403

 

UPDATE: Augment Chapter A to this chapter

 

MAYBE TRUMP’S LAWYER TRIED TO PAY MANAFORT’S LEGAL BILLS FOR A TOTALLY INNOCENT REASON

Perhaps John Dowd was just acting out of the goodness of his heart?

https://www.vanityfair.com/news/2018/09/trumps-lawyer-tried-to-pay-manaforts-legal-bills

Sure that’s what Michael Cohen said while he was still willing to take a bullet for the ‘President.’ After he flipped and was cooperating with Mueller he said something different.

 

There was confusion recently about what Rudy Giuliani was saying regarding a pardon for Manafort-when Rudy talks confusion follows.

“While Paul Manafort was on trial for charges of serious financial crimes, President Donald Trump asked his legal team about the prospect of pardoning his former campaign chairman, according to Rudy Giuliani, the president’s personal lawyer.”

“But Trump ultimately agreed with his legal team to delay the decision until after special counsel Robert Mueller’s investigation was over, Giuliani told The Washington Post on Thursday.

“The acknowledgment that Trump seriously explored such a move contradicts White House press secretary Sarah Huckabee Sanders’ assertion on Wednesday that a pardon for Manafort was “not something that has been up for discussion” — a statement that the president himself countered just hours later, according to Fox News.”

“He mentioned pardoning Manafort,” Ainsley Earhardt, a “Fox & Friends” anchor, said Wednesday night after speaking with the president for an interview to air the following morning.

“Giuliani’s comments and the Fox exchange reveal the degree to which Trump has considered inserting himself into Mueller’s criminal inquiry into Russian meddling in the 2016 election, which netted its first guilty verdicts this week when a jury convicted Manafort on eight counts of bank and tax fraud.”

“One of the reasons I respect Paul Manafort so much is he went through that trial,” Trump said. “You know, they make up stories. People make up stories.”

That’s why they call him Don the Con-he’s a true mafioso.  He seems to think both Al Capone and Nixon got a raw deal; I’m sure they’d both agree with him that flipping ought to be illegal.

“Giuliani, however, told the Post that in a discussion weeks earlier, the president agreed with his lawyers’ advice not to pardon anyone tied to Mueller’s investigation. “He said yes,” Giuliani said. “He agreed with us.”

But again, his hame is Rudy Giuliani and intellectual confusion is his game-he can assert A and non A-and not trouble himself about it.

“Later on Thursday, counter to what the Post reported, Giuliani told Fox News that Trump never mentioned Manafort by name in that discussion.”

Ok so what’s Giuliani really up to here? Why would he make a public statement that Trump wanted to pardon Manafort but that he, Rudy, talked him out of it. Just to make himself look good? Note, though, that he didn’t say Manafort wouldn’t be pardoned just that he’d wait till the investigation was finished to make a decision-which certainly suggests a pardon is still on the table.

So why did Rudy make this statement-and later contradict himself on Fox News? When you add it all up, it seems the real target may have been: Manafort himself. Assuring him a pardon still is on the table. And dangling a pardon is itself obstruction of justice and witness tampering. 

Basically saying Trump ‘probably won’t do a pardon’ is itself dangling a pardon.

As Natasha Bertrand points out, Trump’s whining about how unfair Manafort has been treated fits a clear pattern:

In each of three pardons President Donald Trump has issued since taking office, his justification for doing so has been virtually the same: The convictions were not “fair.”

“He was treated very unfairly by our government!” the president said in May after pardoning the far-right commentator Dinesh D’Souza, who was convicted in 2014 for campaign-finance violations. “I have heard that he has been treated very unfairly,” Trump said in April after pardoning Scooter Libby, the chief of staff to former Vice President Dick Cheney who was convicted of obstruction of justice and perjury in the Valerie Plame leak investigation. “Sheriff Joe was very unfairly treated by the Obama administration,” Trump announced a year ago following his pardon of Arizona Sheriff Joe Arpaio, who had been convicted for violating a 2011 court order to stop traffic patrols aimed at immigrants. Trump has made similar comments about the trial and conviction of his former campaign chief Paul Manafort. “It’s a witch hunt and a disgrace,” Trump said of Special Counsel Robert Mueller’s investigation, which had led to Manafort’s conviction on Tuesday. “I feel badly for Paul Manafort, I must tell you.”

Still, a pardon of Manafort would be on a different level than these previous pardons-as wrongheaded and appalling as they were on their own terms as Manafort is a major witness in the investigation of himself.

