How to Interpret Robert Mueller’s Charges Against PaulManafort

wired.com /story/how-to-interpret-robert-muellers-new-charges/

Former FBI director Robert Mueller

Andrew Harnik/AP

With public criminal charges against former Trump campaign chairman Paul Manafort announced Monday morning,this year’s biggest political story—the former FBI director Robert Mueller’s investigation of Russian interference inthe 2016 presidential election—will enter an important new phase, guided not just by whispers and Twitter wars butby written indictments and the rules of federal evidence.

The indictment targeting Manafort and his business associate Rick Gates—itself a political bombshell—is likely tobe merely the first step in a potentially long investigation. Details from the indictment—and other emerging publiccourt documents—will immediately help to shed further light on the tangle of relationships that Manafort and othershad with various Russian and Ukrainian contacts in recent years, but there are plenty more investigative avenuesthat Mueller appears to be following, some far removed from Manafort's orbit.

Manafort faces a long list of charges that includes conspiracy against the United States, conspiracy to laundermoney, false statements, acting as an unregistered agent as a foreign principal, making misleading statements inviolation of the Foreign Agent Registration Act, and seven counts of failing to file reports of foreign bank and financialaccounts. That's a dozen in all.

Here are five rules of federal investigations to keep in mind as you read about the new charges and think about theirimplications:

1) The FBI takes down whole organizations. The charges announced Monday in Mueller’s investigation arealmost assuredly only a first step in what could be an very long and extensive grand jury investigation.

Only rarely does the FBI end up charging a single individual; it’s simply not worth the time and resources of thefederal government to go after individuals in cases outside of rare instances, like say, terrorism. Institutionally, theFBI’s modus operandi and DNA is to target and dismantle entire whole criminal organizations—that’s why federalcases usually take so long: The agency starts at the bottom or periphery of an organization and works inward, layerby layer, until it’s in a position to build a rock-solid case against the person at the top.

1/4

This investigative method has been the heart of the FBI’s approach since the 1980s, when it and the JusticeDepartment—led by an era of aggressive and brilliant prosecutors like Louis Freeh, Rudolph Giuliani, and MichaelChertoff—began to attack La Cosa Nostra in New York. The FBI relied then on a then-new tool, the RacketeerInfluenced and Corrupt Organizations (RICO) Act, to attack and dismantle entire mafia families, charging dozens orscores of suspects in a single case.

The approach, then and now, has been almost always been similar: Work on peripheral figures first, encouragethem to cooperate with the government against their bosses in exchange for a lighter sentence, and then repeat theprocess until the circle has closed tightly around the godfather or criminal mastermind. There’s no reason to thinkthat this investigation will be any different.

In fact, members of Mueller’s investigative team cut their teeth on a who’s who of the biggest Justice Departmenttargets of the last quarter century, taking that “organization” approach to cases like Enron (prosecutor AndrewWeissmann led the task force), al-Qaeda (aide Aaron Zebley helped investigate the 1998 embassy bombings before9/11), and organized crime (prosecutor Greg Andres helped investigate the Bonnano family in New York, as well asthe $8 billion Ponzi scheme led by Texan financier Robert Allen Stanford, who’s now serving a 110-year prisonsentence).

Weissmann—who was spotted Friday outside the grand jury room—is considered an expert on “flipping witnesses,”encouraging people to testify against their colleagues. In the 1990s, he led the case against mobster Vincent “theChin” Gigante, from the Genovese crime family, with the help of turncoat witnesses.

2) Don’t hold your breath for “collusion.” For all the talk of Russian collusion, there isn’t really a federal crimethat matches what the press, critics, and Capitol Hill lawmakers have been calling collusion, a word that referslegally to a narrow segment of antitrust law. And there’s almost zero chance anyone will be charged with treason, acharge that’s only available to use against enemies in a declared war.

Instead, nearly all charges that stem from this case—based, at least on publicly available tea leaves—are likely tofocus on targeting individual crimes reflecting aspects of the complex web of Russian influence in 2016, rather thana neatly-tied-up-with-a-bow conspiracy. Early rounds of charges may even likely focus on business dealings farremoved from the questions of the 2016 election.

