My Style - Reclaim My Identity : October 2017

Monday, October 30, 2017

Lawsplainer: The George Papadopoulos Guilty Plea

This morning the United States District Court for the District of Columbia unsealed a criminal proceeding against George Papadopoulos, who acted as a foreign policy adviser to the President's 2016 campaign. We can tell some interesting things from these documents. You have questions, I have answers.

Wait! The case was sealed? How does that happen?

Federal courts can seal proceedings — that is, arrange so they are not public and do not appear on the public document. It is not uncommon to seal a proceeding against a defendant who is cooperating against other defendants or targets of the investigation. Here the record suggests that Papadopoulos cooperated immediately and the Special Counsel was anticipating his cooperation.

The now-unsealed docket shows that the Special Counsel filed a complaint and obtained an arrest warrant on July 28, 2017, and asked that the complaint be sealed from the beginning. The affidavit in support of the complaint describes the investigation. The FBI arrested Papadopoulos in Virginia on August 1, 2017. Under normal circumstances this would start the clock for multiple proceedings – a proceeding to send Papadopoulos from Virginia where he was arrested to DC where he was charged and a timeline to either hold a preliminary hearing (which almost never happens in federal court) or more likely indict him. None of that happened, because Papadopoulos immediately agreed to waive all his rights under the applicable rules and agreed that the proceedings would remain sealed. All of that shows that he cooperated immediately.

So what did he plead to?

Papadopoulos pled to an information charging him with lying to the FBI in violation of Title 18, United States Code, Section 1001. In federal court, you have a right to a grand jury indictment in a felony case, but Papadopoulos waived that right, allowing the more informal information as a charging instrument. Papadopoulos entered into a fairly straightforward and standard plea agreement, agreed to and accepted a statement of facts about what he did, and entered his plea before the United States District Court for the District of Columbia on October 5, 2017. By stipulation of the parties the court maintained the proceedings under seal until today.

What can we glean from the fact that the Court kept the case under seal?

Papadopoulos' cooperation is central to his plea. The plea agreement provides that the government will bring his cooperation to the Court's attention at sentencing and that sentencing will be delayed until his cooperation is complete. It is possible, though not certain, that the Special Counsel used Papadopoulos for "active" cooperation — for instance, by making recorded calls to targets of the investigation, engaging in monitored email exchanges with targets, or even wearing a wire during meetings with targets. Keeping the entire proceeding under seal for a month after his plea is consistent with such cooperation. However, that level of cooperation isn't certain: it could be that they considered using him for such activities but didn't, or that they wanted to keep the nature and direction of the investigation secret until now. But it's clear that they contemplate using him against other targets of the investigation one way or another.

So what did he do, anyway?

According to the affidavit in support of the complaint and the factual statement he accepted, Papadopoulos lied to FBI agents during a January 27, 2017 meeting (note that's before the appointment of the special prosecutor) about his interactions with Russian nationals in connection with his role in the Trump campaign. Specifically, he lied about the nature and extent of his contacts with Russians during the campaign. He told the FBI that Russians offered "dirt" on Hillary Clinton in the form of "thousands of emails" before he joined the Trump campaign, when it was actually after, and characterized conversations with Russians as minor in consequential when they were actually extensive. In addition, after a second interview with the FBI in February 2017, Papadopoulos deleted a Facebook account which contained some of his communications with the Russian nationals, and created a new one. The FBI was nonplussed.

So did he actually obstruct justice or interfere with the investigation through his lies?

Almost certainly not. The complaint shows that the FBI used a search warrant to get emails that contradicted Papadopoulos. The timeline isn't explicit, but it's possible — in fact, probable — that they had the emails or other evidence before they even interviewed him, and knew he was lying at the time. To convict on a Section 1001 charge for lying to the government, the government doesn't have to prove that you successfully lied or that the lie delayed or impeded them. They only have to prove that the lie was on a subject of the sort that could be relevant to the investigation. That's why interviewing subjects and targets hoping they will lie to you and thus make a case for you is a common tactic in federal investigations.

If Papadopoulos had shut up and refused to talk to the FBI — the smart thing to do — he almost certainly would not be charged with anything yet, and could have escaped any charges ever. He had to plead to a federal felony because he talked to the FBI and lied, and then foolishly tried to destroy evidence. That is a feature, not a bug, of federal investigations.

What happens to him from here?

He'll hang out in limbo — having entered a guilty plea but with no sentencing hearing yet — until the Special Counsel is finished with his cooperation. So long as his sentencing isn't scheduled you'll know that the Special Counsel thinks that they still might need his cooperation, probably in the form of testimony.

Is he going to jail?

I doubt it. Though the maximum statutory penalty for the crime he pled to is five years, the recommended sentence under the U.S. Sentencing Guidelines is a few months, or probation — the government admits that in the plea agreement. This is, once again, why you should not pay attention to the maximum possible sentence on federal crimes when the media reports them. The very highly probable result is probation, even if he hadn't cooperated. That calls into question, a bit, what his motivation is to cooperate further. It suggests — but does not prove — that the government had other charges that it could have brought, and agreed not to bring them in exchange for his ongoing cooperation. Or he's so terrified of a few months in jail that he wants to buy nearer-to-certainty that he'll get probation.

