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Seth Abramson @SethAbramson
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(THREAD) No one should obsess over the Manafort trial—or let it distract from other elements of the ongoing Trump-Russia probe—for a reason any criminal defense attorney could tell you. Read on for more details of why this trial is finally a distraction. I hope you'll share this.
1/ Prosecutors have made clear that two words jurors will almost never hear during this first Manafort trial are "Russia" and "Trump." Quite simply, this case isn't directly about Trump-Russia coordination—and anyone wrongly thinking it *is* lets Trump's team score cheap points.
2/ It's also fairly clear that Manafort won't be cutting a cooperation deal with prosecutors, though technically he could do so at any time prior to a verdict being returned. But now that prosecutors have had to prepare for trial, Manafort's window for a sweetheart deal has shut.
3/ Almost anything that we could learn about Manafort's lavish lifestyle, hidden bank accounts, and shady connections to employers in Ukraine has already made it into the press. The jury will simply hear a far more detailed version of a story whose broad strokes we already know.
4/ This is what's called a "paper case"—meaning it's easy to prove because most of the evidence consists of financial documents which, if they're authenticated and adequately explained to jurors, establish a series of facts that it would be almost impossible to wriggle out from.
5/ The questions before jurors are pretty basic: did Manafort declare certain income? Did he hide ownership of certain accounts? Did he make statements to law enforcement that are contradicted by the documents that jurors will be looking at? There aren't many shades of gray here.
6/ Manafort is old enough—and these charges grave enough—that if convicted he'll likely be in prison the rest of his life. Trump could pardon him, but that *wouldn't* keep Manafort from being subpoenaed to testify by Mueller post-conviction/post-pardon, so how would it aid Trump?
7/ Manafort has already, with his silence—and his silence in the face of having no clear defense against a "paper case" in which his co-conspirator will testify against him and the documents the feds have seem to be comprehensive and compelling—told Trump that he's not a snitch.
8/ So it's not clear what Manafort has to gain by expecting a pardon or what Trump would gain by granting one. Manafort would still have to testify against Trump post-pardon (or face jail again were he to ignore a subpoena) and Trump would only face needless political backlash.
9/ Instead, Trump can just let Manafort be put away for life knowing that Manafort won't cooperate until convicted (in both trials, this one and the other) and subpoenaed. Trump buys no time with a pardon, and knows if Manafort were going to snitch he would have done so already.
10/ And yet there's also no reason to think Manafort wins this at trial—the "my co-conspirator really did it" defense only works in non-paper cases, and then rarely, as jurors do believe bad folks will come clean and tell the truth when given (as Gates has been) enough incentive.
11/ That said, Manafort could be hoping to drag this out on appeal so Mueller can't subpoena him—hoping that the whole Trump affair is over (without his testimony) before he loses any of his arguments to quash a subpoena and not testify (e.g., pre-conviction self-incrimination).
12/ That still ends with Manafort serving the rest of his life in prison—so what's his game? Well, a criminal defense attorney will tell you that this case is what we in the business call "a long goodbye." The defense attorney knows his client is going to be convicted at the end.
13/ Conventionally, in a "long goodbye" the purpose of the defense is to make the judge sympathetic to the defendant so when sentencing arrives, the defendant gets leniency. The defense at trial is itself pro forma—the defendant knows this—and the purpose is provoking sympathy.
14/ It goes without saying that a "long goodbye" is the absolute last resort for a defendant and his attorney—the case must be truly unwinnable, and one in which the client cannot plead for some reason. But here's the problem: Manafort isn't running a "long goodbye" defense here.
15/ By casting blame on Gates, Manafort is burning his shot at an effective "long goodbye"—taking no responsibility for his actions. That's a signal that his attorneys know he'll get the equivalent of a life sentence (given his age) if he's convicted. So something else is afoot.