Expect to see garden-variety white-collar crimes—charges like money laundering, mail fraud, wire fraud, and“structuring,” (arranging financial transactions to avoid federal reporting requirements)—as well as the possibility ofsome more exotic charges like violating the nation’s election laws or the Computer Fraud and Abuse Act, or there’s ageneral catch-all known as 18 USC Sec. 371, “conspiracy to commit offense or to defraud United States.”

There’s also the crime of being an unregistered foreign agent—a charge known inside the Justice Department as a“FARA violation,” after the Foreign Agents Registration Act. A FARA violation is typically the FBI’s go-to way tocharge espionage and foreign intelligence officers—the cases are rare and only a few agents in their careers everhave a chance to work a FARA case—but we’ve already seen Paul Manafort and Michael Flynn retroactively registeras “foreign agents” this year, showing that they have some legal exposure in this realm.

As the case unfolds, there will almost assuredly also be charges that, in many ways, form the foundation of manyfederal cases: obstruction of justice, perjury, or lying to federal agents (a.k.a. “making false statements”). Thesecharges are particularly common in special counsel-type investigations—and can end up targeting people unrelatedto the original criminal act. During Patrick Fitzgerald’s investigation into the leak of Valerie Plame’s name, forexample, it was Vice President Cheney’s chief of staff, Scooter Libby, who ended up in the hot seat for obstructionand perjury. Similarly, Marine General James Cartwright was charged with lying to federal investigators as part ofthe investigation into the Stuxnet leak. These charges—perjury, obstruction, false statements—are often used asleverage to seek a witness’s cooperation (see No. 4).

2/4

This approach and the reality of federal criminal law means that the full picture of what happened in 2016—and evenbefore—is likely still years away from being understood.

3) There are many threads, including some likely unrelated to others. Based on what we know so far, it appearsthat Russia’s information operation against the 2016 presidential election might have been less of a top-downconspiracy and more of an opportunistic case of many different arms of the Russian octopus—the strange mix ofpoliticians, intelligence officers, oligarchs, criminals, and professionals who surround the Kremlin—working to exploitevery potential opportunity.

Just in the last week, we’ve seen how expansive the Mueller investigation might be inside the nondescriptWashington, D.C., office where his team has been assembling evidence for months. He’s evidently covering not justthe Trump Tower meeting (coordinated with the Kremlin?), but digging into Paul Manafort’s finances (his realtortestified before the grand jury last week), looking at Michael Flynn’s work with Turkey, and the social mediaadvertising and targeting that went on as well. Add in the hacking of the DNC and John Podesta’s email, which hadalready been the subject of an FBI investigation before the election even unfolded—and which might represent anentirely separate Russia nexus through Wikileaks—or what we’ve now learned about the attempted penetration ofstate-level voting machines, and it’s clear that this case will evolve for many months to come. And all of thoseindividual cases or investigative avenues might prove ultimately unrelated to the Big Question: Did President Trumpattempt to obstruct justice with his firing of FBI Director James Comey?

4) The first charges are only a starting point—but don’t necessarily wait for the dramatic Perry Mason-styletrial. The indictments handed down by a grand jury that lead to a target’s arrest are rarely the charges the targetultimately faces in a courtroom. Federal prosecutions—particularly complex, still unfolding ones like Mueller’s—often go through many legal iterations, with so-called “superseding indictments” either adding additional chargesdown the road as more information becomes known or, as trial nears, dropping ancillary charges in order to zero inon the most potent and provable ones.

However, as much as Law and Order may have taught us otherwise, very very few cases go to trial—generallymore than 90 percent of federal cases are settled via a plea bargain. That’s in part because the government isheavily incentivized to take the bird-in-hand of a lesser charge for a guaranteed success, but also because thegovernment has tremendous leverage in a criminal negotiation, from the length and location of a prison sentence(much better to be in the low- security FCI Danbury prison in Connecticut than it is to be in the high- security FCITerre Haute in Indiana) to what assets the government might try to seize (think: “Nice house your family lives in—shame if something happened it”) to what the impact of a unfolding case might be on family members. (You have anaunt who overstayed her visa? Maybe the government promises to overlook that. Your son or wife was also in on thescheme? Maybe you plead guilty right now to a heftier charge to stop the investigation of your family.) Weissmannused this tool to effect in the Enron trial, leveraging the charges against former Enron CFO Andrew Fastow and hiswife to encourage Fastow to testify against Enron CEO Jeffrey Skilling.