What does this show about the nature and status of the Special Counsel's investigation into whether the Trump Campaign improperly communicated with Russians?

It shows that the FBI was investigating the Trump campaign's contact with the Russians not later than January 2017, that the Special Counsel continued that investigation, that they've obtained emails showing communications by at least some people with Russians, that Russians told campaign representatives that the Russians had "dirt" in the form of emails about Clinton, and that the Special Counsel is (for now) continuing the investigation.

Lawsplainer: The Manafort/Gates Indictment

Special Counsel Robert S. Mueller has secured a substantial indictment against former Trump campaign chair Paul Manafort and his colleague Richard Gates. The indictment is many places online including here.

So the federal grand jury looked at all of the evidence against Manafort and selected these charges against him and Gates?

No. As I've explained in past lawsplainers, that's not how grand juries work. The prosecutor — here the Special Counsel — selects what evidence to present to the grand jury, selects the proposed charges, and drafts and presents the proposed indictment to the grand jury. The grand jury does nothing but vote to agree that there's probable cause to bring these charges. The grand jury is more accurately viewed as a tool rather than as a significant limit on prosecutorial power.

So what are they charged with?

The Manafort/Gates indictment is a fairly standard "kitchen sink" white collar indictment that illustrates the wide array of tools available to federal prosecutors, as well as the power prosecutors have to use an investigation to provoke further federal crimes as leverage against the foolish.

The lead charge is conspiracy (1) to defraud the United States and (2) to fail to file reports of foreign bank accounts, to act as an unregistered agent of a foreign principal, and to make false statements to the government, all in violation of Title 18, United States Code, Section 371 Section 371 is commonly used to describe a conspiracy to violate a particular federal statute — like a conspiracy to distribute drugs or rob a bank. This indictment does that — it says Manafort and Gates conspired to violate federal statutes — but also uses the less familiar "defraud the United States" language of the statute. To secure a conviction on this charge the government must prove (1) that there was an agreement between two or more people to pursue an unlawful objective (like a violation of a federal statute or fraud against the federal government), (2) that the particular defendant knew of the unlawful objective and voluntarily agreement to join the conspiracy, and (3) that someone committed an "overt act" — a step towards the conspiracy's objective. The government's theory is that Manafort and Gates conspired to hide their foreign agent status, hide their foreign agent income, and launder the proceeds.

The second charge is a conspiracy to launder money in violation of Title 18, United States Code, Section 1956(h). To prove this charge, the government must prove that (1) there was an agreement to commit money laundering, and (2) the defendant joined the agreement knowing its purpose and intending to further it. But what's money laundering when it's at home, you ask? It can numerous types of transactions with money derived from a "Specified Unlawful Activity" or used to promote or hide such an activity — that is, an activity listed in Title 18, United States Code, Section 1956(c)(7), one of which is "any felony violation of the Foreign Agents Registration Act of 1938." The government has two theories of how Manafort and Gates conspired to launder money: (1) they conspired to move money into the United States to promote the carrying on of violations of the Foreign Agents Registration Act, and (2) they engaged in transactions with proceeds of violations of proceeds of the Foreign Agents Registration Act in order to hide those violations and evade taxes.

The third set of charges (counts Three through Six) asserts that Manafort failed to file mandatory reports of his ownership of foreign bank accounts as required by Title 31, United States Code, Section 5314, which is a felony. This requires the government to prove that Manafort knowingly and intentionally evaded the foreign bank account reporting requirements.

The fourth set of charges (counts Seven through Nine) charges Gates with failing to file mandatory reports of foreign bank accounts, also under Section 5322.

The fifth charge (Count Ten) accuses Manafort and Gates of failing to file a statement of registration as a foreign agent as required by Title 22, United States Code, Section 612, which is a felony. Once again the government must prove that Manafort and Gates knowingly and intentionally failed to file the registration (which requires showing they were required to register and they knew it.)

The sixth charge (Count Eleven) accuses Manafort and Gates of making false statements about foreign agent registration, again in violation of Title 22, United States Code, Section 612 and 618. Once again the government has to show that the defendants knowingly and intentionally made false statements to the government about agent registration. Based on the language of the indictment, it appears that the alleged false statements were made after the Department of Justice investigation of their agent status began in November 2016 — in other words, the false statements were allegedly made to cover up the crime. Why does nobody shut up?

The seventh charge (Count Twelve) accuses Manafort and Gates of lying to government investigators in violation of Title 18, United States Code, Section 1001, based on the same lies about agent status. Once again the government has to prove that the defendants knowingly and intentionally lied to the government. Section 1001 is one of the favorite weapons in the government arsenal, frequently employed to trip up people too foolish to shut up.

There's a lot of additional details — alleged lies to banks, alleged lies to accountants, alleged lies to the IRS — but that's the heart of the government's theory: they acted as foreign agents, didn't registrar as they were required to, lied about it when asked, and brought the proceeds into the country to hide the proceeds, hide the agent activity, and evade taxes. This is Serious Business, no consolation-prize indictment.

