Mueller may not want to admit it, but he still needs Manafort

Mueller may not want to admit it, but he still needs Manafort
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To special counsel Robert MuellerRobert (Bob) Swan MuellerThis week: Mueller dominates chaotic week on Capitol Hill Top Republican considered Mueller subpoena to box in Democrats Kamala Harris says her Justice Dept would have 'no choice' but to prosecute Trump for obstruction MORE, Paul ManafortPaul John ManafortHow Mueller deputy Andrew Weissmann's offer to an oligarch could boomerang on DOJ Ukrainian officials and Giuliani are sharing back-channel campaign information: report Key numbers to know for Mueller's testimony MORE has proven obstinate, egomaniacal and a con artist — characteristics not unusual for cooperators. However, when Manafort was shown to be a mole, leaking information back to President TrumpDonald John Trump5 things to know about Boris Johnson Conservatives erupt in outrage against budget deal Trump says Omar will help him win Minnesota MORE while purportedly cooperating with federal authorities, Mueller had enough. Manafort was cut loose and left to likely spend the rest of his life in jail, barring a presidential pardon.      

This week’s revelation that Manafort provided confidential polling data to Russian intelligence operative Konstantin Kilimnik reminds us of Manafort’s importance. He directly “colluded” with Russians by disclosing polling data. He was one of only three Americans present in the infamous Trump Tower meeting in June 2016 — the other two being the president’s son and son-in-law.  And, he had any number of other questionable and possibly nefarious contacts with Russians in the years, months and days leading up to the 2016 election.  

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Having worked as a federal prosecutor for 13 years in the Clinton, Bush and Obama administrations, it is my considered judgment that despite Manafort’s many character flaws and seeming unwillingness to do what is even in his own best interest, Mueller will still take Manafort back as a cooperator — Manafort is just that important. Why else did Mueller expend so much time and effort — as well as risk exposing parts of his investigation — to indict, try and flip Manafort in not one, but two federal cases?

Yes, Manafort has baggage. And, yes, there are innumerable reasons not to trust Manafort. But, if Manafort’s lawyers can get him to once and for all play straight, Mueller will take him back. A firsthand eyewitness account of what happened inside Trump Tower in June 2016 is critical.  Secondhand accounts (i.e., hearsay) are not admissible in court, and Mueller certainly cannot rely on the Russians to prove his case. Direct testimony describing why, and upon whose orders, confidential polling data was delivered to Russian intelligence could definitively prove “collusion” — the main focus of Mueller’s investigation.  

Cooperators always have baggage. They lie, cheat and steal. They are, by definition, criminals.  The key to any cooperator is corroboration. If Mueller has emails, text messages, bank records, other cooperators and common sense to corroborate Manafort, then he still has value. Of course, any deal offered Manafort now certainly will be worse than before, but what are Manafort’s options? Count on a presidential pardon? Is President Trump really going to pardon a potential witness against him in an impeachment proceeding? Such action would be per se obstruction of justice.      

Mueller also has the unique benefit of not necessarily having to sponsor Manafort as a witness in court proceedings. A presidential trial, if it happens, would take place in the Senate, not a courtroom, leaving members of the House of Representatives to call Manafort as a witness, not Mueller.    

The reality is, Mueller can bring Manafort back into his fold at virtually any time. Prior to sentencing, Mueller can seek a reduction in Manafort’s sentence for cooperation. After sentencing, Mueller still can seek a reduction in Manafort’s sentence for up to one year pursuant to Federal Rule of Criminal Procedure 35. As time moves on, and the presidential pardon is nowhere to be found, Manafort will have only one avenue out of dying in jail: Mueller.  

What becomes more clear by the day is that Manafort lies at the center of proving the Trump campaign colluded with Russia, which is a federal crime despite the constant drumbeat to the contrary.  The federal bribery statute expressly makes it a crime for a public official to “collude” in a fraud on the United States. And, the same applies to anyone who knowingly and intentionally participates in that fraud with the public official.  

Mueller already has filed such charges against the Russians who secretly used social media to influence the election. The crux of that indictment is the Russians’ secret efforts obstructed and impeded the Federal Election Commission’s and Department of Justice’s ability to report to the American people foreign influence in the 2016 election. The same can be said about Manafort disclosing secret polling data to the Russians — assuming that polling data was used to influence the 2016 election.  

Prosecutors like cooperators who never lie, never minimize their role in an offense, and always play by the government’s rules — that nearly never happens. The question is whether a cooperator’s shenanigans so damage his credibility that he becomes radioactive. Mueller clearly reached that point when he cut Manafort loose. But, given Manafort’s obvious importance, it would not be surprising to see him rise from the dead as a cooperator one more time before this thing is over.

Seth B. Waxman, a partner at the Dickinson Wright law firm in Washington, D.C., served as a federal prosecutor in the United States Attorney’s Office for the District of Columbia, and has worked as a criminal defense lawyer in Washington and New York.