.41.png
1929 and 2008 are the same it’s just a different asset class involved, real estate instead of stocks. It’s the same neoclassical economics that doesn’t look at private debt and so no one can see the problem as its building.
Ben Bernanke can see no problems ahead in 2007 because he’s not looking at private debt, just like Irving Fisher before him.
The financial system crashes and the tax payer’s bailout the bankers, now there is no money for the services the poor used to enjoy. The elite messed it up and took the profits, the poor must pay.
The people have strange old fashioned ideas about fairness and they are not happy, they want change.
They tried Obama change but nothing changed, Trump was their only hope.
Austerity looks like a good answer when you are a neoclassical economist that doesn’t know what they are doing.
The IMF predicted Greek GDP would have recovered by 2015 with austerity.
By 2015 it was down 27% and still falling.
What did our neoclassical economists get wrong this time?
They weren’t looking at Greece’s private debt and the repayments on the debt built up on the boom. The IMF pushed Greece into debt deflation.
The neoclassical half-wits are still beating the austerity drum so let’s meet the man that explained things to the IMF, Richard Koo.
https://www.youtube.com/watch?v=8YTyJzmiHGk
Mark Blythe has looked at the empirical evidence from the Euro-zone.
In the Euro-zone austerity has been shown to damage the economies that undergo it and, the harsher the austerity, the worse it is.
https://www.youtube.com/watch?v=B6vV8_uQmxs&feature=em-subs_digest-vrecs
Neoclassical economics is Mickey Mouse economics that doesn’t look at private debt making
austerity seem like a sensible solution when it isn’t.