OA118: Indictment Monday & the View From Yodel Mountain

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

[0:00:02] Is that why you hit your wife? Withdrawn. Is that why you drink and pop pills? Withdrawn. Are you a virgin? Withdrawn. [0:00:19] It says here you robbed a hospital. Why'd you do that? Yeah, I'm not guilty. That's not what the other lawyer said. [0:00:30] Actually, I was going to stay in my office tonight and work on my law blog. Of course, the Bob Loblaw Law Blog. Wow. You, sir, are a mouthful. [0:00:45] The jury is instructed to disregard its own testimony. Your Honor, the prosecution rests. [0:00:54] Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC, for entertainment purposes, is not intended as legal advice, and does not form an attorney-client relationship. Don't take legal advice from a podcast.

0:01:18 Thomas: Hello, and welcome to Opening Arguments. This is episode 118. I'm your host, Thomas Smith. That over there is your other host, Andrew

[0:01:24] Torres, Esquire. How are you doing, Andrew? I am warming up my yodel pipes. Yeah, yeah.

0:01:31 Thomas: We spent a good, we did a good 20 minute yodel warmup. We did some vocal exercises, you know, because we want to make sure to be able to capture the...

[0:01:41] Most people don't know you need to gargle salt water. Yeah, yeah. The yodeling is all Andrew, actually. It's entirely Andrew. That's the whole, that audio file. I can't wait. Let's talk about it. Um but first Law'd Awful Movies number 12 is

[0:01:58] out, uh, we did a little movie called Body of Evidence, and uh, there's a pun in there I don't I you might catch it watch the movie you might catch it and please

[0:02:10] please, don't watch the movie. We didn't know, I didn't know at least, that it was, is a pretty pornographic movie so that was that was interesting so uh we had mark from thank god I'm Atheist and How to Heretic on. He was fantastic. He provided a much-needed perspective on this for

[0:02:29] us. Several, several important perspectives. So that was really fun. That's going to be up for Fine Patrons.

0:02:37 Thomas: Guarantee. And check it out. It was really funny. I enjoyed that one a lot. Ridiculous movie. Absolutely ridiculous movie. Yeah. But you'll see, you know, how they they did on legal

[0:02:49] questions. Maybe not as bad as you might think. So there you go, a little teaser. And if you listen to that, there are lessons to be drawn from that movie that we will reference on today's show. Oh, okay. I can't wait. So with that said, start your yodeling, everybody. Yodelers, start your engines, because we've got an all-yodeling show for you today. Today. And just a note, we are going to cover, it's all yodels today, and we will cover the trans military ban news on Tuesday's show. So Andrew wants to have time to do a big in-depth one on that. And there's just so much in these indictments that it needs to be its own yodeling special. So that's our agenda. With that said, Andrew, I guess we'd better get to it, huh?

[0:03:38] Because people have got to know whether or not their president is a crook. So, you're not aware of any context during the course of the election? How many times do I have to answer this question? Can you just, Russia is a ruse. I know you have to get up and ask a question, so important. Russia is a ruse. Well, I'm not a crook. All right.

0:03:57 Andrew: So, so what do we know? We are recording this early, the news has just broken. We have had Indictment Monday,

[0:04:03] and there are, uh, that was, that was trending on, yeah, that's a real, that's a real hashtag, Indictment Monday. So, uh, what was, what was released, what was released was the statement of offense and plea bargain by former Trump campaign official George Papadopoulos. And I will mention again, as the, as the resident old guy on this

[0:04:28] on the show, I had to Google National Lampoon's Vegas Vacation because I thought for sure that was the fake ID name that Rusty uses when he's in the casino. Um, it's actually, it's actually Nick

[0:04:41] Papa Georgio, but you know, uh, George Papadopoulos, which, uh, I have now learned how to spell. I didn't know, I, that's not, uh, you know, a high profile guy.

0:04:53 Thomas: Right, like he was a bit of a surprise to everybody, wasn't he, or if not a surprise, like everyone was like, uh, who is this?

[0:05:00] Yeah, and, and let's talk about at that, because we're gonna, we're gonna start off with his, with his plea agreement. The Trump

0:05:08 Andrew: Administration's play here with Papadopoulos is going to be to minimize his role in the campaign. So Press Secretary Sarah Huckabee Sanders today, this morning, called him a quote, volunteer, which is, you know, which is technically correct, right? He was not paid, but Paul Manafort was not paid when he was campaign manager, right? And you would not, you know, call him a volunteer. I am going to link in the show notes, there's already a PolitiFact article up. They don't have the liometer, because as they say, determining how important Papadopoulos was on the Trump team is open to interpretation. So we won't put this argument to the truth -o-meter, but it goes through the fact that this guy was not licking envelopes in a, you know, Trump campaign office in Boise, I don't write like Papadopoulos

[0:05:58] was somebody who was part of a conservative think tank. That was the Hudson Institute. He moved to London. And in March of 2016, so still during the primaries, Donald Trump revealed five advisors who were part of his foreign policy team. And those five advisors were

[0:06:24] Keith Kellogg, Carter Page, George Papadopoulos, Waleed Ferris, and Joseph Schmitz.

0:06:30 Thomas: And he was a big enough profile, you know, a big enough cog in the wheel to handle the collusion division.

[0:06:36] So they gave him that responsibility, right? Yep, that's exactly right. So he

0:06:43 Andrew: Was an advisor. And look, we're going to figure out some of his role as we go through the statement of the offense that he signed. So these are, unlike the indictments, which we're going to talk about as well, these are facts to which Papadopoulos has admitted under

[0:07:02] oath and signed a statement. Because he did a plea bargain. Yes, exactly. So that's the first thing. The second thing that came out was an indictment against former Trump campaign manager, Paul Manafort, and his protege, lackey, whatever you want to call him, Rick Gates. So, and we're going to go through all that. I have not, you will notice that the how to read an indictment is going to be pretty similar

[0:07:27] to my how to read a complaint, but it's a little, you know, it's not quite. Yeah, bone up, everyone. That's going to be apparently a skill we'll all need now.

