Tag Archives: Manafort

The (first) Manafort sentencing

08 Friday Mar 2019

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By Frank Bowman

Yesterday, former Trump campaign manager Paul Manafort was sentenced to 47 months in prison by Judge T.S. Ellis III of the U.S. District Court in Alexandria, Virginia, for tax and bank fraud. A fair number of folks were surprised (and some disappointed) by the fact that the sentence was so far below the range of 235-293 months (roughly 19 – 24 years) recommended by the advisory Federal Sentencing Guidelines.

As someone who had a hand in shaping earlier versions of the white collar sentencing guidelines, and who has both prosecuted and defended federal white collar offenders, I have four observations about the Manafort sentence.

First, no one should be surprised that Manafort didn’t receive a sentence in the guideline range. From the advent of the Guidelines in 1987 through roughly 2003, the provisions governing high-end white collar crime underwent a steady mutation toward unyielding severity. In the beginning, they were a notable improvement over the often shockingly lenient sentences generally imposed in the previously unguided discretion of federal judges. The most common white collar sentence before the Guidelines, even for quite serious crimes, was probation. The original guidelines insisted that those who committed serious economic crimes should go to prison, albeit for relatively short periods — a few years perhaps.

However, in the years that followed, the U.S. Sentencing Commission, sometimes at the behest of Congress, sometimes responding to judges, and sometimes on its own initiative, steadily and inexorably increased the severity of white collar guideline sentences. This process climaxed from 2001 – 2003 when the Commission performed a major overhaul of the economic crime guidelines, which was followed by congressional directives issued in the wake of the Enron-era scandals that white collar sentences should be raised even higher.

The result was a set of white collar guidelines that recommends multi-decade sentences for virtually all defendants convicted of frauds involving large dollar amounts. The guideline sentencing levels for the most serious such cases are now so astronomically high that no one (including the Sentencing Commission itself) seriously contends that that they represent rational guidance for sentencing judges.

Once the Supreme Court transformed the Guidelines from a mandatory to an advisory system in the 2005 Booker case, most judges, who were already resistant to the guideline recommendations in high-loss cases, began to ignore them except in extraordinary instances. Accordingly, few knowledgeable observers expected Judge Ellis to give Manafort 20 years or anything approaching that figure.

Second, 47 months nonetheless seems low to me. In justifying his sentence, Judge Ellis alluded to the fact that other defendants convicted of the same kinds of crime – tax evasion and fraud – have often gotten sentences in the range he imposed on Manafort. He’s not wrong about that. But where he seems markedly off base is in impliedly comparing Manafort to a defendant convicted of a single (even if highly lucrative) scheme, and then adding the gloss that Manafort has lived “an otherwise blameless life.”

As the world knows, Manafort’s life has been so far from blameless as to leave some doubt that the judge was referring to the man in front of him. Manafort is a conscienceless grifter who grew rich by burnishing the public images of the most rancid assortment of thugs, demagogues, and dictators on the planet. His career has been one long outrage against honesty, fair dealing, and commitment to democratic values.

Those are factors a judge is entitled to consider when imposing a sentence. That Judge Ellis either didn’t see the obvious or chose to ignore it is cause for dismay. But the eccentricities of judges in their sentencing role is, in the end, simply part of the price we pay for the benefits of a life-tenured federal judiciary.

Third, it is at least possible that Judge Ellis was being strategic. He knew that Manafort is facing a second sentencing before Judge Amy Berman Jackson next week. He may have thought Manafort deserved more than 47 months, but did not want him to receive too much more than the maximum of ten years he faces in the second case. By keeping his own sentence low, Ellis gave Judge Jackson room to impose additional punishment, but also effectively capped the aggregate of the two sentences at just shy of fourteen years (47 months plus a possible ten years consecutive).

Finally, although it seems counterintuitive, by holding Manafort’s sentence down, Judge Ellis may have increased the odds that Manafort will have to serve it. A huge sentence of the order of magnitude suggested by the guidelines, particularly if supplemented with consecutive time from Judge Jackson, would allow President Trump to invoke the near-universal criticisms of the over-harshness of the white collar guidelines as a justification for pardoning Manafort. As matters stand, that would be a hard sell.

Let’s see what Judge Jackson has to say…

Losing a Two-Front War

16 Sunday Sep 2018

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This week has proven to be a difficult one for President Trump. As both civil and criminal investigations draw near and his tight spot becomes tighter, one can only begin to imagine his discomfort.

