Mueller’s “Smoking Gun” Motion and FORFEITURE! versus the Suits’ weak “Witch Hunt Defense”

Met Arxlan / Flickr It is not clear who is...
Met Arxlan / Flickr

Mueller would not bring such an explosive motion at this time particularly if he didn’t have the fireworks to back it up.  Mueller’s Motion on the issue of the grounds for revoking Manafort’s bail due to witness tampering was to the point, concise, and direct. The Manafort “Suits” team filed a dismissive, contemptuous response accusing Mueller of bringing a baseless Motion to taint the potential jury pool, citing various news articles indicating the explosive nature of these “meritless” charges.

[I apologize I don’t know how to embed the actual legal documents (which I was reading over at TPM Prime,) and my laptop just crashed so I’m typing on my ipad.  I would be happy to have someone else embed the actual briefs in a comment and I’ll try to revise to include link.]

The following somewhat rambling analysis may be of interest only to the legal community and people (like me) who like Murder She Wrote and Columbo.  Here goes (Imagine Angela Lansbury describing a “plot so foul”):

The Mueller Motion set a trap — trap I didn’t see until after I saw the Manafort Reply, and I’m guessing Manafort’s lawyers didn’t see it either or they wouldn’t have fallen into it.

Full disclosure — I was a Trial Attorney in the Civil Division of DOJ back in the mid-seventies.  I long ago retired from the practice of law (and have no criminal law experience) so may not remember some of the legal details. I cede to current practitioners to fill in any holes in my analysis.

The Facts:  The Government filed the Motion, and  Manafort’s  3-lawyer legal team (“the Suits”)  filed a fairly cursory  Reply.   The Government has The Last Word on this one because Mueller has one more crack when he files the government’s Response to the Manafort Reply brief.  So what’s the trap?

Mueller’s Motion concisely and without much detail sets forth the causes of action, relying on some short texts and inconclusive sounding communications from two numbered witnesses.  It’s pretty cursory, and doesn’t  provide any actual “evidence” of what was said during what appear to be brief conversations lasting a minute or two.  There wasn’t much “there” in Mueller’s motion.

In their Reply, Manafort’s Suits  jumped on this alleged vagueness and asserted that the amount of information in the few texts and writings provided by the Government were too inconclusive and  failed to show any “corrupt intent” (an element of proof for the crime of witness tampering).   The Suits argue the Motion doesn’t provide sufficient facts to prove the government’s case.  They then examine every case cited  by the Government in which witness tampering was found, and say the government has not shown any similar kinds of contacts here (which they concede constitute witness tampering).

They then berate the Government and accuse it of bringing this Motion as a publicity stunt — from now on I’m calling this the GOP “witch hunt defense” — because the Government has “GASP!” FAILED to provide even one Declaration from a witness indicating that anything like such comments was said in any of these brief and totally legal communications by their beleaguered but innocent client, Paul Manafort.  [My head is reeling: Do they really believe Mueller doesn’t have back up documentation?  Are they seriously that stupid?]

Keep in mind:  This Motion is about whether to allow Manafort to remain under house arrest pending trial in September or whether to jail him now.

Manafort’s lawyers just opened a door they could have left shut until trial (and maybe kept their client home on bond. ) had they simply argued that their client should be allowed to remain at home pending trial on the witness tampering issue as on the others, since no “probative evidence” had yet to be shown etc. other than these few texts, which they should have admitted are sufficient to show “probable cause” but not to show proof “beyond a reasonable doubt”, which the jury will have to decide at trial.  Such an argument at least theoretically gives them a chance to keep him at home until trial.

Instead, they DARED the prosecutors to provide evidence, and opened the door for the Government to put in all the evidence it wants.  OUT IN THE PUBLIC DOMAIN.  SO WE CAN SEE IT.  NOW. The information that is exactly what the GOP doe NOT want us to see and would scream bloody muder about “leaks” if it got out otherwise  

Manaforts” lawyers have just opened the door for Mueller to say IN HIS RESPONSE that will be in the public record:    “You want proof?  You want proof?  I got your Declarations and Testimony right here.”