[0:07:37] Sharpen your indictment reading skills. Yeah, right. Well, you know, there are many more to come. So, yeah, in fact, as kind of a preliminary before we get into it, a lot of people have been asking us on Twitter, you know, what does this mean? And the answer to that is,

[0:07:56] at the broadest level, is this is the start of the phase of the investigation where Mueller is preparing the best case he can against Trump.

[0:08:08] Okay, so the investigation, you hold on, you think against Trump himself? You're, you're positive of that already?

0:08:14 Andrew: I, I'm not gonna say, I'm not gonna say positive, I'm gonna say, is, is making the best case he can for

[0:08:20] the biggest case he can. Okay, so you think he's starting there and it'll, yeah, right. So investigation began in January of 2017, it is now, today, Halloween, October 31st, 2017, so it's been more than 10 full months, which, you know, we told you these investigations take a long time. The playbook is still Sarah Huckabee Sanders in her same press conference today, in which she described Georgia Papadopoulos as a, you know, staple puller, said, oh yeah, we think Mueller's going to wrap everything up, you know, in the next couple of days or so, which again is total misdirection.

[0:08:59] I can't call it a lie because I don't know that she's smart enough to know that that. That statement is false. But that statement is false. Nobody who understands this thinks that this is that an indictment against Trump or any, you know, that the investigation is going to conclude shortly. Because this is how you handle a wide ranging conspiracy investigation. And it illustrates as we as we go through

[0:09:24] it today, it's going to illustrate why you move sort of slowly throughout this process.

0:09:30 Andrew: I also want to urge caution. Maybe I'm tempered a little bit by our election law follow up that we did a couple of episodes ago. I don't if you were to just take the facts

[0:09:43] on the ground right now, they're really, really bad. And if we had a Democratic House and a Democratic Senate, you might have the more ambitious members of those bodies pushing for impeachment just based on sort of the atmospherics. But right now, as we'll see, there is not a solid case against Trump to be made from these two documents. OK, there are a lot of solid inferences, and I'm going to tell you sort of where I think they're going. But just based on this, Trump's defense team, I think, would be able to beat these charges and would be able to beat them not only

[0:10:21] in court, but in the court of public opinion. So you want to dive into the meat? Yeah,

0:10:28 Thomas: Yeah. I think that in terms of the court of public opinion with Trump, there's, I mean, it's kind of a weird thing to talk about because what public opinion? I mean, you know, what is it? Half the public is,

[0:10:41] he didn't, he should be impeached, you know, according to half the public. And then according to 37.6 % of people, he's doing great and is a superhero and he's conquering the planet. It. So that's a weird, I was just thinking when you said that, like, what is the standard, you know, public opinion? It's kind of a weird standard, but I see what you mean. And I also think that was an impression I got too, which was, it's going to be pretty easy. Well, who knows how easy, but it should be doable for them to say, oh, well, this was just happening without his knowledge and he's not involved. And I think that, as you said, I mean, we just need to get get democrats in the house and then uh then we can hold them accountable but let's

[0:11:22] get into it. Yep, so let's, let's start off with, uh, with Papadopoulos, uh, what do

0:11:28 Andrew: We have here? We have a campaign official who was arrested in on July 27th, 2017. So I'm going to link the his statement of the offense in the show notes, and here's how you, here's how you play along and read. As with every court document, we turn to the last page first. So let's do that. We turn to page 14, and you will see a paragraph entitled defendant's acceptance. And that says the proceeding statement is a summary made for the purpose of providing the court with a factual basis for my guilty plea to the charge against me. It does not include all of the facts known known to me regarding this offense. I make the statement knowingly and voluntarily, and because I am in fact guilty of the crime charged, no threats have been made to me, nor am I under the influence

[0:12:18] of anything that could impede my ability to understand this statement of the offense fully. And then there's another, there's some more verbiage, there's acknowledgement from his attorney. So is that boilerplate stuff in terms of, like, yeah, yeah, so then we, we go back to page one, so we know Papadopoulos has now pled guilty. What has he pled guilty to? You go back to the caption, and it says violation of 18 USC Section 1001, false statements, and that is the law we, we talked about this before, that says, uh, whoever knowingly falsifies, conceals, or covers up any material fact, or makes any materially false, fictitious, or fraudulent statement of representation to, uh, in connection with any matter within the jurisdiction of the executive, legislative, or judicial branch, shall be fined under the title and imprisoned for not more than five years.

[0:13:08] So that's what he's pled guilty to. And the first question that you should ask is why,

0:13:14 Thomas: Right? Well, I would imagine because they had a good case against him and he's pleading to get some

[0:13:20] sort of deal, right? Yeah, that's exactly right. And in particular, the reason I read the punishment on

0:13:26 Andrew: 18 U.S.C. 1001 is because of all of the offenses that we're going to talk about today, that carries the lowest maximum offense, uh, the lowest fines with it, right? This is a lesser offense. This is the deal that he got was, okay, we will allow you to plead to making a false statement, and that way we're not going to charge you with conspiracy, right? Conspiracy to defraud the United States, which, which carries a 20-year prison term associated with it, right? And from this, I, I would infer, uh, very strongly that Papadopoulos is now actively cooperating with, yeah, there's investigation.

[0:14:10] Right, so what's the extent of that active cooperation? We don't know, and we're not going to know, uh, until all the rest of the dominoes fall. Yeah, so because one of the

[0:14:22] uh, strongest techniques that a prosecutor has is the ability to have documents and testimony, and then when they have subpoenaed witnesses or are voluntarily interviewing witnesses, to then ask that question of the witnesses. Yeah, and if, as a witness, you make a statement that contradicts a document they have in hand, you know, you'll go through, and a good prosecutor be like, yeah, uh, okay, so tell me a little bit more about that, uh-huh. So, so you're absolutely positive, right? I just want to be clear on this, right? You were saying, you know, because if you're not guilty, we want to make sure that, you know, you're cleared in this investigation. You never spoke to George Papadopoulos in any way, right? Yeah. Okay, great. So now what if I were to put in front of you an email from George Papadopoulos with your name on it? How would that change your story, right?

