Monday, September 17, 2018

My Mostly Uninformed Speculation About What Manafort Will Dish

by Michael C. Dorf

Paragraph 8 of Paul Manafort's plea agreement requires him to "cooperate fully, truthfully, completely, and forthrightly" with the Mueller investigation. Does this mean that Manafort will implicate Donald Trump in the Russian effort to influence the 2016 presidential election or obstruction of the investigation? That depends on what Manafort knows, but it is difficult to believe that Mueller's team would have cut the deal it did with Manafort if not.

After all, Manafort was already facing prison time for his conviction last month in a federal court in Virginia, and the trial on additional charges in federal court in DC was very likely to go against Manafort as well. An ordinary prosecutor will often cut deals with defendants who would be easily convicted at trial simply to save resources, but (as Justice Scalia famously noted in his dissent in Morrison v. Olson), that sort of resource constraint plays a much less substantial role in the exercise of prosecutorial discretion by a special prosecutor. Mueller did not go easy on Manafort to avoid the uncertainty of a second trial or to conserve prosecutorial resources for other, more important, cases. Presumably Mueller cut the deal because Manafort had dirt to dish.

The question is what dirt and on whom.

The obvious but still not certain answer is collusion and obstruction dirt on Trump. I think that answer is probably right, but, as I'll explain, I think there is another possibility that cannot be ruled out based on what we know.

As various observers have noted, the Mueller investigation is proceeding more or less according to the standard formula for prosecuting the mob. You begin with the relatively low-level criminals. As they turn, you go up the ladder. Under this logic, you only cut a deal with any given defendant if doing so will help you prosecute a higher-up.

That logic strongly suggests that just as turning the heat up on Rick Gates landed Manafort, so turning the heat up on Manafort will land Trump. Other than Trump, there isn't really anybody up the ladder from Manafort. Charges against and conviction of Don Jr. or Jared Kushner would probably be seen as more sensational than the case against Manafort, but other than their familial connection to Trump Sr., they are not higher up the ladder than Manafort.

To be sure, the up-the-ladder logic is not an inviolable rule. You wouldn't cut a deal with Tony Soprano in order to get testimony against Christopher Moltisanti, but you might cut a deal with Christopher to get testimony against others at roughly the same level in the organization--Paulie and Silvio, say--especially if those others are more numerous or have committed more serious crimes.

Moreover, sometimes a prosecutor strikes a deal with a very bad actor to round up lower level figures in the organization. Maybe there are a whole lot of those lower level actors. Maybe the very bad actor was the only one to turn. Maybe others would have turned but the high-level bad actor snitched first. There are often strong elements of chance and unfairness in how these prosecutions unfold.

That said, such factors do not seem to be at work in the Manafort deal. Manafort did not turn first. On the contrary, he held out substantially longer than others in Trumpworld, earning him praise via Twitter from Don Donald for his bravery in refusing to break. Mueller's strategy all along appears to have been a classic up-the-ladder one, with Manafort as its penultimate target.

Again, the ultimate target appears to be the president, but there is at least one other possibility. Mueller's investigation has focused on: (1) Russian efforts to influence the election; (2) collusion by members of the Trump campaign in those efforts; (3) obstruction of the investigation (including obstruction of the investigation that preceded Mueller's appointment); and (4) other bad acts, mostly involving ties to Russia, that are independently worthy of prosecution and/or useful in turning up the heat on people who may have information related to (1), (2), or (3).

Manafort's attorneys made a proffer to Mueller's team in order to get the deal they got. That proffer would have outlined in some detail the sort of information Manafort can reveal. Presumably it was tempting enough to Mueller to give Manafort the deal he did. The question du jour is what Manafort proffered.

Some of Manafort's info could relate to obstruction, but that would likely be only a small portion of any obstruction case Mueller is building against Trump. Anyway, the public has already pretty much seen the obstruction smoking guns: (a) Trump's May 11, 2017 admission, indeed his boast, that he fired FBI Director James Comey because of the "Russia thing"; and (b) Trump's July 8, 2017 dictation of his son's false (or at best extremely misleading) claim that the June 2016 Trump Tower meeting was about adoption. If Mueller determines that these acts amount to obstruction of justice, he doesn't need Manafort to make the charges stick, and Manafort wouldn't be much use anyway, because he was long gone from Team Trump by the time of the relevant events.

Manafort could provide crucial details relating to point (2), however: collusion itself. Manafort was at the Trump Tower meeting. He can tell Mueller what happened there and may have information about Trump Sr.'s own knowledge and intentions at the time. He can also potentially provide Mueller with other evidence of Trump directing, participating in, or encouraging (beyond "Russia, if you're listening") Russian interference. My best guess is that Manafort has indeed proffered evidence of much greater involvement by Trump himself in the Russian efforts than has previously been revealed.

However, that is only a guess. There remains a possibility that Manafort's testimony and documents relate chiefly to the Russian interference itself, rather than collusion or obstruction. It's true that Mueller has already obtained indictments charging high-level Russian government agents with very specific illegal acts. Yet one cannot assume that Mueller is satisfied that he and his team have gotten to the bottom of the Russian efforts. How did Russia coordinate with Wikileaks? What role, if any, did Russian government officials play in the mysterious softening of the Republican Party platform with respect to Ukraine? Many questions remain unanswered, and Mueller appears interested in these questions. He can get some of the answers from other targets, like Roger Stone, but given Manafort's very longstanding relationships with Russians, it would not be surprising if much of Manafort's proffer concerns Russian interference itself, rather than collusion or obstruction by Trump.

Accordingly, while the Manafort plea is hardly good news for Trump, it might not be as bad as it looks.

3 comments:

Shag from Brookline said...

What if Mueller did not need to to make a deal with Manafort? I assume Manafort could have pleaded guilty to all of the charges to cut his legal and other expenses. This might suggest that Manafort indeed had much to offer Mueller. Trump's acceptance of Manafort's offer to take charge of the campaign may have come about after several private discussions between them that might have included the role that Russia might play in the campaign that Manafort might have expertise in. It's possible that such discussions were recorded, but I doubt it would have been by Manafort. While Manafort was prepared to work for free, he had to convince Trump that he could be an asset to the campaig and loyal to himn. One of Manafort's assets was his Russia connections. Also, Manafort was skilled in political convention tactics, which brings to mind the RNC change regarding Crimea after the Trump Tower Russia meeting.

Mike mentions Roger Stone in this post as among other targets. Manafort had a close business relationship with Stone going way back. Perhaps Stone might be considering flipping as a result of Manafort's flipping. Might Trump have consulted with Stone in deciding to accept Manafort's offer?

Joe said...

Dish? Will he go on The View?

Stumble said...

While I don't disagree with the analysis I think there is also a possibility that Manafort could provide lots of information about a wide range of criminal acts not directly related to the Trump investigation. In no particular order he could be sitting on information about

1) The Bank of Cypress (a Russian money laundering mega)
2) The Commerce Secretary's (Wilbur Ross) involvement in Russian money laundering thru the BoCypress
3) The use of Trump Towers as a keystone in money laundering operations
4) A list of Russian assets illegally held in the US

None of these of course deal with the election, but Manafort has been ensconced in this world for a very long time. Even if he can't provide all the serial numbers, if he can layout a road map to prosecutors about how it has operated it could be very valuable.