Special Episode: Manafort, Gates, Papadopoulos
From CAFE and WNYC studios, this is a special edition of Stay Tuned. I’m your host: Preet Bharara. So, it feels a little odd to be doing a special edition. I’m sitting literally in my living room at noon on Monday, October 30th with all sorts of breaking news swirling around, including the indictment of Paul Manafort, his so-called protégé Richard Gates and, to my mind even more significantly, a separate guilty plea by a gentleman probably most people hadn’t heard of: George Papadopoulos, who used to be a senior foreign policy adviser to the Trump campaign.
First, let’s talk about the Manafort and Gates indictment. Number one: the fact that you have an indictment against two individuals literally only five or so months after Mueller was appointed shows that he is moving quickly and aggressively. In my experience, it takes a while to put together cases like this. If you look at the indictment, which I’ve only reviewed fairly quickly, it is incredibly detailed, it’s incredibly explicit. There are lots and lots of details about particular bank accounts, particular money transfers. It takes a while usually to get all that information together, to put it together with such precision and a lot of the charges–although they might not be the charges that some people were looking for–these are the charges the special counsel and his team thought were right and just to bring. And just at least at first blush it looked to be pretty strong and pretty straightforward. Among the charges are allegations–and remember Paul Manafort and Richard Gates are innocent until proven guilty under our system. On the one hand, it is true that the allegations don’t relate to Paul Manafort’s time as campaign manager to Donald Trump. On the other hand, these are charges against the former campaign manager to Donald Trump and no small potato in the Trump orbit. He was the campaign manager for a number of months. He ran the convention for the Republicans where Donald Trump was the nominee. He oversaw the creation and drafting and final execution of the Republican platform for Donald Trump. And it’s also my understanding that he was the one who recommended Mike Pence to be the Vice President of the United States, so a significant figure in Trump’s orbit.
The purpose of Robert Mueller, as I understand it, is to be a neutral independent prosecutor, to look at matters that other people might not be able to be neutral about.
Here’s another question that keeps coming up and that is: why on earth is Special Counsel Mueller investigating and prosecuting things that don’t relate specifically to collusion with Russia, which at first blush it appears the indictment against Manafort and Gates don’t relate to. You have to take a step back. The purpose of Robert Mueller, as I understand it, is to be a neutral independent prosecutor, to look at matters that other people might not be able to be neutral about. Part of that ambit is Russian collusion or what happened during the prior election, but it’s also the case that to the extent there were investigations already pending–and in this case we know that the FBI was already looking at Paul Manafort before the appointment of Special Counsel–to the extent that there were investigations already pending against a close associate of the president of the United States, the most logical place for that investigation to continue would be under the umbrella of Special Counsel Robert Mueller. Just because you’re an associate of the president and there was an ongoing investigation against you as it appears there was against Paul Manafort, you don’t get a bye and you don’t get away with it.
Now the two options would have been that the investigation against Paul Manafort that predated Bob Mueller gets done by some other entity in the Justice Department: at Main Justice or a U.S. attorney’s office—or under Bob Mueller. And given the importance of independence and neutrality and fairness which by the way enures to the benefit not just of the public but also to the president, it makes logical sense that that’s why this investigation and prosecution is happening under Bob Mueller’s watch. I think that’s a point that’s really, really frequently missed in all the coverage you’re seeing today.
Now when the news first broke this morning somebody asked me this morning, “Are they trying to flip Paul Manafort?’ And I said, “Well generally in the federal system we try to flip everybody.” So, what’s flipping? It’s simply a term that describes a person who is under scrutiny by law enforcement, who agrees in exchange for leniency, potentially, to cooperate and testify against someone else or provide information about someone else. And usually it’s to provide information that’s incriminating about someone whose higher up in the food chain in any criminal conspiracy or criminal organization–that’s what flipping is. So just to be very plain about it and oversimplifying it a little bit, in Manafort’s case it would mean if he were to flip he would provide information about someone else, Trump, or someone lesser than Trump in exchange for potential leniency by a judge.
Generally speaking you’re not going to flip a guy to testify against someone who is lower in the food chain.
Now before you flip someone there’s some criteria that most people consider. One is you have to actually own up to your own crime. So, if you’re not prepared to plead guilty to your own crime you’re not a cooperator possibility. The second thing is you actually have to have information of value about someone else and then the third thing is and this is — you know has a sort of moral dimension to it. Generally speaking you’re not going to flip a guy to testify against someone who is lower in the food chain. You want to flip somebody who’s able to get you somebody higher up because otherwise it doesn’t make a lot of sense and doesn’t seem quite fair. So, it may be the case that Paul Manafort, after having been charged with this crime and he sees the difficulty that he’s going to have defending it, may decide to flip and provide evidence. But it will depend on whether or not he’s really prepared to be remorseful and responsible for his conduct and that he has real information about other people. And the final point I’ll make is not only do you have to be prepared to come forward and testify about someone else higher in the food chain, but that testimony has to be credible, believable and corroborated. You can’t come out and simply say, “Hey I know this stuff about Trump or anyone else.” This brings me to what I think is maybe the most significant news of the day. That process apparently has already happened and already been concluded with another individual who I mentioned: George Papadopoulos, who is a high level foreign policy adviser to Trump that most people have never heard of.