[0:15:12] And, and, and they've got to know that. So that's what, that's why this is an exciting time in

0:15:18 Thomas: Some ways is like they, the people People involved in this have likely have to know that Papadopoulos is cooperating. And so they can't just blow them off in terms of some of these things that they might be able to get away with

[0:15:31] otherwise. Yeah, that is exactly right. And so if you are a prosecutor,

0:15:37 Andrew: This is a time in which you are very, very excited about building your case in an ongoing investigation. Because it's been 10 months of interviewing witnesses, and some have been cooperative. All of them have lied from the beginning, including Papadopoulos. Well, no, no, like that's what happens, right? Like, um, and it's part of, we, we talked about this in, in, uh,

[0:16:02] our analysis of Law'd Awful Movies 12 but one of the reasons why the the default rule as a criminal defense attorney is you don't voluntarily let your client go talk to the police or talk to the investigator or talk to the prosecutor is you don't know what they're going to ask. You may bring them in for a proffer, and a proffer is where you say, okay,

[0:16:27] hypothetically, my client would be willing to plead guilty to X and would testify about Y.

0:16:34 Andrew: And if that were to happen, you know, how, how would you treat my client? But you would never just, you know, allow your client to come in for a wide-ranging interview because Reddit, ask

[0:16:46] me anything here we go ask ama about this collusion and stuff because even where, even when they don't know, right, witnesses are very, very likely to lie when they're in front of a government investigatory body and they know something seems, seems wrong. So, in fact, that's what happened with Papadopoulos. Right. He voluntarily appeared for an interview on January 27th of 2017. And in that interview, he was asked questions about his role in the Trump campaign and what he knew about the Trump campaign's involvement with Russia.

So this is on page nine of the statement of the offense, beginning at paragraph 22, which says, Defendant Papadopoulos, January 27th, agreed to be interviewed by agents from the FBI. The agents informed him that the FBI was investigating the interference by the Russian government in the 2016 presidential election and warned him that he needed to be truthful, and then said, so, you know, you've got to tell us the truth here. And then here are the things that that Papadopoulos said. He told the FBI, it's not like my contact with Russia is messaging me while I'm in April with Trump. I wasn't even on the Trump team. That wasn't even on

0:18:13 Andrew: The radar. I wasn't even in Trump's orbit at this time. This was a year ago. That's before I even got with Trump. Okay. So that was his defense. He said, look, you know that I've had some contact with Russians, which we're going to talk about. His defense was, but that was just coincidence, right? In fact, he said, quote, it was a

[0:18:33] very strange coincidence, end quote, that he was told about the Hillary Clinton emails even before he started working for the Trump campaign. So just one of those things that happens. Yeah, I got told too. I mean, everybody got told by the Russians personally. So that's what he said when he came in. And then, unlike the prosecutor in Body of Evidence, Robert Mueller decided to actually investigate whether those things were true or not. And

[0:19:05] what they found out was that Papadopoulos spoke with a senior campaign supervisor who is referred to in the statement as campaign supervisor with capital letters. Now, I've scrolled all the way back to page three. This is paragraph four. You will notice this, that for the most part, the indictment does not, I called it an indictment, for the most part, this statement does

[0:19:30] not name other campaign officials, right? It describes them. Yeah, I heard they don't like to

0:19:36 Thomas: Use any names besides the people they're actually indicting. Exactly. I assume you're going to tell us the legal reason for that, but maybe just what, to protect the information until they

[0:19:46] want to use it? Yeah, that's exactly right. I should point out that this statement that Papadopoulos

0:19:53 Andrew: Has signed was in all likelihood drafted by Mueller or somebody on his team, one of the prosecutors, with Papadopoulos sitting there. And the idea is that what you do in a document like this is you provide sufficient

[0:20:11] evidence to the court, it's sometimes called an allocution, that the defendant who is pleading guilty is in fact guilty of the crime to which they are pleading. And so with some exceptions, like we've talked about Alford pleas in the death penalty example, but leaving aside those kind of corner cases, our system of justice doesn't permit you to plead guilty to an offense and maintain that you're innocent of that, right? Right. You can't say, "I am 100% innocent of this. I am pleading guilty because I'm afraid to roll the

[0:20:49] dice at trial, but I don't admit, I don't concede. You have to, as a condition of virtually every plea bargain, allocute as to not just "I am guilty of making false statements to the FBI," but as to the complete factual background and the specific false statements that you made. So that's why this statement is out there. You are 100% correct that in those statements, if it's part of a wide-ranging investigation, you don't name the other individuals involved because it's another way of sort of keeping the cards close to your vest when you are interviewing those other suspects who may become part of the conspiracy. It also avoids pinning you down, right? If you've said, you know, you've met with a campaign official and, you know, it turns out that one of those facts is, you know, is a disputed fact, right? Right. Papadopoulos thinks it happened one way, but, you know, the other person, let's say Paul Manafort, thinks it happened the other way. You wouldn't want to have a specific line that said Papadopoulos met with Manafort on January

[0:22:05] 27th, 2017, if it turns out it was Manafort's aid. Right. Yeah. So so so those are the the principal reasons that you would maintain the the anonymity that you see in there. But the leverage is by far the primary reason. So what happened? And I'm not going to go through all these because I would recommend that you go ahead and read it. Now that we've sort of set the background, you can start on page three. Roman numeral two is Timeline of Selected Events. And it

[0:22:36] walks through in pretty plain English, not a lot of legalese.