16/ (I should also note that federal sentencing guidelines are more draconian and pre-cooked than state-level ones, so "long goodbyes" are never as effective in federal court as in state court.)
17/ What a criminal defense attorney watching all this would conclude is either Manafort won't snitch on principle (counter-argument: he has no principles); someone has threatened to kill him and his family if he talks; or he insanely believes he has a shot at winning this case.
18/ There's no point in discussing a threat to Manafort/his family, as we'll never find any confirming evidence of it if the threatening party (likely Russian or from Ukraine) knows what they're doing. The idea that Manafort has principles isn't borne out by anything in his life.
19/ But there's also no chance that Manafort *really* thinks he can win—and he knows that if he loses and gets life in prison he can ignore any subpoenas Mueller serves on him and face no additional harm because, well, what are they going to do, put him in prison for life twice?
20/ So there's likely a real or perceived threat here, and Manafort figures he'll take the 1%-4% chance of winning or somehow getting a non-life sentence (with the alternative of a life-equivalent sentence and the ability to avoid subpoenas which could get him/his family killed).
21/ There's one other possibility, and it may be more likely than any other: NBC reports Trump thinks Manafort can sink him. What if NBC is right? What if Manafort's testimony is that valuable? Then maybe he thinks he could cut a deal post-conviction and get a sentence reduction.
22/ By that logic, going to trial makes the *most* sense for Manafort because it keeps the largest number of options open: pardon; appeals; not guilty verdict; post-conviction sentence-reduction deal; post-conviction power to "ignore" a subpoena; a non-life sentence after trial.
23/ But none of that should have us on the edge of our seats hoping to learn something new from the trial, hear substantial Trump/Russia content, to find that Manafort is actually—or can be found—not guilty. That way lies two or three weeks of stupid distractions from other news.
24/ Yes—in the normal course of business the idea a presidential campaign manager working for "free" was really working off a debt to the very same clandestine forces that were trying to help that presidential campaign would be huge international news. But we knew that long ago.
25/ So I'm not going to focus overmuch on this trial here on the feed—because it's an obvious sideshow and distraction. What matters is how Manafort's strategy here feeds into the larger Trump strategy or endgame, not the minute details of a story whose key elements we know. /end
PS/ There's always a chance that the government or (paradoxically, more likely) Manafort's defense reveals some interesting key fact we would never have guessed. And if/when that unlikely event occurs, I'll discuss it here. But 14-21 days of obsessing over this fait accompli? No.
PS2/ Some will say if Trump pardons Manafort, Manafort can agree to testify and then simply lie for Trump—that way he's both free and not snitching on anyone. One could also argue his testimony would hurt Trump but not—not really—dangerous Russians or people in Ukraine. Maybe so.
PS3/ What *that* theory fails to account for is Manafort doesn't know the evidence Mueller has on him/Trump regarding the campaign—but knows Mueller has *3* top Trump aides in the bag. So if Manafort tries to get clever on the stand post-pardon, he'll end up with Perjury charges.
PS3/ This is what I mean about "keeping options open"—and how that has little to do with the trial being interesting or offering new facts. Suppose Trump pardons Manafort and then Trump somehow goes down before Manafort's testimony is needed? That's the ultimate win for Manafort.
PS4/ Still, *any defense attorney* would play the odds and say, a) cut a deal now, b) do enough time you're in custody during the period you'd be in danger, and c) get out after Trump is already impeached and removed and by the time you're out there'll be no point in harming you.
PS5/ The problem with that logic: a) Manafort may need to send a signal he'd never snitch due to possible charges on Russians/others the feds don't know about, and b) if Trump is removed and Manafort's testimony is directly responsible he may think he'll never be safe in America.
NOTE/ In case you hadn't guessed it, what I'm hoping you'll take from this thread is that Manafort's *strategy* is what has significant and lasting import in the Trump-Russia story—but *not* (unless there's a *huge* surprise) either the evidence in his trial or its likely result.
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