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Lawsplainer: The Manafort/Gates Indictment

October 30, 2017 by Ken White

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.

Last 5 posts by Ken White

  • Now Posting At Substack - August 27th, 2020
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  • All The President's Lawyers: No Bill Thrill? - September 19th, 2019
  • Over At Crime Story, A Post About the College Bribery Scandal - September 13th, 2019
  • All The President's Lawyers: - September 11th, 2019
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Filed Under: Law Tagged With: Criminal Justice

Comments

  1. Jim Tyre says

    October 30, 2017 at 9:24 am

    Ken, you missed the most critical matter:

    https://twitter.com/FastCompany/status/925010667559669761

  2. James says

    October 30, 2017 at 9:39 am

    Thank you for composing this LawSplainer in such a neutral tone. Facts are neither Republican nor Democratic; they are simply facts.

  3. lokiwi says

    October 30, 2017 at 9:40 am

    While it is, as you say, Serious Business, I still think the most interesting part of the Manafort saga will be if we ever learn why he decided to work on the Trump campaign for free. Manafort’s shady dealings in Ukraine have been the subject of speculation for years. It’s alleged he at least went to some effort to hide his gains. Following that up by taking one of the most high profile jobs in the world, for a billionaire, for no pay, makes little sense. Maybe there’s no there there, or if there is something it’s just Manafort’s thing and nobody else’s. But it will be interesting to find out.

  4. Kairho says

    October 30, 2017 at 9:42 am

    But Mug Shots. Where are the mug shots?

  5. Jon Marcus says

    October 30, 2017 at 10:05 am

    @Iokiwi Manafort had failed to deliver for Oleg Deripaska, to the tune of over $10,000,000. Just declaring bankruptcy and walking away was not an option, or at least not one that'd lead to a safe and calm life. So, per his emails, he tried to "make himself whole" with Deripaska by influencing US policy. (The Republican platform's planks on Russia and Ukraine underwent some pretty dramatic changes not long after Manafort stepped in as Trump's campaign chief.)

  6. Lindsay K says

    October 30, 2017 at 10:45 am

    Ken, I have a question. Is surrender of their passports a bail condition the judge may set, or the prosecutor may reasonably ask for? My knowledge of federal criminal procedure comes mainly from the teevee, but while the danger posed to public safety by Manafort and Gates is low, their alleged foreign connections and dedication to stashing money in a multitude of foreign accounts would seem to make them a flight risk.

  7. Dave Baker says

    October 30, 2017 at 10:48 am

    You say "former Trump campaign chair Paul Manafort and his colleague Richard Gates" as if this is relevant and necessary in order to communicate the facts of this matter. Perhaps it is. What are the dates involved with the alleged crimes? Before Manafort became campaign chair? How many years before? How long was he the campaign chair?

  8. WRD says

    October 30, 2017 at 10:49 am

    Interested in your thoughts about the allegations in paragraphs 35 and 36 re: lying on mortgage application. Could those facts also support an indictment for violating something like 18 USC § 1344?

  9. Matthew Cline says

    October 30, 2017 at 10:51 am

    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.

    Isn't only #2 money laundering? #1 is merely how the money got into the U.S. in the first place.

  10. Rando says

    October 30, 2017 at 10:52 am

    More curious about the Papadopoulos plea… Any comments on that?

  11. Piper says

    October 30, 2017 at 11:03 am

    the most important bit of information I've seen today came from NBC news

    Four sources told NBC News that there was a statute of limitations issue in play that may have helped drive Monday's charges by Mueller.

    Ken – can you speak to which items the statute of limitations may apply to?

    IMHO, it sounds like Mueller's hand was somewhat forced by this, and there is still a long, long way to go in the investigation, much less the prosecutions.

  12. Alex says

    October 30, 2017 at 11:18 am

    Once the indictment has been secured, how much leeway does the Special Counsel have to offer Manafort/Gates some sort of deal (whether in the severity of sentencing or even in dropping some of the charges) in exchange for ratting out some bigger fish? Or is this indictment an indication that a deal was already attempted and not reached?

  13. Dh says

    October 30, 2017 at 11:19 am

    I am a layperson in matters of law. I know that any document more than a sentence long needing a signature should be seen by a lawyer. Any questions asked by law enforcement should be answered through lawyers.

    But sitting down and looking at the statutes – what could someone charge someone who used a foreign adversarial entity to trick people into thinking things like two guys from Nigeria represent American 'Black Lives Matter' or hacking into the DNC – espionage – and using that illegally gained data (Podesta Emails) against a political enemy?