How much time to Manafort and Gates face?

You're going to see a lot of journalists answering this question by adding up the maximum possible sentence Manafort and Gates face under all of the things they are charged with. That's very misleading. If convicted, the heartland of the likely sentencing range — the point the judge will start out before deciding if the facts justify going higher or lower — will be calculated under the United States Sentencing Guidelines. Especially in a case like this, that calculation will be as complex and multi-factored as a medium-sized business tax return. If there is a sentence, it will almost certainly bear no relation to the maximum potential sentence.

So what happens next?

Manafort and Gates will be booked and will make their initial appearance before a United States Magistrate Judge, probably this afternoon. They'll be released based on some sort of bail under the Bail Reform Act, which will provoke uninformed outrage. The fact that they were allowed to surrender suggests that the Special Counsel won't seek high bail — they may even be released on their own recognizance without bail, or may only be required to sign a signature bond (a promise to pay money if they don't show up), but may be required to post money or property to secure their return. That could get interesting, as the Special Prosecutor can make them demonstrate that the money or property they post is not derived from ill-gotten gains. Eventually — possibly at their first appearance, more likely at a late appearance — they will be arraigned (formally informed of the charges against them) and enter their not guilty pleas. Then the schedule will be determined by the United States District Judge to whom the case is assigned. Under the Speedy Trial Act they have a right to trial within 70 days of their first appearance, absent application of a host of exceptions that are almost always applied. It's likely that everyone will agree to a much later trial.

Wednesday, October 25, 2017

The Road To Popehat: This Isn't Legal Advice Edition

It's time for the Road to Popehat, that feature in which we check out the traffic logs, see what searches brought you here, and contemplate whether a North Korean warhead's continental EMP pulse would really be such a bad idea.

In today's edition, you have legal questions.

Writing an effective letter to a prosecutor Sit down. I have some bad news for you.

if we tell somebody her photo on facebook is ugly, is that libel or defamation RICO. Definitely RICO.

what happens when dea agents arrest u right there Put down the phone, man. They're going to tase you.

can you sue someone for calling you a miserable fucking cunt No, Mr. President, you can't.

in texas can a spouse file a defamation claim against a spouse You know, I'm not going to be able to make it to Thanksgiving this year. Sorry.

letter to the court apologizing on behalf of my friend for solicitation Your "friend" may want to run that letter past your "friend's" lawyer before sending it to the judge.

amputation penis judicial sentence See! Deterrence works!

Tuesday, October 24, 2017

In Which My Identity Is Sought By Federal Grand Jury Subpoena

Mike Masnick at Techdirt reported it first: the United States Attorney's Office for the Northern District of Texas issued a federal grand jury subpoena to Twitter, seeking the identifying information for five Twitter accounts, including @popehat.

Here is the subpoena.

I'm 98.5% confident that this related to the federal prosecution of one Justin Shafer, who is charged with using computers to harass an FBI agent and his family. You can read about Shafer's background in Mike's post. You can read the complaint against him here.

Twitter sent me the subpoena. I searched twitter for interactions with the other accounts named in the subpoena — @dawg8u, @abtnatural, @associatesmind, and @PogoWasRight, and saw interaction on only two issues — the Shafer prosecution and the prosecution of John Rivello, accused of giving Kurt Eichenwald a seizure by sending a graphic file. I pulled up the dockets from PACER and noted that the AUSA who signed the subpoena is the same AUSA on the Shafer case, and there you go. As far as I can tell, the Assistant U.S. Attorney prosecuting Shafer subpoenaed Twitter to get this group of users' identities because, in a thread about the Rivello case, Shafer tweeted a smiley face at us in response to someone mentioning the same agent Shafer is accused of stalking.

I don't know whether the U.S. Attorney's Office's theory is that we're confederates, or who know about Shafer's activities, or that we're his sock puppets, or what.

I have three comments about this.

First, it's an odd use of resources to send a grand jury subpoena to discover my identity, when it's so public.

Second, though I'm public and thus don't care about my identity being revealed, some of the other Twitter users subject to the subpoena are not. I understand at least one of them may challenge the subpoena. That's good. The Department of Justice has no rational need to piece the anonymity of the other Twitter users. This is part of a pattern of the Department of Justice seeking to uncover anonymous internet users for no good reason, as we saw when the Department of Justice subpoenaed Reason Magazine to discover the identities of some commenters who made rude (but absolutely not true-threat) comments about a judge. It's disturbing that the government would seek to strip Twitter users of anonymity just because a defendant sent them a smiley face unsolicited.

Third, when I read the subpoena yesterday, I was suddenly gripped with exactly the sort of impulses that I urge clients to resist: the overpowering urge to do something and talk to someone to straighten it all out. I was tempted to email the AUSA and introduce myself, and to argue that it's ridiculous that he subpoenaed my identity, and ask what the hell he wants. That, of course, would be extremely stupid, even though I've done nothing wrong — perhaps especially because I've done nothing wrong. Fortunately, just as I plead with clients to resist this urge to reach out to the government, I resisted it myself. But I must admit it is powerful.