The world of Special Counsel Robert Mueller’s investigation has gotten a little brighter with the cooperation of Paul Manafort. Trump’s former Campaign chairman finally struck a plea deal last Friday and pleaded guilty to conspiracy to defraud the United States and obstruction of justice. Though Trump’s press secretary, Sarah Sanders, argues that the charges against Manafort have nothing to do with the President and could not incriminate him, Manafort apparently possesses information valuable enough for Mueller to agree to waive 5 of his 7 charges and argue leniency in his sentencing. Especially valuable is Manafort’s participation in the Russian lawyer meeting and any insight he may be able to give as to what happened there. Some theorize that Manafort’s cooperation promises the end of Mueller’s investigation.

On top of Mueller’s progress, Trump faces discovery requests pursuant to a civil suit in the U.S. District Court of Maryland. The suit alleges that Trump violated the Domestic and Foreign Emoluments Clauses of the United States Constitution through operation of the Trump International Hotel near the White House. Pursuant to those allegations, the plaintiffs, D.C. Attorney General Karl Racine and Maryland Attorney General Peter Frosh, are seeking communications between Trump and foreign and U.S. state government officials related to use of the hotel, records of the hotel’s business with foreign officials, records of cash transferred from the trust which collects the hotel’s funds to Trump, and documents from the General Services Administration and the U.S. Treasury Department which lease the hotel building to Trump.

The likely result of these two investigations is that allegations of impeachable offenses committed by Trump, conspiracy to defraud the American people, obstruction of justice, and violation of the emoluments clauses, will soon either be substantiated or refutable. And with midterm elections looming, this information could not have come at a better time. Soon there will be a Congress that can transform all of this discovery into articles of impeachment.

GettyImages-578331186-trump-manafort-2016-1120.jpgBill Clark, CQ Roll Call, Getty Images

The Consequences of Pardoning Manafort

18 Saturday Aug 2018

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Today marked the second day of jury deliberations for the trial of Paul Manafort, the former Trump campaign manager. Manafort is being tried for 18 criminal charges for bank and tax fraud related to the time he spent working for a Ukrainian political party. Manafort refused to cooperate with the Mueller investigation, and it has been theorized that this decision was based on a belief that President Trump would pardon him if he were convicted.

Whether Trump will pardon Manafort is unknown; however he has used his pardon power politically in the past, and his former lawyer, John Down, apparently broached the subject of a possible pardon with Manafort’s lawyers. When asked whether he would consider pardoning Manafort, the President refused to say, but did comment that  “the whole . . .  trial is very sad.”

In an article written for the American Constitutional Society, entitled Why President Trump Can’t Pardon His Way Out of the Special Counsel and Cohen Investigations, Noah Bookbinder, Norman Eisen, Caroline Fredrickson, and Conor Shaw write that “a prospective pardon of a witness in the Russia investigation might . . . constitute an obstruction of a criminal investigation . . . .” They are referring to section 1510 of title 18 of the the United States Code, which makes the “[willful endeavoring], by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator” a federal crime. If President Trump did, directly or indirectly, promise Manafort a pardon in exchange for his refusal to cooperate with Mueller, then he may not only be subject to criminal indictment but yet another article of impeachment as well.

5b3f9a219e2a102f008b47ed-750-375.jpgDrew Angerer/Getty Images

 

Manafort in the Ukraine

10 Sunday Dec 2017

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Special Counsel Mueller is protesting against Paul Manafort’s, Trump’s former campaign manager’s, petition to have his house arrest lifted pending his trial. Manafort was indicted for assiting in the Russian interference of the 2016 Presidential election — his charges include money laundering and failing to register as a foreign agent. Judge Amy Berman Jackson had ordered Manafort not to discuss his case in the media. Mueller, however, alleges that Manafort violated said gag-order by collaborating on a piece about himself and his efforts in the Ukraine for a Ukranian newspaper.  His alleged coauthor is Konstantin Kilimnik, a Russian with, Muller claims, ties to Russian intelligence.

The article at issue addressed Manafort’s efforts in the Ukraine, describing them as “pro-western.” However, an account of Manafort’s efforts in the Ukraine seem to contradict that narrative (see this article decribing Manafort’s activities in the Ukraine). At best, Manafort’s work in the Ukraine could be described as merely political, and at worst it may be seen as pro-Russia.

15MANAFORT1-master675.jpgThe New York Times/Eric Thayer

 

The Russian collusion investigation: Bumbling grifters & the risks of keeping it all in the family

12 Sunday Nov 2017

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Earlier this week, I had the pleasure of doing an interview with Canada’s CTV network on developments in, and speculations about, the progress of the Mueller investigation.  The anchor wanted to talk about the testimony of  former Trump campaign foreign policy advisor, Carter Page, to the House Select Committee on Intelligence, Attorney General Session’s upcoming appearance before the House Judiciary Committee, and the rumor that an indictment of former Trump National Security Advisor Michael Flynn (and possibly his son) will soon be forthcoming.

I can’t say that I had anything particularly novel to tell Canada’s TV audience about any of these subjects, but reflecting on the interview has provoked a couple of observations.