    According to my reading – we don't charge Americans with espionage or sedition often. That's pretty steep for basic monetary gain anyway – and moreover there is no law specifically beyond 'espionage' or 'sedition' to describe what exactly happened here except:

    They conspired with the Russians to affect the election, to defraud the American people to give Trump the Presidency of the United States. Basically, using illegal means (espionage) to gain a public office for personal gain. The second Trump made the idiotic decision to force the Secret Service to house themselves at Trump Tower – he directly benefited from his office. All things done to defraud the US — the espionage, the money laundering, etc. are part and parcel of the ultimate goal — to get the US Government to fraudulently give him money.

    Why did he say 'don't pay me'? Hell, if I thought him smart enough, it would have avoided him getting in trouble for JUST THIS THING. He would not monetarily benefit from the fraud committed to get him into office — and yes, obscuring foreign advertising in an American election is fraud. Because it is illegal for foreign entities to purchase political ads in this country.

    He has personally benefited from his fraudulent ascent to President. Worse will come out – my prediction is resignation due to bad health with Pence actually indicted, pardoned by whoever in the GOP gets the job.

  14. Piper says

    October 30, 2017 at 11:23 am

    @Rando – here's the key bit from that.

    Sounds like Mueller has proof of both collusion and conspiracy based on that footnote in an email trail.

  15. Inwoods says

    October 30, 2017 at 11:55 am

    #corrections:

    "didn't registrar as they were required to" brings back my student days. I used to get in trouble for that one.

    Also, " It can numerous types of transactions"

    Loving the article though, cheers!

  16. Richard says

    October 30, 2017 at 12:40 pm

    I suppose that this means we'll never get the Lawsplainer of "How Federal Grand Juries Work, Part Two?"

    Ah, well, this was just as good, and is now more topical.

    Thanks for Lawsplaining all of this to us, Ken!

  17. libarbarian says

    October 30, 2017 at 12:51 pm

    which requires showing they were required to register and they knew it.

    I have a question about this.

    I once had a federal public defender explicitly tell me that this is not true. She said that proving that you did not know that some act you did was a crime is no defense. She said that the only way ignorance can be a defense is if you can show that you didn't knowingly do the act (ie. did it unwittingly).

    Was she wrong? It has occurred to me that she may have been lying because she wanted me to help her get that person to plead.

    I think this every time I see articles about white collar criminals using "I didn't know what I was doing was illegal" as a defense. I was explicitly told that not knowing what you are doing is illegal is NOT a defense. What are rules governing the old "ignorance of the law is no excuse" ? What laws require knowing the law and which don't?

  18. YoSup says

    October 30, 2017 at 12:59 pm

    @libarbarian,

    Generally, you don’t need to know that what you did was illegal, you only need to know the facts that make it illegal, but some crimes (especially regulatory offenses) do require knowledge of the existence of the regulation. It’s pretty common that laws about evading reporting requirements require an intent to evade the requirement, which implies that you must know about the requirement (though even here you don’t necessarily need to know about the law that makes the evasion criminal – for example, for a structuring conviction you need to know about the reporting requirements for large transactions for it to to be possible to be intentionally evading them, but it still doesn’t matter if you don’t know that structuring is illegal or that what you did counts as structuring).

  19. David Nieporent says

    October 30, 2017 at 1:11 pm

    I have a question, which of course Ken likely won't be able to answer: why weren't they charged with tax evasion?

  20. TGuerrant says

    October 30, 2017 at 1:44 pm

    Just when I thought it was safe to go out and buy a rug to pull the room together . . .

  21. I Was Anonymous says

    October 30, 2017 at 1:54 pm

    I want to know if there were potential charges of colluding with ponies.

  22. Base of the Pillar says

    October 30, 2017 at 2:07 pm

    Lester knows best

    You follow drugs, you get drug addicts and drug dealers. But you start to follow the money, and you don't know where the fuck it's gonna take you."

  23. Trent says

    October 30, 2017 at 3:29 pm

    The money laundering charge is pretty easy to prove, that they even brought it to the table means they've got the evidence to convict from Bank Records they were able to get. All they'd really need is a foreign bank account transferring money into the US that Manafort was on the receiving end of. Without declaration of where the money is from and taxes paid that becomes money laundering and it's trivially easy for the feds to compile a charge on it. And with a money laundering charge always comes a conspiracy charge because you had to conspire to break the banking and tax laws to do it.

    Fun bit of fact here, the FBI will likely hand their information over to the IRS who will then initiate separate charges for tax fraud and seek to recover unpaid taxes. And tax court makes a drum head trial look completely fair, unbiased and procedurally complete. IIRC correctly hiding money overseas and getting caught comes with a 50% excise tax on all proceeds, along with the customary interest and penalties which will probably exceed the original amount by now.