Have they forgotten that the witnesses themselves contacted the government.?   Mueller has maneuvered the Manafort lawyers into “forcing” him to release evidence of Manaforts‘ witness tampering to the public in the form of sworn declarations that will show EXACTLY the same types of behavior that Manaforts’ own Reply agrees is the standard to show “corrupt intent”.  In other words,  to “prove” corrupt intent.

Meaning Manafort probably will await trial in federal custody unless the president of the United States wants to step out publicly and pardon someone convicted of witness tampering who is one of the prime figures of the Russian investigation.

The standard of proof to bring the motion that Mueller needed to meet was only “”probable cause” . . which requires generally minimal evidence with the expectation that the “evidentiary proof” will be submitted at trial, after discovery etc.  The proof needed at trial to convict is “beyond reasonable doubt”.  That’s the highest standard of proof (the best example being “the smoking gun”).  The government didn’t need to provide it to prove probable cause.

BTW:  One of the biggest issues in the Motion that has received scant attention is that Mueller indicates he is going to seek FORFEITURE of any assets linked in any way, directly or indirectly to the $75,000,000 in laundered money. FORFEITURE!  ALL OF MANAFORTS’ ASSETS linked in any way to money laundering . . No matter where those links lead . . . .

[To digress:  Manafort’a lawyers are pretty obvious in their “contempt”  for the “bureaucrats and career DOJ lawyers like Rosenstein and Mueller.  They are badly underestimating the DOJ career attorneys.  The career DOJ lawyers I worked with in the almost four years I was there were the finest lawyers I encountered in twenty years of practice in such bastions of “lawyerdom” as Beverly Hills or Century City,  They are leagues ahead of the Michael Cohens and the Davidsons and the Giulianis and the rest of the bottom feeders they go up against routinely Mueller and Rosenstein [who are cut from the same what we used to call “Republican”  cloth,] are men of integrity and impeccable honor who have served their countries with UNIMPEACHABLE distinction] .  End of digression.]

To summarize:   The Mueller  Motion and superseding indictments on witness tampering had their genesis when one or both of the unidentified witnesses reached out to the Government to disclose that they had been contacted by Manafort (they apparently felt unconfortable with the contact).  Mueller intentionally provided a bare bones Motion just enough to support Probable Cause. Defendants’ Response alleges that the allegations are too vague and the evidence in support is too inconclusive and doesn’t show enough evidence of corrupt intent.

They then accuse Mueller of not providing enough information of what was actually said and they FAULT Mueller for not including any declarations from the actual persons identified indicating anything specific that would show the kind of activities that constitute witness tampering (which they concede would be shown by the types of activities included in the Motion’s citations).   The only way this makes sense is if they KNOW FOR A FACT that Mueller does NOT have anything more than just the intercepted texts.  That he doesn’t actually have any declarations or communications.  They’re betting that the evidence in the Motion is all he’s got.

Who wants to bet that Mueller does NOT have Declarations and Statements from these witnesses, and that he had them before even thinking about bringing this Motion? Mueller, who until now has been unable to put anything out to the public to counter the GOP’s now-standard “witch hunt defense” has just been given the green light by the Suits to put into the public domain the smoking gun for the CRIME of  witness tampering.  Which could very well lead to seeing Manafort do the perp walk on June 15.   The Manafort Suits are a joke or are taking this Motion as a joke or they have begun to believe their own hype.  They have nothing else to rely on but the now standard   “witch hunt defense”.  Maybe they are relying on a pardon.  But they can’t pardon their way out of State money laundering charges.

I’m going out on a limb: Perp walk for Manafort on witness tampering June 15th. Just a little taste of justice to keep the country going until Mueller completes his invetigation.

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