0:22:42 Andrew: When Papadopoulos was engaged, he was engaged in early March of 2016. And by early March, there was a call on March 6th of 2016. Immediately afterwards, Papadopoulos met and he was living in London at the time. So this goes back to one of the things Beth Kingsley said on our election law. Right. No, there's nothing illegal about the Trump campaign hiring Papadopoulos when he is living in London. But there may be something illegal about

[0:23:13] the things that he, you know, what they hired him to do. Right. So immediately after being hired, all of a sudden Papadopoulos has a contact with a university professor. And that university professor introduces him to a woman who describes herself as Vladimir

[0:23:31] Putin's niece. She's not. She's not Vladimir Putin's niece at all. But they talk via Skype. They communicate via email. And essentially,

[0:23:44] Papadopoulos communicates back to the Trump campaign, hey, Putin really, really wants to meet with you, right? He tells the senior campaign supervisor. And again, this seems pretty clearly that it's going to be Manafort, but I suppose it could be Cory Lewandowski. It's

[0:24:03] a high level guy uh papadopoulos So they wouldn't have named Manafort because they've indicted Manafort, but they wouldn't have named him anyway still. Right. That's because this document, although they were both released on the same day. Yeah. Papadopoulos signed this on October 5th. Gotcha. And the Manafort indictment came down on the 29th, 30th, yesterday. Boy,

[0:24:28] all the days are running together. Oh, so the Manafort one wasn't sealed. I had heard they were both sealed for three weeks, but it sounds like maybe not. The Manafort indictment is dated October 27th of 2017. So that was later. And so Papadopoulos tells this campaign supervisor that he's been talking to Putin's niece and that the topic of their discussion was, quote, to arrange a meeting between us, meaning the Trump campaign, and the Russian leadership to discuss U.S.-Russia ties under President Trump. Campaign supervisor responded that he would, quote, work it through the campaign, but that no commitment should be made at that point and added, great work.

[0:25:11] Okay, but just refresh us, is there a plausible deniability of, you know, like what level of illegal is that? I remember there's the, the, was it the Logan Act? Yeah, that, okay, that is the Logan Act, um, the, the Logan Act is not, is very rarely, yeah, yeah, so that's why I'm

0:25:29 Thomas: Asking, like, could they say at this point, yeah, well, we were just going to discuss what might go on, uh, you

[0:25:35] know, once we're president, once, once we're in power, is that not cool, is that already illegal meeting? So there are, there are kind of multiple layers. Yeah, tell us the crimes. At this point, the, the first we'll see

0:25:48 Andrew: In the, uh, in the Manafort indictment is that you have, when you were dealing with or on behalf of a foreign government, you have recordation and disclosure requirements, right? So in other words, if you are working to the advantage of a foreign government, there is the Foreign Agent Registration Act that requires you to make a public disclosure of this. So the first potential crime that you see that is connected to the Papadopoulos statement here is

[0:26:19] the failure to to disclose that. Right. So, so once he started arranging this meeting, he

0:26:26 Thomas: Was, we just, the law assumes kind of, he's working on behalf of the Russians, like he's working to their

[0:26:32] benefit. And so again, that's a, yeah, that's a, that's a triable issue for the court. Okay. Right. So,

0:26:38 Andrew: So the, the first issue is, you know, can, if, if this is a permissible meeting, Is it a permissible meeting that you can do in private? And it's pretty clear that you can't do this kind of thing in private, that you have to publicly disclose before you can meet with Vladimir Putin's niece and talk about the policy changes you intend to implement as president.

[0:27:03] yeah and and for good reason yeah um and then and then whether you can do it at all is in fact a a Logan Act question. Okay. And the fact that, you know, I mean, I, I, I said recently that, you know, there are not a lot of prosecutions under the Logan, all right, that shouldn't be a deterrent for, right, there are not a lot of presidential candidates who have colluded with our nation's enemies either. So that's

[0:27:29] the background. And then the continuing discussions here, which go through April into May, in which Papadopoulos says that the Russian Ministry of Foreign

[0:27:42] Affairs is interested in meeting with the campaign. I have just talked to my colleagues from the Ministry of Foreign Affairs, MFA. They're open for cooperations. One of the options is to make a meeting for you at the North America desk if you are in Moscow. And that, and, and you're going to see, right, I read that, because right as we get into the weeds, Trump's lawyers, I mean, I I would say this, are going to say that this guy was just a. You know, a

[0:28:09] rogue loon. And, you know, I mean, he thought Donald Trump was going to travel to Moscow in May of 2016. Are you kidding me? And the further evidence of that is on page eight.

0:28:22 Andrew: It's footnote two. This is after yet another. This is a late May email from Papadopoulos to the campaign official saying Russia has been eager to meet Mr. Mr. Trump for quite some time and have been reaching out to me to discuss. And the footnote says the government notes that the official that is the campaign official, likely Manafort forwarded defendant Papadopoulos is email to another campaign official without including defendant Papadopoulos and stated, let's discuss. We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign. So as not to send any signal, um,

[0:29:01] I, that's a bad fact. Uh, but but you can see how it, you can see how that cuts both ways, right? That what the, what the Trump administration is going to say is, yeah, there was never any intent. When we meant low level, we meant, we didn't just mean a fall guy, right? I mean, that's what the government is going to

[0:29:19] say, like, yeah, you know, you wanted to send a red shirt out. Yeah, so find us a patsy, too. Right. Yeah, yeah, the only thing would be better would be if the email said find us a patsy. Um, but but the Trump administration is going to say no, no, no, no, look, like, we didn't want to make any policy commitments, uh, with respect to that. That's why. And this guy wanted Trump to fly out to Moscow, and Trump didn't fly out to Moscow, so this whole shows, you know, that, yeah,

[0:29:43] I could see that argument, nothing's there, right? And then, but at the same time, I mean, wouldn't, if

0:29:50 Thomas: If that version of events was true, wouldn't the email back be like, dude, what are you doing, no, why are you trying to do this, you're not, pay, you're fired, why are you doing this, that would be, I would think, not, hey, let's discuss, uh, maybe we should find a different person to go besides actual Donald Trump, right? And

0:30:09 Andrew: And I'm going to give you two responses to that. Uh, the first one is is funnier. Remember that this is the legal team that seriously contended in open hearings before Congress that Donald Trump leaning across the

[0:30:22] table at Jim Comey going, "Boy, I'd sure hate it if you lost your job," was not a threat. So, you know, their threshold for, you know, being able to make statements that are difficult to do with a straight face is pretty high. And then the second is a really great email exchange

[0:30:41] that I don't know how you're going to get around this. This paragraph 21A, this is June 19th, 2016, right? Right. So this is after Trump has the nomination. This is shortly before it's like a month before the convention. Right. And it says after several email and Skype conversations with the Russian MFA connection, defendant Papadopoulos emailed the high ranking campaign official with the subject line, new message from Russia. And that message is the Russian Ministry of Foreign Affairs messaged and said that if Mr. Mr. Trump is unable to make it to Russia if a campaign rep, parenthesis, me or someone else, can make it for meetings. I am willing to make the trip off the record if it's in the interest of Mr. Trump and the campaign to meet some specific people.