  24. Jig says

    October 30, 2017 at 3:35 pm

    These charges aren't the final say. A first flotilla. Some things we might think would follow naturally might be blocked by statutes of limitation. It's beneficial to have negotiation room. Plus, there's room for some state charges as well…

  25. Piper says

    October 30, 2017 at 4:11 pm

    @David Nieporent

    I have a question, which of course Ken likely won't be able to answer: why weren't they charged with tax evasion?

    They were – money laundering and tax evasion

  26. Matthew Cline says

    October 30, 2017 at 5:37 pm

    @Trent:

    Fun bit of fact here, the FBI will likely hand their information over to the IRS who will then initiate separate charges for tax fraud and seek to recover unpaid taxes.

    Wouldn't the FBI not handing that info to the IRS be a part of the plea bargain?

  27. eric76 says

    October 30, 2017 at 5:46 pm

    I've seen claims elsewhere today that the Feds never issue some indictments in an investigation and then more later and so these indictments mean that the investigation is over and this is the complete results.

    Is there any truth in that?

  28. Trent says

    October 31, 2017 at 5:50 am

    The FBI doesn't have any authority that I'm aware of to prevent an IRS investigation, nor could they block the IRS from seeking the documents the FBI holds.

    Depending on connections they might talk the IRS into not pursuing criminal tax charges but I don't think anyone outside the IRS has the authority to stop them from going after the money owed. In fact I think the IRS is obligated by law to pursue any owed taxes they become aware of. The IRS has their own courts where you're guily until proven innocent regarding money owed.

    IMO if the FBI has documents showing unpaid taxes you can guarantee the IRS will pursue that money until death or payment.

  29. Richard says

    October 31, 2017 at 9:25 am

    @eric76:

    I think the fact that the first indictment (Papadopoulos) was issued weeks before the Manafort/Gates indictment proves that idea false for this specific case, even if it were true in a wider context.

  30. Joe says

    October 31, 2017 at 10:52 am

    The papadopoulos docket is unsealed, but the manafort one isn't. Is there anything to be read into that?

  31. Trent says

    October 31, 2017 at 12:58 pm

    They are trying to get him to talk, that should be rather obvious. At the head of the campaign for a number of months Manafort is well positioned to say who knew what when. Obviously previous efforts to get him to talk were unsuccessful so they are going full prosecution to get his cooperation.

    If he has good legal advice and the government's case is strong he'll take a deal. Combined with what they got from Papadapolous before they revealed the indictment they've likely decided Manafort is key to getting everyone that's colluded. If you are new to popehat you should go back and read some of Ken's previous stories about how the FBI works. Often when they question someone they already know the answers to every question they ask because when you make a mistake or deliberately lie you've just exposed yourself to a 5 year in jail felony conviction that's very easy for them to prove and key leverage to get cooperation. Remember, Martha Stewart didn't got to jail for Insider trading, she went to jail for "lying" to the FBI.

  32. JonRinLA says

    October 31, 2017 at 1:11 pm

    @LindsayK : The L.A. Times story says they had to surrender their passports.

  33. FlameCCT says

    October 31, 2017 at 1:38 pm

    Trent brings up money laundering. IIRC in order for a money laundering charge to be proven, the gov't has to show the money was dirty before being laundered. If it was clean to start with then it never needed to be laundered.

  34. Ming the Merciless Siamese Cat says

    October 31, 2017 at 2:06 pm

    @FlameCCT, That is correct, and taking money from Ukraine for lobbying work is not illegal.

  35. Trent says

    October 31, 2017 at 2:41 pm

    Failing to disclose those revenues to the IRS and leaving them outside the US to hide their existence indicates a conspiracy to violate Federal Tax Law. People aren't businesses, if you are paid money anywhere in the world you have to pay taxes on it the year you receive it. Businesses can create subsidiaries and leave the money in the subsidiary, people can't. Failure to disclose that money makes it illegal.

    Manafort then laundered that money if even $0.01 crossed the border into the US without declaring it's origin and paying the back taxes. After all one of the very purposes of laundering money is to conceal the origin and taxes due. I have no doubt in my mind significant amounts of that $19million the Ukraine paid him ended up inside the US by lying about it's origins. In doing so he committed the conspiracy and the money laundering and all the feds need to prove it is the bank record showing the transfer into the US.

  36. Jon Marcus says

    October 31, 2017 at 4:54 pm

    @FlameCCT, just to be clear: Trent didn't bring it up. Mueller did. From the indictment:

    In order to hide Ukraine payments from United States authorities, from approximately 2006 through at least 2016, MANAFORT and GATES laundered the money through scores of United States and foreign corporations, partnerships, and bank accounts.