First, as I have had occasion to observe before, passionate opponents of Mr. Trump who confidently expect (or even fervently hope) that the Mueller investigation of Russia-Trump campaign collusion in the recent election will produce some smoking gun that will lead naturally to articles of impeachment should moderate their expectations.  So far, at least, the picture is not one of sophisticated, nefarious, high-level Trump operatives working hand-in-glove with agents of the Russian government, but of something altogether murkier and more ambiguous.

To be sure, there exists nearly irrefutable evidence that the Kremlin was working hard through every means at its disposal to harm the Clinton campaign and help Mr. Trump. Mr. Putin’s repeated denials that Russia was meddling and Mr. Trump’s on-again–off-again acceptance of those denials may convince his endlessly credulous base, but outside those blinkered precincts it merely prolongs the bizarre spectacle of an American president siding with the dictator of a hostile foreign power against the conclusions of his own intelligence agencies.

(As an aside, when I began drafting this post, Mr. Trump had just said that he accepted as sincere Putin’s denial of meddling.  Mere hours later, Trump straddled the question, saying that he accepts both the findings of U.S. intelligence and Putin’s sincerity.  This waffling is either: (a) Yet another example of Mr. Trump’s persistent tendency to say whatever he thinks will please the audience immediately in front of him, with no thought for either truth or how today’s effort to ingratiate will affect his own or the country’s interests tomorrow; (b) Yet another example of Mr. Trump’s seeming inability to engage in rudimentary critical thinking — the idea that the Russian government could engage in a wide-ranging effort to influence the American presidential election without the knowledge or approval of Vladimir Putin is laughable, and thus it is impossible for U.S. intelligence to be right and for Putin to be sincere; or (c) Just another manifestation of Mr. Trump’s knee-jerk rejection of any fact, however firmly established, that might suggest his election victory was due to anything other than his own personal merits. My best guess is that all three factors were at work.)

But it is not a crime or an impeachable offense merely to be the unwitting beneficiary of foreign efforts to damage one’s political adversaries.  What must be shown to prove a crime is that affiliates of the Trump campaign consciously aided or sought to aid the Russians’ subversion and violated some statute in the process.  What must be shown for any of this to amount to an impeachable offense is that Mr. Trump himself approved, was aware of and failed to stop, or later tried to cover up culpable conduct by his subordinates.

It is too early to assess the ultimate question about whether culpable collusion occurred.  But the emerging (though far from complete) evidence suggests at least three points about the Trump campaign’s Russian contacts:

  • Repeated claims by Mr. Trump and his subordinates that there were no contacts between persons associated with the Trump campaign and Russian officials or agents were simply untrue.  As the Chicago Tribune summarizes, at least nine people in the Trump orbit had Russian contacts during the campaign or transition.
  • At least some of those contacts involved persons high up in the campaign hierarchy or personally close to Mr. Trump, people like Donald Trump, Jr., Jared Kushner, Paul Manafort, and Jeff Sessions.  Others, like George Papadopoulos and Carter Page, had impressive-sounding titles like “foreign policy adviser,” but  were in reality on the fringes of what was always a barely coherent campaign organization. Nonetheless, it is now clear that campaign higher-ups, like Senator Sessions, Stephen Miller, Hope Hicks, J.D. Gordon, campaign manager Cory Lewandowski, and national campaign co-chair Sam Clovis, knew about the Page and/or Papadopolous contacts.
  • Whether contacts between Trump surrogates and Russian actors ever produced concrete results, such as the direct transfer to the Trump campaign of negative information about Secretary Clinton or her team, remains unclear … and frankly seems doubtful.  What is clear is that multiple members of the Trump entourage were willing and eager to receive that kind of material — even when it was plain that the source would have to have been Russian intelligence services, and that the means employed to obtain the material would likely have involved violations of American law. The first proof of their eagerness was the now-famous Donald Trump Jr. – Kushner – Manafort meeting with the Russian lawyer.  Now Mr. Papodopoulos admits to having received a purported Russian offer of “dirt” on Secretary Clinton in the form of emails, and to have passed the offer along to Trump campaign officials.
  • If, in the end, Trumpists and Russian emissaries never quite did a deal that produced active cooperation or transmission of opposition research “deliverables,” efforts to cover up all the active flirtation could nonetheless amount to criminal obstruction of justice and even impeachable conduct.  That’s the thing to watch for in coming months.