After several weeks of further communications regarding a potential off -the-record meeting with Russian officials, on or about August 15th, 2016, the campaign supervisor told defendant Papadopoulos that, quote, I would encourage you and another foreign policy advisor to the campaign to, quote, make the trip if it is feasible, end of quote. So we can start nailing down who that is, right? Because it says another foreign policy advisor to the campaign. Well, I read the only five foreign policy advisors that the Donald Trump campaign has had, right? Keith Kellogg, Carter Page, George Papadopoulos, Waleed Ferris, and Joseph Schmitz. So one of of those remaining four people has to be

0:32:08 Andrew: The subject line of of this email, right? And

[0:32:11] I don't see, right, you can't making the, uh, we didn't really mean to is going to be awfully difficult when you say no, please, I would encourage you to make the trip if it's feasible, and then that trip never took place. Uh, but so you know, I guess you might have the same defense as the, you know, Russian intel on Hillary Clinton, we never got the stuff, so you know, just

[0:32:35] just conspiring to get, I mean, who, who, who charges like there's some law against that? Right? Right. Oh, yeah, so that's the Papadopoulos statement, that's the significance of it, it is an important link in the chain, and and I would say anybody who's ever emailed this guy in the Trump camp, so begin with the assumption that what we. We think is true

[0:33:00] is true. Right. Which is to say that there were deliberate, coordinated efforts between Donald Trump by and through his surrogates with the Russian government with respect to the U.S. election. Right. Like that's that's one peak of Yodel Mountain.

[0:33:18] Right. Right. If that is the case, then anybody in the Trump campaign who's ever gotten an email from Papadopoulos is sweating profusely right now. Yeah.

0:33:31 Andrew: Because you now know this guy has rolled on on on you. He is he's cooperating

[0:33:38] with the investigation and and the things that he has admitted to are crimes.

0:33:45 Andrew: And the only thing that can save the Trump administration at this point is, you know,

[0:33:51] plausible deniability. Well, yeah, just Paul Ryan not giving.

[0:33:56] Well, yes. Well, I mean, and that goes back to, you know, the sort of the question to the to the 37 percent at some point. I think my goal, and this is just political punditry, so weigh it however you want. I think my goal is not to get a Robert M. Price, true believing Trump support, right? Is not to get that person to change their mind, but is to get that person at least to be

[0:34:22] embarrassed about it, right?

0:34:24 Andrew: I'm 100% serious about this. One of the things I looked up that I was sort of thinking by comparison was the the 2010 Senate race, which, you know, that was the rise of the Tea Party. That was a wipe out for Democrats everywhere. But it gave us

[0:34:43] candidates like Christine O'Donnell. I am not a witch in Delaware. She got fifty three point one percent of the vote in the primary. And then in the general election, she got 40 percent of the vote in Delaware. Right. Pretty blue

[0:35:02] state. Yeah. After her campaign, her entire campaign in the general election was was refuting allegations from Bill Maher that she

[0:35:14] was a witch. So the partisan political threshold for embarrassment is pretty high, right? And I I would just say, you know, that that that's that's my goal in that situation is to is to, if you no longer have, right, true believers are true believers, but if you can't go into a primary and say, "I'm a Trump supporting Republican," if you have to go in and do the dog whistle to the trump Trump supporters, and but kind of publicly be like, well, you know, I'm keeping an open mind, like, blah, blah, blah. That's that's probably enough to start levering the rock a little bit with with respect to, you know, that that remaining kind of 12 percent of the electorate that is kind of being locked up right now due to partisan politics, right? Right. And that I'm saying that's the gap between the 37 percent who approve of Donald Trump and the, you know, 50 percent who think you should be impeached. Yeah.

[0:36:14] You know, this is a weird, it's a weird political system. Well, I think the

0:36:20 Thomas: Key, and again, OK, we're we're punditry right now, is I think if we start to win special elections and then again, if we win actual elections, that will be, I don't think we'll convert the diehard Trump supporters, but we might tell mainstream Republicans, oh, shoot, this guy is toxic.

[0:36:39] So let's distance ourselves.

0:36:43 Thomas: I know that might be a pipe dream, but I feel like that's how, I feel like until there's some electoral consequences, no mainstream Republican is really going to care. You know, the only two who have spoken out really are ones that, you know, these Republicans are like, well, I'm either going to be dead in a week or I'm quitting or I'm, you know, it's just people like, You know, with a suicide pact so that there's no consequences to them, I guess. Those are the only people who are willing to say anything about Trump. So I think that's the key. But who knows?

[0:37:14] Maybe if it gets worse. I want to endorse that 100%. Next Tuesday in

0:37:21 Andrew: The C segment, we're going to talk about Trump's legal strategy with respect to this. And the people who are aiding and abetting in that strategy will depress you. And it is 100% consistent with what you've said. So I agree

[0:37:40] with that. So that's Papadopoulos. Want to talk about Manafort and Gates? Yeah, time for some Manafort action. Here we go. Okay, now different strategy here with Manafort and Gates because Paul Manafort was the campaign advisor,

[0:37:53] right? Like Donald Trump can't pretend that he was an envelope stuffer. Rick Gates is his longstanding flunky.