    And as that makes clear, it's not true that money earned legitimately doesn't need to be laundered. There are lots of reasons to launder legally earned money: Avoiding taxes, or not wanting to register as a foreign agent are only two possibilities.

  37. Ming the Merciless Siamese Cat says

    October 31, 2017 at 5:44 pm

    @Trent, Yes, but that’s not criminal money laundering under the statute. It’s tax evasion. You can’t criminally launder money that you legally received. But you do have to declare and pay taxes on it. I can put my legally received income through so many slight-of-hand transactions that Houdini himself would tip his hat. But if I accurately declare it on my tax return, I’ve committed no crime. Fail to declare, and I’ve committed tax evasion.

  38. Ann says

    October 31, 2017 at 8:02 pm

    @Ming

    The failure to declare was the criminal activity and the wire transfers were the laundering, as I understood it.

  39. Ming the Merciless Siamese Cat says

    October 31, 2017 at 9:37 pm

    @Ann: Baby Jesus on a unicycle, you can't criminally launder money legally received. Wire transfer it 100 times. Bury it in the back yard. Exchange it for poker chips and back again, ad Infinitim. Run it through a 1000 Cayman bank accounts. If you received it legally, you can’t criminally launder it. Period. End of discussion.

    You can evade taxes on it, but that’s an entirely different charge.

  40. Ann says

    October 31, 2017 at 10:38 pm

    Per former federal prosecutor Renato Mariotti, the crime was failure to register as a foreign agent, and the wire transfers were in the furtherance of concealing that crime (aka "the specified unlawful activity"), which makes them money laundering.

    So sweet-baby-jesus-period-end-of-the-discussion him if you have a problem with it..

  41. Seth says

    October 31, 2017 at 10:42 pm

    You can also structure it. Withdraw $5,000 in cash every business day for a week.

  42. Jon Marcus says

    November 1, 2017 at 5:03 am

    Ming, are you expressing your opinion on what the law ought to be, or your belief regarding what the law is? If the latter, can you cite some source (text of statute, case law, expert opinion, etc) for that belief? As you can see, repeating said belief more and more emphatically doesn't make you more convincing.

  43. ChrisH says

    November 1, 2017 at 5:34 am

    @Ann – Absolutely not a lawyer here, but that makes sense. Without their registering the Ukrainian (& any other foreign govt work) would be illegal, making the money illegally gained. Buying expensive property using shell companies to hide the source of the cash is, it seems, "money laundering 101" according to people who do know about the law!

  44. Lazlo Toth says

    November 1, 2017 at 6:06 am

    I have a somewhat speculative question. I'm a transactional attorney and I have to deal with protection of privilege issues fairly often but not in the sense of the Akin Gump lawyer.

    As the Akin Gump lawyer I would think "this furtherance of a crime exception means they may indict me next for having been involved at all because they want to squeeze everyone, so I'm going to invoke my Fifth Amendment privilege against self-incrimination even if Judge Howell says the attorney-client privilege doesn't apply to the 7 questions" and that Akin Gump itself would have wanted her to since it wouldn't want to be indicted because no professional firm can survive the indictment itself because clients would abandon it faster than they'd abandon a Harvey Weinstein company.

    We don't know the answer to this speculation since the testimony was before the grand jury, but is this kind of approach plausible?

  45. Rob says

    November 2, 2017 at 2:06 pm

    So, based on the nature of the alleged activity, if someone was to say, pardon these guys, are there overlapping State charges that may be filed?

  46. Robert What? says

    November 6, 2017 at 2:13 pm

    I'm confused. Since this is all clearly beyond the investigation of a Trump Russia collusion, why didn't Mueller just hand the evidence he had over to the FBI for further investigation, saying "not my problem." Is Mueller out to get Trump on something, anything?

  47. Michael D. Willis says

    November 6, 2017 at 3:20 pm

    The IRS actions are split into Civil and criminal divisions. The low wattage cases get handled in Tax Court. But prosecutions are officially done by the Tax Division at DoJ with heavy IRS presence. Underreporting a large amount of (income) gets extended statutes of limitations–I think 6 years. And then the 50% surtax gets applies. Prosecution still has the "beyond a reasonable burden of doubt" standard but the questions are limited. Famous defendant answers that didn't win include "I have lots of friends that give me things" (Capone, 1930) and "Only little people pay taxes" (Helmsley a more modern Manhattan hotelier.)

    I wonder why Manafort didn't get up in the IRS High Net Worth project of several years ago.

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