Second, the overriding impression, reinforced by each new revelation, is that both the inner circle of the Trump campaign and the outer rings of staff, consultants, and advisers consisted primarily of pathetically ill-informed amateurs like the Trump children and in-laws, eccentrics like Carter Page, desperate wanna-be‘s like George Papodopoulos, or outright scoundrels like Paul Manafort.  Even those with long government resumes and conventional credentials, like Trump’s short-tenured National Security Adviser Michael Flynn and Senator Jeff Sessions, gravitated to Trump because, in Flynn’s case, he had been expelled from the circles of power for persistent bad judgment, and in Sessions’ case, he was a fringe player in the Senate, with views on many subjects too extreme even for for a caucus edging steadily to the right, and no path to any meaningful leadership role.

Moreover, the one character trait common to virtually all of this ill-assorted crew is greedy opportunism. The Trump family, from the paterfamilias on down, has profited by skating on or over the edge of legality for decades and has been monetizing its connection to the presidency ever since the election.  Manafort’s long career as apologist for thugs and dictators should have disqualified him from a role in any American presidential campaign, and predictably has both embroiled Trump in controversy and produced an indictment founded in part on money laundering and tax evasion. Page reportedly combined his Russian overtures for Trump with efforts to secure private deals for himself.  Michael Flynn is under investigation for an array of dodgy, but potentially lucrative, deals, as well as illegal failures to report work on behalf of authoritarian regimes like that of ascendant Turkish dictator Recip Erdogan.

The mix of incompetence, bad judgment, blithe disregard of normal legal and ethical boundaries, and personal greed in the Trump campaign is both a gift and an impediment to any effort to impeach Mr. Trump.

On the one hand, it is increasingly obvious that people high and low in the Trump campaign were trying quite hard to collude with a hostile foreign power to win a presidential election.  On the other hand, it may prove that the Russians simply didn’t trust these escapees from the Island of Misfit Toys enough to enter into any active collaboration, preferring to feed toxic misinformation to the American electorate indirectly through Wikileaks and directly through social media.  Now that Mr. Trump has shed virtually all of the primary actors in the Russian contacts — with the notable exceptions of his family members — he can disavow former staffers’ conduct as the inconsequential bumbling of fringe nobodies.

BUT — having foolishly chosen to ignore settled norms against nepotism in the White House, Mr. Trump is probably stuck with whatever the kids have done or may yet do. Even an ordinary father would shrink from throwing his children overboard and into the clutches of waiting prosecutors, but in Mr. Trump’s case, ordinary considerations of paternal affection are infinitely complicated by the fact that the Trump campaign was, and the Trump Organization remains, a family business … and the kids, notably including son-in-law Jared Kushner, are privy to their secrets.  Perhaps Ivanka or Don Jr. might be willing to take a fall for dear old dad.  Were I Mr. Trump, I would not bet that, at the last extremity, young Mr. Kushner would do the same.

Thus, Mr. Trump will never be able to make a clean break from the Russian meddling investigation. Some of its central figures will remain close to him.  He will continue defending them.  And as in Watergate, it may prove that the cover-up, rather than the original wrong, will be his undoing.

Finally, it would be easy to dismiss the near-universal obsession of those around the Trumps with self-enrichment through politics as a side issue.  For two reasons, it’s not.

First, as Mr. Manafort recently discovered, the United States has a web of laws that regulate, and often criminalize, aspects of the “deals” he and his ilk are so eager to make.  Those laws are a tool box for Robert Mueller’s prosecutors, and the questionable financial motives and maneuvers of those involved in contacts with Russian representatives will provide legitimate grounds for inquiring deeply into financial matters the Trumps would surely prefer remain hidden.

Second, to the extent Mr. Mueller’s investigation or other sources reveal that Mr. Trump and family have used the presidency for personal profit, such disclosures implicate at least two grounds for impeachment.  The most obvious of these is violation of the emoluments clauses.  But I would go a bit further.  I do not believe that a technical violation of, for example, the foreign emoluments clause of Article I, Section 9, is required to make out an impeachable offense if it could be shown that, as James Madison put it, the president “pervert[s] his administration into a scheme of peculation.”

I will expand on this latter point in later posts.  Stay tuned.

Frank Bowman

 

 

 

Brief reflections about the Papadopoulos guilty plea

31 Tuesday Oct 2017

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In addition to the indictment of Paul Manafort and his associate Rick Gates, yesterday brought news of the guilty plea of George Papadopoulos, a former foreign policy advisor to the Trump campaign.  Some commentators have suggested that the Papadopoulos plea presents a bigger potential risk to Mr. Trump than the Manafort indictment.  I’m not sure that will ultimately prove to be true, partly because I suspect the real risk to Mr. Trump and his coterie of retainers and hangers-on lies in inquiries Mr. Mueller is, or may yet be, making into their finances.