0:37:59 Andrew: These folks are not cooperating. And so that is why what has been handed down is a grand jury indictment by the United States District Court for the District of Columbia. A little bit. We've talked about grand juries before, but what happens, the reason you impanel a grand jury, if you are Mueller in this case, is that the grand jury has independent subpoena power. You don't have to impanel a grand jury to indict somebody. But by doing so, you have now kind of presumably

[0:38:30] crossed the threshold that says, now, hey, look, like a grand jury said that there's enough evidence here to indict this person. Uh, defense attorneys, you, you undoubtedly have heard the phrase "a grand jury will indict a ham sandwich." Um, the, the reason for that is that the grand

[0:38:49] jury process is not an adversarial. The ham sandwich was just a volunteer in the campaign, it had no duties, you know? Right, but it had Russian dressing on it, so, um, but yeah, no, the I mean, the reason for that is that that the grand jury is, it's not an adversarial process, right? So the subject does not necessarily know, is not informed, does not get the right to cross-examine witnesses until the indictment comes down, is not informed until the indictment comes down, does not get the opportunity to cross-examine witnesses until you go to trial. Yet another point of difference between real life and law-awful movies, number 12. Here, the argument

[0:39:31] is, well, an awful lot of what this indictment is about is stuff Manafort did before we even knew him. And we're going to go through, there are 12 counts in this indictment.

[0:39:44] Some can be lumped together. So we don't have to go through all 12 individually. And in fact, the complaint, I called it a complaint, but the indictment, which

[0:39:57] reads like a complaint, lumps them together. So if you turn to page 23, you see count one is conspiracy against the United States. This is 18 U.S.C. 371, and this is the statute we discussed in Opening Arguments episode number 86. This

[0:40:16] is kind of the main top line crime that it is a criminal offense to knowingly and intentionally conspire to defraud

[0:40:29] or commit an offense against the United States by impeding, impairing, obstructing and defeating the lawful governmental functions of a government agency. So that's the conspiracy charge. Count two is the one that draws on the bulk of the facts and has the greatest potential to be, I think, sort of thrown up as a smokescreen

[0:41:07] here. Endeavors to hide that activity, uh, is, uh, guilty of a fine of not more than $500,000 or twice the value of the property involved in the transaction or imprisonment for not more than 20 years or both. So pretty serious charge of money laundering. Here's what Manafort did according to, according to this indictment. And I'm going back again, the way you read, you read this indictment, the way you read a complaint, which is you scroll down to the counts and then you go back And look to see where the facts fit into the allegations in the council. So this stems from Manafort's activity from 2006 to 2016. So up to and including while he was involved with the campaign. And it is approximately $75 million in total funds that Manafort has moved around, including over $19 million that he's done this scheme. And here's what the scheme is. You register an offshore company. And in this case, the offshore companies, they're all listed in this indictment. The offshore companies are in Cyprus, St. Vincent, and the Grenadines, and the Seychelles Islands. Okay. And Cyprus is well known as a tax haven.

[0:42:33] Perhaps that's where- No Cayman Islands. Okay. Yeah, no Cayman Islands.

0:42:38 Andrew: Cayman Islands, I think their reputation took a hit with the firms. But Cyprus is basically the real Cayman

[0:42:44] Islands. Okay. All right.

0:42:46 Andrew: The Cayman Islands are still the real Cayman Islands. So you create an offshore company in jurisdictions with rather lax laws, rather lax banking requirements, recordation requirements. You then put your illegally gained foreign money in that offshore company. Sorry,

[0:43:06] hold on. What is this illegally gained? Where is that coming from? Yeah, Manafort worked directly for the government of Ukraine. In particular, he worked for a political party in Ukraine. I'm saying the Ukraine. I believe the proper word is just Ukraine, which was called the Party of Regions. And the Party of Regions is a minority party in Ukraine that is involved in lobbying the Ukrainian government for closer ties with Russia,

[0:43:43] the country that invaded. Right, right. But is that de facto illegal to do so? Or is

0:43:49 Thomas: He not allowed to work for that party? Because you said illegal money he made. I just want to know, is

[0:43:55] There any, he can't just, there's no legal way he could be doing that? So there is, and and we're

0:44:02 Andrew: Going to talk about it. There is a potentially legal way in which he can represent foreign governments, uh, so long as, as we alluded to in in the last segment, uh, so long as that is disclosed.

[0:44:14] What, what makes this illegal is, and and and we haven't even gotten to the banking schemes. I'm guessing. Yeah, yeah, yeah.

0:44:21 Andrew: But what, what makes this illegal, what makes this a very easy case of illegality is two things. Number Number one, he didn't tell anybody. And number two, he didn't report the income on his taxes. So those are bad things to do. So you create the offshore company. You funnel your money that needs laundering into that offshore company's bank accounts. Then you use that offshore company to buy residential property in the United States. Then what you do is take out a loan against that property with yourself as the beneficiary, and you use the proceeds from renting the property to pay back the loan.

[0:45:05] So clean, in other words. Yeah, you get, you get the full value, it's, it's a completely, and then, and there are taking out the loan, you know, repaying loans against real estate, right? Like, may have, oh,

[0:45:17] Tax deductions, right? May, may have preferential tax treatment on top of everything else. So that's how you get the money from tainted sources into the United States, into your hands without ever having to touch it. And Manafort did this with seven separate loans on three different properties in New York. And these are home equity loans, right? So they do get preferential tax treatment under ordinary conditions. Again, can't speak to Paul Manafort.

0:45:48 Thomas: That's good. We want to make sure we're fostering this kind of activity with tax policy. Make sure that when

[0:45:54] someone's laundering money, they get a nice incentive to do so. So what level of illegal is this? Is this one of those things that like, oh, he technically followed letters of law in terms of the money? I know about the disclosing and all that, but in terms of laundering the money, or is it a spirit of the law thing?