“It would be dramatically different for Trump to pardon someone directly connected to the Russia investigation, as opposed to someone like Arpaio or a friend or an associate,” said Seth Waxman, a white-collar criminal-defense attorney who served as a federal prosecutor in the U.S. Attorney’s Office for the District of Columbia. “But dangling a pardon—essentially saying, ‘A pardon will be available for you at some point down the line,’ is tantamount to obstruction of justice and witness tampering.” While Trump’s stated intent for such a pardon would likely echo his previous comments about Manafort being treated unfairly—rather than a blunt admission that he is trying to prevent Manafort from cooperating with law enforcement—Mueller “will be looking circumstantially to determine whether there was criminal intent,” Waxman said. “And the surrounding circumstances certainly suggest, if not probe, that Trump’s intent is to prevent or cause a witness not to testify.”

FN: What does the Mueller Report say about this pardon dangling? Find Mike. As for the bigger picture Manafort is still playing for a pardon it would seem.

“Adding to that circumstantial evidence, Waxman noted, is the disparity between Trump’s treatment of Manafort, who has not been cooperating with prosecutors, and of Trump’s longtime personal lawyer Michael Cohen, who has turned on the president and testified earlier this week that he had broken the law during the election at Trump’s direction. Trump tweeted earlier this week that Manafort was “brave” for withstanding prosecutors’ pressure, while accusing Cohen of making up “stories” to protect himself. “I feel very badly for Paul Manafort and his wonderful family,” Trump wrote. “‘Justice’ took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike Michael Cohen, he refused to ‘break’—make up stories in order to get a ‘deal.’ Such respect for a brave man!”

With the dangle of a pardon, Waxman said, “I don’t know how much more a person can say besides, ‘I’m doing this to stop him from testifying against me.’”

Like he did say about the Comey firing: I did it because of Russia. Mind you, for his deplorables even such confessions won’t convince them-‘he was just fooling. ‘

Lawfare has more on Trump’s potential witness tampering and obstruction of justice in this case-there are so many other examples of his obstruction of justice, like his tweets and public comments just this week regarding Jeff Sessions.

Lawfare looks at the question of wether these tweets and public comments do, in fact, constitute obstruction and witness tampering. 

“Donald Trump is swimming in dangerous waters. The day after his former campaign manager was convicted by a federal jury on eight felony counts, the president of the United States made a sequence of public statements praising Paul Manafort for refusing to cooperate with a lawful federal law enforcement investigation and for not “flipping” on the president—and, conspicuously, did not rule out a pardon.”

“Before making any more comments that a reasonable person in Paul Manafort’s shoes—or Robert Mueller’s shoes—might construe as urging Manafort not to “flip” or dangling the possibility of a pardon, there is a federal statute Trump might want to consult: 18 U.S. Code § 1512(b). That law makes it a federal crime “knowingly” to “corruptly persuade[] another person … with intent to … influence, delay, or prevent the testimony of any person in an official proceeding” or “cause or induce any person to withhold testimony . . . from an official proceeding.” It also makes it a crime to attempt to do so.”

Indeed, while it’s clear Manafort is playing for a pardon, you wonder if there were actual communications between Manafort and Trump-or with an intermediary-where Trump assured Manafort that if he stays strong-as he once exhorted Michael Flynn to do; to no avail in that case-Trump will pardon him? It’s a pretty reasonable question at this stage in the game.

FN: I initially wrote this chapter in late August, 2018-a year later it’s clear that Manafort had regular and ongoing communications with #TeamTreasonTrump-Manafort-of all people-had advised the Russia House on how to deal politically with the Russian Collusion scandal Manafort himself has proven to be such a major part of. Even during the time Manafort was-pretending-to cooperate with Mueller he was still communicating with #TreamTreasonTrump. As for pardons-Mueller looked at Trump’s dangled pardons to Manafort as an example of obstruction. It’s clear that Manafort is still playing for a pardon-as Michael Flynn is now doing.

See Chapter A for a lot more on Manafort and Russian Collusion.

“Like other obstructions of justice, the witness tampering statute requires proof beyond a reasonable doubt of specific corrupt intent on the part of the defendant. So don’t hold your breath for Mueller to leap to accuse the president of a violation. But Trump’s public signaling to Manafort is potentially important even if Mueller doesn’t treat it as a discrete obstruction of its own. The reason is twofold.”

“First, encouraging witness misbehavior, unlike firing officials or directing the conduct of federal law enforcement, is not plausibly within the president’s Article II functions. In urging a potential witness not to cooperate with a federal investigation that touches on his own conduct, the president is much more like a normal citizen before the justice system and much less distinctive, as even those most skeptical of the application of obstruction laws to the president concede. “The president can obstruct justice,” Josh Blackman makes clear, even in arguing that he “cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution.” Tampering with a witness is not a lawful authority vested in Trump by Article II.”