Nonetheless, the Papadopoulos plea does suggest several points:

First, the Statement of the Offense accompanying the plea is chock full of assertions which, if true, give the lie (yet again) to the initial claims of Mr. Trump and associates that there were no contacts between the campaign and Russian interests.  It is undoubtedly correct that Papadopoulos himself was an insignificant figure in the Trump campaign universe and a complete nobody in the real world of foreign affaits.  (Indeed, the fact that the Trump campaign brought on such an utter neophyte as one of five foreign policy advisors is a shocking testament to the unwillingness of anyone of substance to associate with the campaign.)

BUT, it appears Papadopoulos was in contact with people who had genuine, if slightly attenuated, Russian government connections, people who were expressing interest not only in making general connections with Trump and his campaign, but were offering “dirt” on Hillary Clinton.  And the dangled dirt allegedly included emails which any reasonable person would have to have inferred had been obtained clandestinely and probably illegally.  Critically, Papadopoulos apparently passed all this along to very significant people in the Trump campaign – people such as Sam Clovis, the campaign national co-chair, and Corey Lewandowski, the one-time campaign manager.  If the Statement of Offense is accurate, these higher-ups encouraged Papadopoulos’s efforts, even those that obviously involved very questionable dealings with a traditionally hostile foreign power.

Second, even if everything in the Statement of the Offense is true, none of the Trump campaign’s senior officials may have committed any crime.  It is not a crime for senior members of a presidential campaign to talk with representatives of foreign governments. Indeed, if the point of the talks is to introduce the candidate and those around him to significant foreign actors and to learn about international issues relevant to the campaign and to American foreign policy, they can be laudable.  Even seeking opposition research that would appear to emanate from Russian intelligence services might not itself be criminal, even if (at least in a rational world) it would be politically poisonous if the Russian intelligence connection were revealed.  If it should ever be shown that such material was delivered, and used, more difficult legal questions would arise.  But nothing so far revealed suggests that the Papadopoulos overtures produced anything concrete.

Third, nonetheless, Mr. Papadopoulos’s fate illustrates the risk facing all the current and former Trump insiders.  They are under immense pressure from Mr. Trump and others around him to deny or minimize the extent of Russian contacts. The pressure may stem purely from Mr. Trump’s aversion to political embarrassment, rather than any fear of overt criminal liability.  But with the Papadopoulos case, Mueller’s team has served notice that it will not be lied to.  They want the whole truth, with no fudging, or felony charges will be forthcoming.

If those who haven’t yet talked to Mueller are getting, and taking to heart, competent legal advice, they will tell absolutely everything they know.  If they don’t, we can confidently expect more indictments akin to that of Mr. Papadopoulos.  The result should be that Mueller will get to the bottom of the Russian connection story.  If he does, I wouldn’t necessarily bet that the bottom line will be exposure of treasonous collusion.  The more likely outcome will be a continued slow exposure, bit by bit, of farcical bungling by unprincipled foreign policy naifs who would have committed crimes if they could, but were baulked by either their own incompetence or Russian unwillingness to deal directly with such boobs.

That said, I would not be surprised to see a significant number of Trump World inhabitants unwilling to come clean, even in the face of the Papadopoulos example. In which case more of them will go down.  And, as has so often proven the case over the years, it won’t be the underlying criminality of their flirtations with Moscow that gets them, but the cover-up.

The Manafort Indictment & Impeachment

30 Monday Oct 2017

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The internet is buzzing with the news that former Trump campaign manager, Paul Manafort, and his associate, Rick Gates, have been indicted for conspiracy to defraud the United States, money laundering, and a variety of other federal crimes. Of perhaps equal significance, former Trump campaign foreign policy advisor, George Papadopoulos, pleaded guilty to making false statements to the FBI in denying contacts with Russian agents.

It is natural to wonder what effect these developments might have on a potential impeachment case against Mr. Trump.  Nonetheless, perhaps the main point to keep firmly in mind is that it is far too early even to make informed speculations on that ultimate point.  For the moment, I’d offer only these tentative observations:

First, as a former federal fraud prosecutor, I am impressed with the speed at which the Mueller investigation is moving.  The Manafort / Gates indictment describes a very complex set of international and domestic transactions.  Cases like this commonly take years to put together.  Mueller’s team sewed up this first indictment in five months.

Second, I’m also impressed with the apparent solidity of the case against Manafort and Gates.  Defense counsel will have their say, but on the face of it, this is a stout case.  It is very hard to see how Manafort and Gates beat this.

Third, the charges are very serious.  Manafort in particular is facing serious prison time.  It is, of course, a fool’s game to predict what sentence a white collar defendant will ultimately receive, but the Federal Sentencing Guidelines provide at least a yardstick for the kind of sentence a judge would consider upon conviction.