Pay particular attention if you start seeing Mueller’s team filing not criminal indictments but “criminal informations,”which are effectively criminal charges done with the cooperation of the target: That means the suspect iscooperating with prosecutors and has likely worked out a deal to provide testimony or evidence against others, orhas negotiated the charges in advance and intends to plead guilty quickly.

It’s clear, too, that Mueller is coming at this investigation with an even broader lens: One of the Justice Departmentveterans he recruited to the team, Michael Dreeben, is known for being the government’s smartest mind onappellate cases—that is, how a case will play out down the road on appeal—and he’s argued 100 cases before theSupreme Court, putting him in a rare class of lawyer who can meld not just the evidence necessary for a trial butalso the legal theory and jurisprudence necessary to sustain that case through years and rounds of appeals. Thereare signs, too, that Mueller is even thinking through how presidential pardons might shape his case.

5) Bob Mueller is after federal crimes, not political problems. It’s important to understand that the task before3/4

Mueller’s team of FBI agents and prosecutors isn’t to investigate and make public the full truth of the 2016 election.They have a much more narrow task: To determine whether there are definable criminal violations that amount tofederal felonies or misdemeanors and that can be proven in a courtroom beyond a reasonable doubt based uponthe federal government’s standard rules of evidence and criminal procedure.

Sally Q. Yates—the acting attorney general fired by President Trump for refusing to implement the so-called Muslimban—has argued since leaving office that Mueller’s standard should not be the nation’s only test of what happenedin 2016. There are any number of behaviors and actions that might fall short of a definable, provable felony that we,as a democratic society and a sovereign nation that eschews foreign involvement in our politics, might find troublingbehavior in our commander-in-chief and the leader of one branch of government. But it’s not entirely clear right nowhow the country might see such behavior or act upon it.

How, if Mueller uncovers such behavior, it remains an open question how he might convey this information to thepublic and political process. He might write a formal report, akin to what Ken Starr did during his probe into theMonica Lewinsky affair during the Clinton years or what the 9/11 Commission did following its investigation, and turnthat over to the Justice Department to present to Congress. Or he might not. When Mueller, working in privatepractice after his stint as FBI director, was tasked with investigating the NFL’s handling of the Ray Rice domesticviolence case, he defined his mission as narrowly as possible—examining only the NFL’s handling of a videoshowing the original assault, rather than getting into the larger questions of, say, whether the League coddlesabusers.

This latter category of “political problems” ultimately ends up being the purview of Congress—and it will be almostinseparable from the conversation of whatever criminal charges and information stems from Mueller’s investigation.At each stage, we will see debates in the media and political circles: Are there political high crimes andmisdemeanors that warrant action via presidential impeachment? Unfortunately, the Capitol Hill investigations havehad a difficult road this year, and there seems little appetite for bipartisan action and a forthright debate about the2016 election. The House investigation by the Intelligence Committee was quickly undermined by bizarre behaviorby chair Devin Nunes and now even the Senate investigation, which at least kept up the appearance of a bipartisaneffort, appears to be faltering.

Which is a long roundabout way of saying: Monday’s charges are only the beginning of what’s sure to be a complexand deeply partisan process. And, if this weekend’s release of half-century-old files related to JFK’s assassination isany guide, we, as a country, may never feel like we fully understand what transpired in 2016.

This post has been updated to reflect that the Mueller team's first charges were brought against Paul Manafort andRick Gates.

Garrett M. Graff (@vermontgmg) is a contributing editor for WIRED and the author of The Threat Matrix: InsideRobert Mueller's FBI. He can be reached at garrett.graff@gmail.com.

4/4