Far from “Thin,” Evidence of Manafort’s Witness Tampering Likely Meets Necessary Standard

How strong is the evidence that Paul Manafort tampered with witnesses in his criminal case, as Special Counsel Robert Mueller now alleges in his motion to revoke Manafort’s bail or modify his conditions of release? Paul Rosenzweig at Lawfare claims that the evidence is “thin,” and on the basis of that conclusion engages in a bit of “speculation” (his word) that Mueller is feeling “pressure” from President Donald Trump, Deputy Attorney General Rod Rosenstein, or the public to move more quickly, and is therefore seeking to “ramp up the pressure” on Manafort in a seemingly desperate bid to get him to cooperate.

We disagree. First, in our view, Rosenzweig mis-analyzes the available facts and assesses them against the wrong legal standard. When all of the evidence is considered together, rather than piecemeal, it is difficult to avoid the conclusion that Manafort sought to persuade witnesses in his case to testify falsely. It is frankly naïve to think otherwise. Second, regardless of how one ultimately views the strength of the tampering evidence, the suggestion that Mueller could be panicking is completely unwarranted. Any responsible prosecutor would bring this kind of evidence of tampering to the court’s attention in precisely the manner that Mueller has, regardless of the circumstances, in order to dissuade Manafort from additional attempts to obstruct justice. The fact that Mueller has brought this motion says absolutely nothing about where things stand in his larger investigation.

Although Rosenzweig does not specifically identify the applicable legal standard, he suggests it is high: “[T]hey are a long way from substantial, persuasive evidence that would convince an unbiased trier of fact that witness tampering was attempted.” But in fact, as Mueller explains in his filing to the court, he need only show “probable cause to believe” that Manafort has committed the crime of witness tampering while on bail, the lowest possible standard of proof. Mueller quotes a Second Circuit decision to further clarify that probable cause in this context “requires only a practical probability that the evidence supports a finding that the defendant has committed a crime while on bail.” (emphasis added).  Such a showing then triggers a rebuttable presumption that Manafort should be detained pending trial, meaning that he will be detained unless his lawyers can persuade the judge that there exist conditions of release that will ensure that he will not continue to commit crimes in the future, including the crime of witness tampering.

So, let’s look at the facts. On February 23, a grand jury returned a superseding indictment against Manafort alleging in relevant part that he and his co-conspirators secretly created and funded the so-called “Hapsburg” group, which was comprised of several former European politicians, tasked with lobbying on behalf of Ukraine in the United States. Because Manafort and his cohorts never registered as foreign agents, they were in violation of the Foreign Agents Registration Act (FARA). Manafort, co-defendant Richard Gates, and someone referred to as Person A in Mueller’s filing, communicated with the members of the Hapsburg group through persons D1 and D2, who were themselves principals in a public-relations company. On the same day the superseding indictment was returned and made public, Gates pled guilty and agreed to cooperate with Mueller’s inquiry.

The very next day, a Saturday, Manafort suddenly reached out to D1, with whom he had not spoken for six months. First in a telephone call, Manafort identified himself and told D1 that he wanted to give him a “heads-up” about Hapsburg. D1 immediately ended the call, which lasted only for one minute and 24 seconds, as Rosenzweig noted. Just before or after the call, Manafort sent a message to D1 saying, “This is paul.” Person D1 told federal investigators that he ended the call so quickly with Manafort because “he was concerned about the outreach.”

Two days later, Manafort sent more messages to D1, using an encrypted application on his phone. First he sent a link to an article by Michael Kranz in Business Insider entitled, “Former European leaders struggle to explain themselves after Mueller claims Paul Manafort paid them to lobby for Ukraine.” The article includes the allegation in Manafort’s indictment that Manafort secretly funneled money to members of the Hapsburg group to conduct lobbying in the United States. A minute later, Manafort sent a message saying, “We should talk. I have made clear that they worked in Europe.” The following day, Manafort again tried twice to call D1.

Let’s pause and take stock. Is there any doubt what’s going on here? Key to the FARA allegation is that the members of the Hapsburg group lobbied while in the United States as unregistered foreign agents. Manafort is reaching out to an almost certain witness in the case, who could be an intermediary to other witnesses in the case, to persuade him to falsely say that the lobbying was in Europe. If this were all, it would be enough to satisfy the probable cause standard that Manafort attempted to tamper with witnesses.