A reasonable guesstimate of the guidelines calculation for Manafort would put him at over ten years in prison.  A glance at the indictment suggests that the money laundering guideline would probably drive the calculation.  That guideline, 2S1.1, is notoriously tricky, but one could reasonably, if not certainly, assume a base offense level of 8  + 20 levels from 2B1.1 for $18 million laundered.  If you add 2 for 3C1.1 obstruction (false statements) and 4 for aggravating role under 3B1.1, that yields an offense level of 34.  Which equates to a guideline range of 151-188 months, or 12 ½ to 15 ½ years.  There are a variety of other factors that could push this number up or down considerably, and judges are not obliged to sentence within the guideline range, but as I say, Mr. Manafort and his attorneys will certainly have to take the guidelines as a serious benchmark of the kind of sentence an ill-disposed judge could impose.

Fourth, many commentators have observed that the point of indicting Manafort and Gates first is to pressure them into cooperation against others, potentially including Mr. Trump. Without presuming to read the minds of Mr. Mueller and his colleagues, this seems a reasonable hypothesis.  That said, it is interesting that Manafort and Gates let themselves be indicted rather than working out a pre-indictment plea agreement as Mr. Papadopoulos apparently did.  This is not to say that Manafort and Gates will never “flip,” but it does mean that they are resisting for now, and could persist in refusing cooperation no matter what happens.  At a minimum, Mueller may have to go to trial and convict one or the other or both before they agree to cooperate.  Which could take a long time.

Fifth, the subject matter of the Manafort / Gates indictment is not collusion of the Trump campaign with Russia. Rather, it is Mr. Manafort’s sleazy, but very lucrative, relationship with corrupt Ukranian politicians. Of course, Mr. Trump and his supporters have already been quick to note the absence of a “collusion” angle in this indictment.  But what I find interesting, and very suggestive, is that the indictment makes a point of describing the Ukranian group paying Manafort as pro-Russian.  Legally, that point is irrelevant.  Politically, it has two obvious points: It helps rebut any claim that, in indicting Manafort, Mr. Mueller’s team is going beyond the scope of its charge, which is to investigate Russian efforts to influence the American election and any collusion by the Trump campaign with those efforts.  If challenged, Mueller can point out that Manafort, Trump’s campaign manager, had a long history of dodgy, and in some respects criminal, connections with a pro-Russian party in a former Soviet republic, a point plainly relevant to the larger investigation.

My second, and far more speculative, reaction to the indictment’s pointed insistence on the Russian connection is that it is a direct signal to those around Mr. Trump who have Russian connections, but have not yet faced indictment — don’t get comfortable, we’re coming for you.

Finally, the other message in this indictment that I suspect is sending chills down the spines of Mr. Trump and many of his associates and family members stems from the nature of the charges themselves.  This indictment demonstrates both the incredibly broad reach of the federal criminal law in the area of financial crime and the professional competence of Mueller’s team.  Mr. Trump, his family, and retainers may not have engaged in the precise forms of financial shenanigans revealed in this indictment, but given Mr. Trump’s long history of skating on or over the edge of legality, it would be surprising indeed if at least some had not infringed on federal criminal law in analogous ways.

With the Manafort indictment, Mueller and his team have sent a blunt warning.  If the Trumps have financial skeletons, they will be found.

Frank Bowman

The Collusion Case Grows Stronger

30 Monday Oct 2017

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This article, from the New York Times, reports that evidence of collaboration between the Russian lawyer, Veselnitskaya, and high ranking Russian officials has surfaced. Ms. Veselnitskaya met with Donald Trump Jr., Jared Kushner, and Paul Manafort last year at the Trump Tower, and the meeting was the subject of some scandal (more can be read about that here). However, Veselnitskaya has claimed to be an independent actor, which helped to undercut talks of collusion. That is until now.

Evidence shows Ms. Veselnitskaya may have been collaborating with Russian prosecutor general, Yuri Chaika. The talking points which Ms. Veselnitskaya brought to the meeting incorporate language from a memo Mr. Chaika had given to an American Congressman two months earlier, and there is evidence that Veselnitskaya had discussed her meeting with Chaika in the months proceeding it. Additionally, Veselnitskaya has a history of collaboration with Chaika.

If it can be established that Ms. Veselnitskaya was, in fact, an agent for the Russian government, then the allegations of Russian collusion will be strengthened. Though she did not meet with the President himself, she met with his family and advisors, and so the talk could be characterized as a meeting of agents.

veselnitskaya.jpgMartyanov — Getty Images

The Russian lawyer meeting and election law crimes: The experts weigh in

13 Thursday Jul 2017

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By Frank Bowman

In yesterday’s post, I expressed grave doubt about the widely discussed suggestion that the June 16, 2016 meeting between Donald Trump, Jr., Jared Kushner, and Paul Manafort and a Russian lawyer constituted a criminal violation of federal election law. To check myself, I turned to the experts on CrimProf, a listserve that includes a high percentage of the country’s criminal law professors.  I put my analysis before them and asked for feedback.

