‘Ladies and gentlemen, the star witness in this case is the documents.” That is the theme prosecutor Greg Andres hammered home in his summation at Paul Manafort’s bank- and tax-fraud trial in an Alexandria, Va., federal court.
It is a theme that much of the media coverage has glossed over, though it is unlikely to have been overlooked by the jury of six men and six women that sat through the case presented by Special Counsel Robert Mueller’s team.
So will jurors stay focused on the documents — the financial records that prove tens of millions of dollars in income that Manafort, President Trump’s former campaign chairman, stashed in overseas accounts, failing to report the accounts or the income to the IRS?
The defense, of course, has a strategy to help the jury overlook the documents. The strategy even has a name: Rick Gates. The idea is to portray Mueller’s case as rising or falling on Manafort’s longtime business partner and accomplice.
Gates was the trial’s most prominent witness, and he is a scoundrel. Indeed, the only fraud that has been proved so far is Gates’s prodigious embezzlement from Manafort — during the time prosecutors allege that they were both cheating the government. According to the defense, embezzlement just scratches the surface of Gates’s loathsomeness, which also includes extramarital flings and other betrayals. Gates, then, is the star witness, according to Richard Westling, the lawyer who summed up on Manafort’s behalf. If the jury sees him as a fallen star, he just might take the prosecution’s case down with him.
That’s why Andres says it’s all about the documents. And he’s got a point.
In a big trial with accomplice testimony, there is nothing like the moment when the accomplice takes the stand. When he is called upon to identify the defendant as his partner in crime, when he begins to describe their schemes. It rivets our attention. One can be forgiven for overlooking all the dry documentary proof. But there is usually much more to the prosecution’s case than this dramatic coconspirator testimony.
In Manafort’s case, that is true in spades. Remember — though it’s easy to forget — it’s not like Gates agreed to cooperate and suddenly a case against Manafort materialized. Manafort and Gates were indicted together. Mueller’s team had a strong case, based on extensive financial records. Prosecutors were ready to go to trial against both of them.
It is Mueller’s case — the documents — that drove Gates to cooperate, not the other way around.
By the time Gates took the stand in the surprisingly swift trial, Mueller’s prosecutors had already proved, or laid the groundwork to prove, the fraudulent transactions charged in the indictment. From the prosecutors’ standpoint, Gates merely tightens up one part of the case: mens rea, Manafort’s criminal state of mind. Yes, it is a critical element, but it is one prosecutors insist they could have proved without the accomplice’s help. Gates is there to assure the jury that Manafort was not too confused or distracted to grasp complex financial transactions. The documents prove that Manafort’s deceptions of financial institutions and the tax-man were not an accident; Gates just confirms that Manafort acted willfully.
Nevertheless, Gates remains Manafort’s best shot at beating the case. That is why Manafort opted to exercise his right not to testify, and why his lawyers chose not to present any defense case. That would have reminded the jury that the case is about Manafort. They want the case to be about Gates.
By selling his case against Gates on the cheap, Mueller undercut his prosecutors’ contention that the accomplice’s testimony is not that important.
Gates’s gift to the defense is the sweetheart plea deal he was gifted by Mueller. Only a day after indicting Gates for the second time, on charges that potentially exposed him to hundreds of years in prison, the special counsel let him plead guilty to two minor charges, capping his potential exposure at just ten years, with a possibility of no jail time. As we noted at the time (here and here), the plea deal violated Justice Department guidelines. It was certain to make Gates a less effective witness.
It did. Gates should have been forced to plead guilty to the most serious, readily provable charge in the indictment — bank fraud, a 30-year count. In my old office (the U.S. attorney’s office for the Southern District of New York), he would have been made to plead guilty to much more, but a 30-year count would at least have made it look like Mueller was not giving the store away. And Mueller did not need to give the store away — he had the same strong case against Gates as he did against Manafort.
Instead, Gates did not plead guilty to the bank-fraud charges that Mueller alleges he and Manafort schemed up together. And, as Manafort’s lawyer was only too happy to remind the jury in his summation, Gates testified that he (Gates) did not intend to defraud a bank. There cannot be a conspiracy unless the two alleged culprits agree on the objective.
More to the point, by selling his case against Gates on the cheap, Mueller undercut his prosecutors’ contention that the accomplice’s testimony is not that important. If it’s not, why did they give away so much to get it?
Moreover, because of Gates’s testimony, the jury understands that, for the very same offenses that have Manafort looking at spending the rest of his life in a federal penitentiary, the special counsel essentially let Gates walk. Jurors are not going to like that. They will ask themselves, “How serious can these crimes really be?”
Of course, that doesn’t make Manafort innocent. And it doesn’t mean the documents are not damning. They are. Will they be enough? Prosecutors are counting on them to be the real star witness. For a prosecutor, documents are much tidier than witnesses: They don’t have extramarital affairs, they don’t steal from their business partners, and you can get them by just issuing a subpoena — no slap-on-the-wrist plea deal required. Bob Mueller’s team is betting the documents are a mountain too steep for Paul Manafort to overcome.