Can You Tell Witness Tampering When You See It?

On Monday, a party identifying itself as the "Government" (aka the Mueller special prosecution team, led in this case by one Andrew Weissman) filed a motion in the D.C. District Court seeking to have the pre-trial release of Paul Manafort revoked, and thus to have Manafort thrown in the pokey pending his trial.  Up until now Manafort has been in something called the "Pretrial Services Agency's high-intensity supervision program," sometimes euphemistically referred to as "house arrest."  Here are links to the Motion and to a supporting Declaration by an FBI agent named Brock Domin.  However, I suspect that those links may not work for you unless you subscribe to the federal "PACER" system for online access.  

So what are the grounds for seeking to lock up Manafort at this time?  According to the Motion, Manafort has been engaged in what they call "attempting to tamper with potential witnesses while on pretrial release," which they say is a violation of 18 U.S.C. Section 1512(b)(1).  And what does the alleged "attempted witness tampering" consist of?  Get ready for this:  It seems that Manafort attempted to (and in one case did) get in contact with a few of the dozens of prospective witnesses in his case, and to talk to them about their prospective testimony.  Imagine that!  Did you know that that was even a crime?

Here is the text of Section 1512(b)(1):

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to — (1) influence, delay, or prevent the testimony of any person in an official proceeding; . . . shall be fined under this title or imprisoned not more than 20 years, or both.

And now, what is it alleged that Manafort has done?  It seems that the government has looked over and read or listened in on every single phone call, email or text that Manafort has had during his pretrial detention, and here is what they have come up with:

  • "Manafort sent Person D1 a news article that reported on allegations in the recent Superseding Indictment that members of the Hapsburg group performed lobbying and public-relations work in the United States, not just in Europe."  Yes, he sent around a public news article, reporting on the public allegations in the new indictment that had just been handed down.  Nefarious!
  • "Manafort then messaged Person D1 that he had 'made clear that' the Hapsburg group 'worked in Europe.'"  
  • Then, Manafort allegedly had a "Person A" contact a D2 on his behalf, leading to this series of texts from Person A to D2 on February, 18, 2018:  "- 01:49: [Person D2], hi! How are you? Hope you are doing fine. ;));  -  01:51: My friend P is trying to reach [Person D1] to brief him on what's going on.;  -  01:51: If you have a chance to mention this to [Person D1] - would be great.;  -  01:53: Basically P wants to give him a quick summary that he says to everybody (which is true) that our friends never lobbied in the US, and the purpose of the program was EU."

The significance of the EU versus US thing here is that if Manafort and his colleagues were lobbying in the EU, that is not a subject of US law; but if they were lobbying in the US, they were supposed to register under a never-enforced lobbyist registration law, that is violated by essentially everyone in the District of Columbia, but which Mueller is now prosecuting Manafort for violating.

OK, can you detect in there the "intimidation," "threats," or "corrupt persuasion" that would make this communication a potential violation of Section 1512?  For example, did Manafort offer money or any other inducements for false testimony?  Did he threaten violence or any other kind of harm?  Nothing like that that I can find in the "Government"'s submissions here.  Yes, Manafort sought to convey to "D1" Manafort's own version of the facts at issue.  Is that now a federal crime?

While we are at this, perhaps we should ask the question, in the context of the Mueller investigation, of whether we can identify any conduct that more obviously fits the criteria of using "intimidation," "threats," and/or "corrupt persuasion" to try to get a potential witness to give the testimony that one side of the case wants, whether or not true?  How about, for example, the efforts that Mueller and his team have used against Manafort?

Of course, everybody in the world knows that what Mueller would like most in the world would be to get somebody, anybody who will testify as to something, anything, that would be a prosecutable offense against President Trump.  And, to avoid any issues of whether the investigation is within Mueller's scope of authority, it would be by far best for Mueller if the testimony had something, however slim, to do with "Russia."  Obviously, one-time campaign manager Manafort, with his substantial ties to Russia, is far and away the most likely candidate to provide such testimony.  But wait! -- what if Manafort doesn't have any such actual true testimony to offer?  We have our ways!  I think that in federal prosecutorial circles this is what is called "putting the squeeze" on someone.  Let's review what Mueller has put Manafort through so far:

  • Manafort has been indicted on various charges, the most important of which is lobbying in the United States for a foreign interest without registering.  As mentioned above, this is a crime that is universally committed and almost never prosecuted.  Do you think that federal prosecutors have the slightest interest in looking into the efforts of Hillary and Bill Clinton on behalf of Russian uranium interests?  However, if you do get indicted, it will probably cost you millions to defend, and you may well get convicted.
  • They did a no-knock midnight raid on Manafort's house
  • Then they got Manafort confined in "house arrest."
  • Then they scan and review all of his phone calls, emails and texts, looking for the slightest slip that can enable them to lock him up.
  • Now they threaten to put him in jail up to trial for doing nothing more than attempting to convey his version of the events to potential witnesses.

And all you have to do, Paul, is just give us some useful testimony against Trump, and all this will turn into a simple plea to one count of something innocuous and no jail time.  Does the testimony have to actually be true?  We have no ability to know whether it is or not.  That's up to the jury to determine.  Just give us what you have.

In my view, one of these scenarios is very, very serious "attempted witness tampering," and the other one is completely legitimate conduct.  I'm sure you can figure out which is which.

What's amazing to me is that a guy like Manafort seems to be standing up to this level of brutal government-sanctioned intimidation.  At least so far.  It really gives you an indication that he must really, really have nothing to offer.

Also amazing to me is that the Mueller team seems so to lack self-awareness that they can't see anything wrong with what they are doing, even as they seek to jail Manafort for something not remotely in the league of seriousness as their own wrongdoing.  

And by the way, although this particular investigation may be an extreme case, Mueller's tactics here are the accepted norm of federal prosecution in pretty much all contexts.  It is shocking that the federal judiciary stands by and allows this to occur.  While we were trying to give the prosecutors the "tools" to catch the bad guys, we lost track of the fact that the prosecutors were becoming far worse than the bad guys in many situations.