A lively online discussion ensued, from which I learned a great deal.  I promised the group that I’d try to summarize the main points they raised and share them here, along with my own conclusions.  So here goes:

The law in question – it really is criminal

Title 52, United States Code, Section 30121, makes it unlawful for a “foreign national” to make “a contribution or donation of money or other thing of value … in connection with a Federal, State, or local election.” The statute also makes it unlawful for an American to “solicit, accept, or receive” such a contribution from a foreign national.

A few folks in the national media have raised the question of whether a violation of this statute could be criminal, or whether violations were solely within the province of the Federal Election Commission.  On CrimProf, Professor Peter Henning pointed out that the operative criminal statute is 52 USC Sec. 30109(d), which provides:

(1)(A) Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure–

(i) aggregating $25,000 or more during a calendar year shall be fined under Title 18, or imprisoned for not more than 5 years, or both; or

(ii) aggregating $2,000 or more (but less than $25,000) during a calendar year shall be fined under such title, or imprisoned for not more than 1 year, or both.

In other words, an American who “knowingly and willfully” violates the Section 30121 prohibition on contributions from foreign nationals commits a crime.  It was suggested that since Section 30109(d)(1)(A) refers to “any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure” and doesn’t specifically mention “soliciting” a foreign contribution, that it wouldn’t apply to Trump Jr. and friends if, as they claim, they didn’t actually get anything from the Russian lawyer.  That’s a possible reading, but I think the better interpretation is that the quoted language is simply a cross-reference to those sections of federal election law which generally relate to contributions, donations, or expenditures.

“Willfully”

Professor Miriam Baer emphasized that the word “willfully” in the criminal statute is sometimes interpreted by federal courts to require that the defendant was consciously aware that he was committing a crime.  Professor Henning noted that sometimes “willfully” requires only a general knowledge of wrongfulness, citing United States v. Danielczyk.  Particularly, if “willfully” in Section 30109 has the strong meaning, then Trump Jr. and friends could raise two defenses.

First, Trump Jr. and Jared Kushner could argue that, as total political neophytes, they had no knowledge of federal election law and thus couldn’t have acted “willfully.”  Of course, Paul Manafort, a career political operative most of whose business in recent years has been with foreigners, could not plausibly make the same claim.  And the three of them attended the meeting together and presumably discussed its purpose in advance.

Second, as will become clearer below, it would be a real stretch to apply Section 30121 to the Russian lawyer meeting (at least given what we now know).  The best criminal law minds in the country disagree on the point.  The more doubtful it is that going to meet the Russian lawyer was a violation of election law, the harder it is to prove that Trump Jr. and friends acted “willfully” in the sense of being consciously aware that they were doing something illegal.

The big problem – “thing of value”

The doubt I expressed yesterday about the applicability of  Section 30121 to the Russian lawyer meeting was based on the phrase “thing of value.” The Russian lawyer was a foreign national, so it would be illegal for an American to solicit “a contribution or donation of money or any other thing of value” in connection with a federal election. The question is whether what Trump Jr. and company thought they were going to get –derogatory information about Hillary Clinton — would constitute a “thing of value” under this statute.

I argued two things:

First, although in many federal criminal statutes “thing of value” includes intangibles, this election statute seems best understood to refer to things that have readily quantifiable economic value.  Negative information about one’s political opponent seemed too intangible to fit that template.

Second, and more importantly, I argued that applying the law this way would be absurd and probably violative of the First Amendment. If Trump Jr. violated Section 30121 just by asking the Russian lawyer if she knew anything bad about Hillary Clinton, then the same would be true of any candidate for federal office or representative thereof who ever asked a non-American for unflattering information about an opponent.  And that can’t be right.

I heard several responses to these arguments:

The contention that information counts because it has economic value

Some very reputable scholars, including election law experts, have pointed out that federal courts have construed “thing of value” as used in campaign finance statutes to refer to intangibles, including various forms of information.  However, I am unconvinced that any of the cases cited treat pure information, in the sense of negative facts about an opponent, as a thing of value.  All of them appear to deal with services of one kind or another that have an economic value on the open market, such as contributor lists, polling services, campaign literature, and the like.

Nonetheless, on CrimProf, Professor Richard McAdams perceptively observed that, even though it seems absurd to suggest that asking a for information useful to a campaign could be soliciting a thing of value under election law:

There is an absurdity on the other side. If information cannot be a thing of value because it is intangible, then polling firms or research firms could provide mass quantities of information with a serious market value and it wouldn’t matter if the supplier were foreign (or had already maxed out in dollar contributions). So there needs to be some murky distinction between soliciting information by asking a simple question the isolated answer to which requires no great research and therefore has no market value, and asking for a volume of information that would fetch a high price from a research firm.