[0:46:12] Or is there some law that says, no, you can't do effectively this? Yeah. The law that says you can't do effectively

0:46:18 Andrew: This is 18 USC 1956. And that is to knowingly conduct or attempt to conduct a financial transaction that to conceal or disguise the nature, location, source, ownership, or control of the proceeds of specified unlawful activity. Gotcha. So and unlawful activity can include intending not to pay the taxes on it. Right. So in other words, you don't

[0:46:47] have to have the predicate fact of he's colluding with a foreign government. This could be, you know, if he were represent, you know, with an enemy government. Right. Like if he were representing a friendly name, you know, it was France. Right. But nevertheless, he doesn't want to pay taxes on all of the French consulting he's got. So he establishes a company in the Seychelles Islands and puts all the French payments there, has that Seychelles Islands company buy real estate, loan the money back to him, and then pay back the proceeds.

[0:47:18] Right, right, right. That would still be a violation. So he had – this one you said was, what, $12 million? And then he had

0:47:25 Thomas: Other schemes that laundered $75 million in total. Yeah, 19.

0:47:31 Andrew: Those three, those seven loans on the three properties in New York that are listed in this indictment combined to

[0:47:37] $19.2 million. And then the remaining $55.5 million comes from adding together the sums of all of the total transactions that are going through his bank accounts. And the indictment is very, very detailed with respect to, I think where you're getting the $12 million from is on page 7, paragraph 16, is a list of $12 million in payments from these offshore bank accounts to various vendors for personal items, right? And to home automation lighting in a home entertainment company in Florida, to an antique rug store in Alexandria, Virginia. He bought $934 $934,000 worth of antique rugs, which-

[0:48:27] Is that more than you have in your house? I don't get it. That's, yeah. Yeah. So, but what, I mean, what does that

0:48:33 Thomas: Mean? Is that illegal to do, or is it just, he's got all the, he's flushed with illegal cash and he's

[0:48:39] spending it in this way? What this is showing you is that the, because these payments came directly out of the Cyprus bank accounts, right? So it goes to show that he is

0:48:51 Andrew: The beneficiary of this bank account, because presumably these are numbered bank accounts in Cyprus. And unlike the movie, The Firm, you can't just go in and like type in, you know, show who holds like X unnumbered bank, right? The whole point of having a numbered secret bank account is that it doesn't

0:49:10 Thomas: List your name on it. This is another reason why the investigation takes time is just piecing all this different crap together.

[0:49:16] It's just all these detailed transactions and all that. So, yeah, there are pages and pages of these,

0:49:23 Andrew: You know, with specific transaction dates and of, you know, $7,000 for this one,

[0:49:29] $8,000 for this one, $42,000 for this one. So, yes, it shows that these accounts are being used to furnish items for

[0:49:42] Manafort's personal benefit. Yeah. So here's my question about all this. We got to talk

0:49:48 Thomas: About pardons and how that's going to interact with this, because why in the world do you think Manafort would not have pled or worked with that? Because this seems as damning as it gets in terms of evidence, right? Right. So is he thinking do you think he's counting on a pardon? Do you think there's some other reason he he wouldn't have pled or cooperated?

0:50:07 Andrew: Yeah, I think that's right. I think he is. Because look, if he had pled or cooperated, then Trump knows he's rolled on him and he will never get a pardon. And I think that he is making a high stakes game here of assuming that his best chance is to fight this, presumably to potentially flee the jurisdiction. My understanding is that the bail that was set today for Manafort in conjunction with this indictment was $10 million. That is going to – and that it cannot be furnished from the proceeds of any of the subject properties, which is – who knows, right?

I mean, I don't know how much Manafort is going to be able to come up with. I mean, I, it would, it would surprise me if he's not able to, to come up with a sufficient bond. Presumably he's going to have to surrender his passport as a condition of, of the pre-release. And, uh, and obviously, you know, the, the government has a compelling interest in ensuring that he remains within the United States, uh, because it's, it's, it's obvious that he could go to Ukraine and disappear. Yeah. I mean, he's he's bought himself government officials there. So but that's that's how I read that is the fact that that Manafort is fighting

0:51:27 Andrew: Is his signal to Trump of, "Hey, look, I'm going to continue to fight this. So you're going to have to pardon me." And and we will talk about that. It's another sneak preview for next. Oh, OK. Next Tuesday's C segment where we talk about some

[0:51:44] Insight we have into Trump's legal strategy. Strategy. Okay, good. Well, then I won't, uh, press you

0:51:50 Thomas: Anymore on that today because I, these are all, but here's a question I want to ask. As the facts are now, what is Manafort facing? And sorry if you already said this, but what's, because there's a lot of counts, right? So let's say he's guilty of, I don't know, some or all of them, what's he facing? Just a ton of prison time? Is

[0:52:08] He facing fines? What's he, what would he, yeah, he's he's facing, he's facing fines and a ton of prison. Okay, so a lot, so these are these are significant charges, they aren't slaps on wrists or anything, they

0:52:21 Andrew: Are, they are very, very significant charges. I mean, just as a high-level summary of the remaining charges, counts three to nine are violations of record-keeping statutes. Okay. And they relate to failure, failure to disclose financial interests in foreign bank accounts, which have a value of more than

[0:52:40] $10,000. So that doesn't sound like, to me, that doesn't sound like that serious of a thing, but is that a very serious crime involving? That individually is not a super serious thing. Let me pull up the... Lest anyone think it's not as though I have a bunch of foreign accounts I'm not disclosing. I just mean,

0:52:58 Thomas: I wouldn't think that's like the death penalty or anything.