But there’s more. The following day, Person A sent a series of texts to D2, using an encrypted messaging application:

“[Person D2], hi! How are you? Hope you are doing fine. ;))”

“My friend P is trying to reach [Person D1] to brief him on what’s going”

“If you have a chance to mention this to [Person D1] – would be great.”

“Basically P wants to give him a quick summary that he says to everybody (which is true) that our friends never lobbied in the US, and the purpose of the program was EU.”

Four hours later, Person A sent the same series of messages to D2 via another encrypted messaging application, adding at the end: “If you have a chance to mention this to [Person D1] – it would be great. It would be good to get them connected to discuss in person. P is his friend.” D2 had not had any recent contact with Person A or Manafort.

Rosenzweig dismisses these communications from Person A to D2 because he says there is “very little evidence” that Person A was acting at Manafort’s direction and communicating the story Manafort wanted told. Really? The close timing of the communications, the similarity of the content of the messages (that the lobbying occurred in Europe and not the United States), Person A’s indication that he was acting for “P” (Paul Manafort), and the fact that Manafort alone stood to gain from the witness tampering efforts all strongly suggest that Manafort and Person A were working together. The notion that Manafort and Person A coincidentally peddled the same cover story at the same time without coordination is hard to believe. A probable cause standard is plainly satisfied here.

And just to nail the point down even further, approximately one month later Person A again sent messages to both D1 and D2. To D1, Person A texted: “Hi. This is [Person A’s first initial]. My friend P is looking for ways to connect to you to pass you several messages. Can we arrange that.” To D2, Person A texted: “Hey. This is [Person A]. My friend P asked me again to help connect him with [Person D1]. Can you help?” These messages just further reinforce the obvious conclusion that Manafort, with the assistance of Person A, repeatedly tried to coach Persons D1 and D2, no doubt with the further hope that they would coach the members of the Hapsburg group, on the false story that the group lobbied only in Europe and not in the US. If this evidence is not convincingly countered by Manafort’s lawyers, it should be enough to trigger the rebuttable presumption that Manafort should be detained pending trial.

But regardless of how one assesses the strength of this evidence, it provides no basis whatsoever to speculate that Mueller has his back up against the wall or is deploying this evidence in order to pressure Manafort to cooperate. First, Rosenzweig’s speculation is self-refuting. If the evidence of witness tampering is “thin,” then the tactic that Rosenzweig ascribes to Mueller will likely backfire, as Mueller would well know. If Rosenzweig is right, the judge will scoff at Mueller’s motion and send him packing, further emboldening Manafort in his fight.

Second, Rosenzweig seems to presume that Mueller’s decision to bring this evidence forward is akin to a charging decision, a step to be taken only if the evidence is sufficiently strong. But it’s not like that at all. The case is already charged, and the question now is whether Manafort should be detained pending trial because of his efforts to interfere with witnesses. Mueller had a responsibility to the integrity of the case and to the court to bring this evidence forward once it was developed. What are the alternatives? Sit on it? Call Manafort’s lawyers and tell them to convey to their client that he needs to cut it out? No. The only reasonable thing the prosecution could do in this situation is to make the evidence available to the court to allow the judge to decide, which has the added benefit of alerting other potential witnesses in the case to Manafort’s antics, allowing them to take proactive steps to avoid his communications. Given that Mueller little choice but to bring this evidence forward, the fact that he did so tells us nothing about his state of mind or the posture of the larger investigation.

In our view, the evidence of tampering as it now stands more than meets the probable cause standard, triggering the rebuttable presumption. Of course, it will be up to the judge to make this determination and to decide if, even assuming the presumption applies, Manafort should be detained or subjected to more restrictive conditions of release.

Photo by Mark Wilson/Getty Images


About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).

Renato Mariotti

Formerly a Federal Prosecutor in the Securities and Commodities Fraud Section of the United States Attorney's Office for the Northern District of Illinois Follow him on Twitter (@renato_mariotti).