Professor McAdams went on to suggest that, because the information Trump Jr. expected to get from the Russian lawyer was said to emanate from the Russian government, it might be akin to the product of a commercial research firm and thus constitute a thing of value under the statute.  A lively discussion ensued amongst the criminal law cognoscenti.

Having considered all the arguments carefully, I concluded:

  1. Information services would probably fall under the statute.  If a campaign were to approach a foreign-owned polling firm or data analysis company and say, “We’d like you to perform polling or data analysis and give us the results, free of charge,” that would surely count as soliciting something of value.  The same might also be true if the foreign company had already performed the work and was offering the results for sale, or was keeping it secret as proprietary information.
  2. But the dividing line can’t be that the information sought happens to be available from a foreign governmental entity that has already expended economically valuable resources to obtain it.  Consider the example in my blog post of yesterday of a campaign seeking information about the rumor that an opponent was a regular visitor to juvenile sex traffickers in Thailand.  Assume that the best source of information about this possibility was the Thai national police.  They would certainly have employed a large, costly investigative apparatus to secure the information in question.  Would we really say that it’s a crime to ask the Thai government about this?

 

Professor McAdams, while conceding the force of this point, remained troubled by the fact that, in this case, Trump Jr. and company were consciously seeking the aid of a foreign government, one traditionally hostile to the United States, that they were told was trying to influence the outcome of the American election.  To put it as mildly as possible, I share that concern.  Indeed, it is this precisely this aspect of the meeting that ought to appall any patriotic American and that makes it so genuinely earth-shaking.

That said, merely because this meeting was self-evidently wrong does not make it a violation of 52 U.S.C. Sections 30121 and 30109(d).  I cannot see how one could sensibly interpret these statutes to prohibit the Trump Jr. – Russian lawyer meeting while permitting the nearly infinite range of informational inquiries by American campaigns to foreign persons and governments that plainly ought to be permissible if the American electorate is to have all the information it ought to have when making democratic choices.

As but one example among many of the complications such a distinction would involve, consider the suggestion of several CrimProf colleagues that it matters that Russia is traditionally hostile to the interests of the United States and was consciously trying to influence the election.  How, for purposes of Section 30121, would one distinguish between hostile and friendly foreign powers? Is China, our largest trading partner, but a geopolitical rival, hostile?  If Russia is hostile now, was it hostile during the Yeltsin era and before Putin?  Does the foreign power have to be both hostile and trying to influence the election?  Or is a desire to influence the election sufficient? A good many of our NATO allies were horrified at the prospect of Mr. Trump as president.  Suppose that an agency or official of one of them possessed damaging, but true, information on Mr. Trump.  Would we seriously propose to make it criminal for a supporter of Secretary Clinton to ask that agency or official for the information?

The First Amendment arguments

I am not a First Amendment expert.  However, in yesterday’s post, I surmised that applying Section 30121 to the Russian lawyer would violate the First Amendment.  After listening to the arguments of those better informed on this point, I am convinced that my original concern is valid.  Rather than trying to summarize the arguments here, I commend my readers to the published debate between Professor Richard Hasen who ridicules the First Amendment in argument in Slate, and Professor Eugene Volokh, who articulates the First Amendment argument for the Washington Post.  Suffice it to say that I think Professor Volokh has by far the better of this argument.

Bottom Line

I remain unconvinced that, based on the known facts, the election law statutes cover what Trump Jr. and company are said to have done.  I am convinced that even if the language of the statutes could be stretched that far, such an interpretation would run afoul of the First Amendment.  Finally, I am absolutely convinced that – absent significant new information – no sensible prosecutor, and certainly no sensible prosecutor with a honest claim to political neutrality, would seek an indictment under the referenced election law statutes.

This by no means changes my view that the Russian lawyer meeting is a huge deal.  It may be relevant, even central, to whether other criminal laws may have been violated. More importantly, it confirms that the Russian collusion investigation is not a wishful figment of the liberal imagination, but is instead a serious business and a serious threat to Mr. Trump’s presidency.

I would nonetheless close on this cautionary note.  As conservative Andrew McCarthy eloquently contends in National Review,  the critical point is not whether the Russian lawyer meeting in particular or the Trump campaign’s contacts with Russia generally were crime, but whether they constitute impeachable matter.  I yield to no one in my disapproval of Mr. Trump, but McCarthy is right that anti-Trump lawyers and scholars err when they strain to shoehorn every Trumpian malfeasance into a criminal statute. At its most extreme, this behavior is both unseemly and hypocritical.  We must be careful to apply the same standards of professional judgement to Mr. Trump and his subordinates that we would apply to political figures we like better.  Otherwise, we risk depleting the credibility of the professoriate, which will be sorely needed in the event criminal charges against Trump administration officials or impeachment of Mr. Trump himself ever become live possibilities.