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.
Copyright 2017 by the named Popehat author. https://www.popehat.com/2017/10/30/lawsplainer-the-manafortgates-indictment/
No comments:
Post a Comment