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.
Copyright 2017 by the named Popehat author. https://www.popehat.com/2017/10/30/lawsplainer-the-george-papadopoulos-guilty-plea/
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