Published by The Lawfare Institute
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Special Counsel Robert Mueller has accused Paul Manafort of attempted witness tampering. If the allegations are true, Manafort will have violated the conditions of his release and might have his bail revoked. Judge Amy Berman Jackson has scheduled a hearing on the matter for late next week.
I yield to no one in my disdain for President Trump. And I certainly have no brief for Manafort, who has been accused of laundering tens of millions of dollars from sources connected with Russia and the Ukraine. Thus my overall assessment is that Manafort has some significant legal exposure and that, given his role in the Trump presidential campaign, that exposure is of concern to Trump and of interest to the special counsel.
All that said, I think that the special counsel's allegations of witness tampering are rather ... thin. The FBI agent's declaration in support of the allegations is long on detail about what Manafort and the "Hapsburg Group" did before the elections and short on information about the tampering allegation itself. Drill down into the exhibits and you will see that only one, Exhibit N, is evidence of communications between Manafort and the witnesses he is alleged to have contacted in a tampering effort.
Study that exhibit and you will see that Manafort was successful in speaking to one witness (Person D1) for exactly 1 minute and 24 seconds. He attempted three other phone calls that did not connect and he sent two WhatsApp messages—one a link to an article describing his indictment and the other saying "we should talk." When asked about the contents of the conversation with Manafort, according to paragraph 14 of the FBI declaration, Person D1 said that "Manafort stated that he wanted to give Person D1 a heads-up about Hapsburg" and "D1 immediately ended the call because he was concerned about the outreach."
And that's it. Really. The other part of the allegation is that someone else, Person A, reached out to Person D2 and told D2, in a series of texts that "P" (presumably Paul Manafort) was trying to reach D1 to brief him and that "Basically P wants to give him a quick summary that he says to everybody (which is true) that our friend never lobbied in the US, and the purpose of the program was EU." A month later, Person A reached out directly to D1.
The key to all this is Person D1's perception. He says he thinks that Manafort was trying to suborn his perjury because he knew that the Hapsburg Group had, in fact, lobbied in the United States. Person D2 likewise seemed to think that Manafort was trying to send a message to members of the Hapsburg Group.
But direct evidence against Manafort is almost nonexistent. Saying "we should talk" and "I want to give you an update" or a "heads-up" is hardly the stuff that true witness-tampering charges are made of. And, more to the point, if the entire conversation in which Manfort participated lasted for less than a minute and a half, he'd have to be a very, very fast talker to have accomplished tampering.
To be sure, the statements of Person A are more troubling. Taken at their most damning, they are evidence that the reason Manafort wanted to talk was to try to get Person D1 to agree on a false cover story. But there is very little evidence (at least that I can see in the FBI declaration) that Person A was acting at Manafort's direction and that the story Person A was relating was, in fact, the story that Manafort wanted told. Absent evidence from Person A directly, the bare language of the texts that Person A sent is enough to make the story of witness tampering plausible, for sure. But it is so far from a slam-dunk of evidentiary proof that one has to hope that the Mueller team has more than this to present at a hearing.
Put another way, the texts from Person A and the perceptions of Persons D1 and D2 are mildly probative evidence that, if fully credited, might lead to a witness-tampering conclusion. But they are a long way from substantial, persuasive evidence that would convince an unbiased trier of fact that witness tampering was attemped. And, given the brevity of the one conversation that took place, the likelihood of actual witness tampering is nearly zero.
So what is going on here? Why would Mueller's team, whose actions to date have been premised on overwhelming evidence, take this risk and go out on this evidentiary limb?
My speculation is simple: This is a sign that they are feeling pressure. Possibly from Trump. Possibly from Deputy Attorney General Rod Rosenstein. Possibly just from their reading of the public tea leaves. Whatever the source of the pressure, they have an increased sense of urgency to move quickly.
And that translates to the want, and need, for Manafort's cooperation. Not later but now. And the only way to get that cooperation now is to ramp up the pressure. The motion, if successful, would put Manafort in jail sooner rather than later, at the end of what promises to be a lengthy trial. That would concentrate Manafort's mind quite a bit—and this is the type of pressure tactic that prosecutors use all the time. So that isn't a surprise.
What is surprising, as I have said, is how thin the factual basis appears to be for these charges. I hope that the Mueller team isn't rushing its effort. Now is no time to panic.
UPDATE/ADDENDUM: A couple of Twitter commentators have taken me to task for not discussing a further piece of the submission, namely the portion of one of Manafort's texts that says "I have made clear that they worked in Europe." Aside from the rather ungenerous suggestion that I purposefully left that out to make the case for Manafort stronger (seriously? me?) the critique makes it clear that I should have explained a bit more clearly why I thought that wasn't terribly helpful evidence. For one thing it is true. And true statements are a pretty weak basis for inferring perjury, much less the subornation of perjury. When I read this, my thought was that to make it useful you had to infer an "only" into the text that isn't there. To be sure you can make the argument and the inference, but I did not think it was that much of a strengthening factor. Obviously some think otherwise and that's what triers of fact are for. But it is hard, indeed, to suggest witness tampering from a true statement. And the bottom line remains the same -- Mueller is asking the judge to jail Manafort on the basis of one call and two texts and imputing the more incriminating statements of Person A to Manafort without telling us why we should. Perhaps the case will get stronger at the hearing. But on the limited record before us, it is plausible to be sure (and maybe even true) but it still isn't a slam dunk.