“Second, to the extent that Mueller appears to be considering a pattern of obstructive behavior that includes internal executive-branch management abuses and public communications about law enforcement officials, the additional element of public communications directed at a particular potential witness to encourage that person’s non-cooperation seems significant. Not only does it show that the aggregate pattern does not consist wholly of Article II-authorized behavior, it also widens the scope and breadth of the corrupt behavior at issue.”

“All of which raises the question: Can you tamper with a witness by means of public tweets and media interviews?”

The answer according to Ben Wittes and friends seems to be: there’s no reason why public tweets and media interviews can’t constitute tampering. There have been cases where someone has been found guilty of tampering based on social media posts. There are no known cases of anyone being found guilty of tampering and obstruction based on a tv interview but that’s because few have access to the medium and those who do aren’t stupid and arrogant enough to attempt to  influence a witness into not flipping on television. Trump’s belief that the best way to hide crimes is hidden in plain sight is quite mistaken-how much trouble is he-or Roger Stone-in just based on public statements-Russia, if you’re listening. 

UPDATE:

Yesterday Amy Berman Jackson pointed out to Roger Stone that much of his trouble is due to his own public boasting of having communicated with Wikileaks, ‘dined with Assange last night’, ‘Podestas’ time in the barrel’ etc.

End of UPDATE.

Such public statements-what the lawyers call prima facie evidence-make an investigator or prosecutor’s  job easy.

On the issue of ‘corrupt persuasion’ on the other hand there seems to be some debate-some courts have a more expansive definition of this than others.

“Some federal circuits, including the Second and Eleventh Circuits, have adopted an expansive interpretation of Section 1512(b). According to these circuits, the critical element is that persuasion must be done with an “improper purpose.” On this account, the criminal persuader need not adopt any particular means in inducing a second person not to speak with law enforcement; he or she might simply ask verbally with appropriately criminal intent. By this reading, one can even violate 1512(b) by persuading someone to invoke a legitimate privilege (such as a Fifth Amendment right against self-incrimination) if the persuader seeks in doing so to prevent his or her own implication.”

“By contrast, the Third and Ninth Circuits have adopted a more restrictive interpretation of Section 1512(b). On their reading, having an “improper purpose” is not enough. Persuading another person not to speak with law enforcement—even with intent to hinder an investigation or prevent one’s own incrimination—doesn’t itself make that persuasion “corrupt.” Rather, these circuits appear to demand that something about the means of the persuasion or the hindering of law enforcement must be corrupt. Thus, paying a financial reward to someone to remain silent, or encouraging someone to lie, would violate 1512(b) but simply asking someone to invoke her marital privilege would not.”

“The circuit split has clear implications for Trump’s recent statements. Under the expansive definition adopted by the Second and Eleventh Circuits, the president is almost certainly swimming in dangerous waters. When combined with other evidence, it is easy to see the president’s Cohen-Manafort “flipping” discussion as an attempt to persuade Manafort not to cooperate with prosecutors. The tricky issue, of course, is still proving the president’s intent. But the act, persuasion, is relatively straightforward.”

“By contrast, under the more restrictive approach of the Third and Ninth Circuits, the case is slightly more difficult. Manafort, of course, has a Fifth Amendment right not to speak with law enforcement. So if all Trump is doing here is simply praising him for exercising that constitutional right, under these circuits’ precedent, the president can’t be violating Section 1512(b).”

However, when you put this alongside the suggestion of a pardon…

“Given, however, that these statements have been presented alongside a suggestive ambiguity about a pardon, it is not a great leap to read an implied offer into the president’s recent statements. If so, such an offer would look a lot more like the financial rewards that even these circuits understand as criminal.”

No matter whether you get a more or less friendly court, however, it’s clear that Trump sure hasn’t helped himself with these comments. At least in some courts he would clearly be guilty of obstruction. And if he is planning on obstruction it’d be easier if he spoke about it only in private.

But in his mind he’s a political genius with exceptional political instincts.

Ok next is Manafort’s Washington DC trial on Ukraine lobbying. 

UPDATE: Manafort would go on to plead out to avoid this case but he would end up lying and dissembling to Mueller all the while he continued to speak regularly to #TeamTreasonTrump.

As for wether Trump committed obstruction, Mueller believed the DOJ precedent meant he couldn’t charge Trump but it’s pretty clear from his report that Trump did commit said obstruction-and that to the extent that Trump will be held accountable it’s up to Congress to get it done-#ImpeachMFer.

Which is why Pelosi’s talk a few months ago about ‘I don’t want him impeached I want him in prison’ was little more than a clever abdication of her own role. Though the tide may now be turning.

 

 

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October 28, 2016: a Day That Will Live in Infamy Copyright © by . All Rights Reserved.

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