So, a couple of things about George Papadopoulos. Number one: his conviction, guilty plea, shows that Bob Mueller’s team has already had some measure of success. Whatever anyone says about “witch hunt” or “waste of time and money,” they have a criminal conviction against an actual human being who was part of the Trump campaign. That’s not a small thing. Second point: the purpose of flipping someone and getting them to cooperate is not an end in and of itself. It’s a tool for prosecution of other people down the road. It does not always pan out, but typically speaking when I used to approve–in my office, when we approved a cooperation agreement against someone it was because we thought that they would be a vital tool to prosecuting someone else. It doesn’t always work out, but that’s the intention and that’s what I believe is going on here. Who those people might be, it’s unclear, but if you go through the effort and time to debrief someone, offer them the potential for leniency–which is a significant gift that prosecutors give and don’t love to give it unless you’re going to get something substantial in return–there will be no point in doing it.
Let me just make another point about people who flip, about cooperators. There are two kinds. There are proactive cooperators and historical cooperators. A historical cooperator is somebody who is prepared to testify about things that happened in the past and the record has been set in his or her recollection–it is what it is and the corroboration is what it is. A proactive cooperator, which is kind of the holy grail of federal prosecution, is somebody who flips and becomes a cooperating witness for the government, but nobody knows and that person can–at the direction of law enforcement on an ongoing basis in real time–collect evidence, whether it’s by wearing a wire or talking on the phone with somebody, when that phone call was recorded, to get incriminating evidence of other people higher in the food chain in real time. I mean as the paperwork reveals, George Papadopoulos was picked up in July at the airport and didn’t plead guilty until early October. So what likely went on during that period of time? Well, likely what went on was a lot of negotiation with him and with his lawyer. I’m assuming that the special counsel’s office wanted to make sure that Papadopoulos was going to admit culpability for the lies he told and for the other actions he took and then also had real information to give to other folks and sometimes it takes a while to evaluate. Sometimes it takes a while to do all the debriefings you have to do. I think at the end of the paperwork it makes clear Papadopoulos has met on a number of occasions with law enforcement officials and investigators. And so it takes a bit of time to have that information be vetted and make sure that it’s an arrangement that everyone can live with. That’s probably why it took that amount of time which is not a long time actually in the scheme of things.
I would expect more charges to be coming. I would expect them to relate to the campaign. No guarantee, no promise but that’s my prediction right now.
Next point about Papadopoulos. You’ll see from the paperwork that was unsealed today and I urge you to read it–it’s pretty detailed. It says a lot of things about how he lied and concealed contacts he had with people who he thought were going to connect him to officials in the Russian government. I’m not saying that’s collusion, but it tells you a little bit about what’s going on in the mind of someone who is part of the campaign and their mental state about what they thought the propriety was of having those kinds of contacts. You know all these crimes that people talk about often require you to prove what’s in the mind of the person and if in the mind of the person was some guilty conscience and understanding that what you were doing was wrong, that’s when you lie. And so the charges against him which are no longer charges anymore–he pled guilty to them and he faces significant consequences for that reputationally and also in terms of his own liberty–that’s a big deal. And to me that means–given how I think careful, meticulous, thorough, quick and aggressive the Mueller team has shown itself to be not just by reputation but by bringing the actions that they brought today–I would expect more charges to be coming. I would expect them to relate to the campaign. No guarantee, no promise but that’s my prediction right now.
There are a lot of juicy details in the paperwork that relates to George Papadopoulos. Just to give you one example on paragraph three it states, “Through his false statement”–by the way these are no longer allegations, this is admitted conduct on the part of George Papadopoulos–“Through his false statements and omissions, defendant Papadopoulos impeded the FBI’s ongoing investigation into the existence of any links or coordination between individuals associated with the Campaign and the Russian government’s efforts to interfere with the 2016 presidential election.” And there’s another significance to that I will tell you. This is evidence that the FBI, working with special counsel Mueller, takes incredibly seriously the sanctity and integrity of ongoing investigations. What’s the charge here to which George Papadopoulos has pled guilty? It’s a charge of making false statements and impeding an investigation. That’s another word essentially for obstruction and what is one of the things that’s sort of spinning around in people’s heads and probably on the desks of various people at special counsel’s office the idea of whether or not there was other obstruction at the highest levels of the Trump campaign and the Trump presidency. And I don’t want to overstate the point but I don’t want to understate it either. And that is that the Muller team clearly takes very seriously this idea of obstruction and that’s something to pay attention to going forward.
Another question I’ve been getting all morning is you know what’s up with the timing here. Is there any grand design about the timing in releasing the information about Manafort and Gates right now and Papadopoulos? You know, I don’t think so. I think generally speaking my sense is that the Special Counsel team is trying to move as fast as they can to either put up or shut up as people want them to and as the President, I think, wants them to–and as they come to conclusions they do it. This is going to be an ongoing process. It’s going to take some time. Each case will proceed at its own pace depending on who the judge is, but people should have patience, but also be comforted by the fact that these folks are moving quickly so that we’ll get to resolution sooner rather than later.