[0:53:04] I Yeah, that is a much less serious statute, but nevertheless, under

0:53:10 Andrew: 31 U.S.C. Section 5322A, if you are willfully guilty of violating the chapter, which includes the section, which is 5314 that is charged here, shall be fined not more than $250,000 or imprisoned not more than five years or both. And there are four counts of 5314 that apply to Manafort. There is the tax fraud that carries 20 years with it. And then there's the conspiracy to

[0:53:42] defraud the United States that carries 20 years with it. So yeah, he faces a hell of a lot of prison time as a function of this indictment. And it's a pretty high stakes wager that he's making here. He's hoping that

[0:54:00] Trump can ride it out and he will get his pardon. And I think, I mean, I don't know that there may be, this is rank speculation, so maybe I shouldn't even engage in it. But it certainly may be the case. Right. As my friends who are prosecutors, you have to balance between your desire to get somebody to flip

[0:54:26] in furtherance of the top line guy you want and also how much you're willing to give somebody who has flagrantly violated the law. Right. And and and that disparity may be too great here. Right. Manafort may have told Mueller, "Yeah, I'll flip on Trump if you give me a complete walk, right? If you give me total immunity." And Mueller may be taking the position as of right now, "No, you know what, we're not going to do that." So I'm not going to let somebody launder tens of millions of dollars from a hostile foreign

[0:55:00] government and get a complete walk free. Yeah, yeah, yeah, makes sense. Well, we'll talk more about that on Tuesday.

0:55:06 Thomas: I've got some questions, but I will save them for them. And, uh, thanks for breaking that down, Andrew. Wow, he seems, uh, guilty as hell. Yeah. And so we need to make sure there is some sort of political cost for this, like some sort of, you know, I mean, hiring this guy to be your campaign

[0:55:25] manager. Yeah, it's absurd. But anyway, you were going to say something. Yep. Oh, and I was just going to add that the

0:55:31 Andrew: Rest that I was going, going to finish out the counts 10, 11, and 12 in the indictment. Counts 10 and 11 are the violations of the Foreign Agent Registration Act that we alluded to previously, which is he represented and lobbied the US government on behalf of Ukraine and the party of regions and failed to comply with the disclosure requirements, which are extensive, which require you to list, to provide copies of all of your agreements, to list every statement, to list all the contributions That they make to you to provide a detailed statement of every activity that you've undertaken on their behalf. Right. And again, all of that falls within the rubric of, you know, if U.S. nationals are going to represent foreign governments, we want them to disclose that. And he's plainly failed to disclose that. Right. And so those are serious. Again, they're not a lot of far act convictions on the books, but that's because most people don't engage in

[0:56:34] this kind of behavior.

0:56:35 Andrew: And then count 12 is the false statements that we talked about for Papadopoulos. So there you go. That's your quick, I mean, somehow we devoted the whole show to it and I'm still scrambling to get in

[0:56:48] everything about this. Well, I'm sure this won't be the last we hear about this. I'm sure there'll be more to it, but yeah. Wow. All right. Well, yodel away, everybody. Yodel away. And

0:57:00 Thomas: With that said, we'd better get to our co-favorite segment of the week. And that is thanking our top patrons,

[0:57:07] our Hall of Famers. Yeah. Thank you to Heather Loveridge, Sakashite Fukasumi. No, no special

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[0:59:07] a Law'd Awful Movies on us. I hope you like it. I think it was really funny. Mark was great. Andrew was great. It was fun. So check that out. Check out the bonus content Andrew did. We hope you're enjoying all that bonus stuff.

[0:59:19] And with that said, let's get to the bar exam. All right. Question number 48. We are just three questions away counting this one from my having to read you questions from a new book. So all right.

0:59:33 Andrew: Right. And apropos of today's discussion, we have several persons together stole a painting from an art museum. One of them, who was the driver, was caught during the commission of another crime. He told the police, "I didn't even get any money from that art museum. It all went to the first guy and the second guy." When the first guy and the second guy go on trial for the theft of the art painting, is the driver's statement admissible in

[0:59:58] court? Court, so short, sweet, to the point. Can the prosecutor introduce the statement of, "I don't even get the money, it all went to the first guy and the second," answers A, yes, as an admission

[1:00:10] by a party opponent, B, yes, as a statement against the interests of the other defendants, C, no, because it was made while in custody and is therefore unreliable, or D, no, because the statement was not made in the course of or in furtherance of the conspiracy, and thus it is hearsay.

[1:00:29] Well, this is interesting. Okay, so I was hoping it was going to be a question

1:00:35 Thomas: About because we've talked about, you know, the driver can be part of the conspiracy, all that stuff. But it's really more about, well, I don't know if it's about hearsay, but about a statement being admissible. It sounds like, okay, so the driver was caught for another, so it's an unrelated crime and he tells police something. Now, we all know that anything you say to us can be used against you in a court of law, but does that apply to other people? Can anything you say can and will will be used against other people in a court of law. Is that, because that's not how the Miranda rights go. So let's see. I think it all went to the first guy and the second guy.

Man, this is really hard. I don't know. The answers aren't, nothing's jumping out at me. It's, it's, it's even hard to do the issue spotting stuff. I would say, so for A is yes, an admission by a party opponent. That doesn't really seem right. They're not a party opponent unless I'm just totally missing something. That doesn't really make any sense because it's not as though the driver is going to be putting those people on trial or anything. So, I'm going to eliminate A, and then I'm also going to eliminate C, no, because it was made while in custody and therefore unreliable. I don't know why that would be anything. So, I'm going to eliminate A and C. So, that leaves us with yes, as a statement against the interests

1:01:55 Thomas: Of the other defendants, or D, no, because the statement was not made in the course

[1:02:01] of or in furtherance of the conspiracy, and thus it is hearsay. I kind of feel like in the trial of the first guy and the second guy, wouldn't you need, I feel like it would be hearsay because it's unrelated to that, and wouldn't you want to just put this guy on the stand? You know, I, I don't, I don't, I know, I'm good, whichever I pick is going to be the wrong one. I feel like the, you would want the answer to be yes, as a statement against the interests of the the other defendants.

But I feel like you just need to put this guy in the stand. And I think I'm going to go with D. D just sounds like a good answer. It was not made in the course of the furtherance of the conspiracy. And thus is hearsay. I feel like in the trial of the first guy and the second guy, because it's not his trial, it's theirs. It's kind of unrelated. I think it's hearsay. I think you got to put that guy in the stand. Maybe offer him a plea deal. I'll pop papadopolis, whatever. I'm going to go with D. I'm sure it's wrong. It's going to be B.

[1:02:58] So everybody guess B, but I'm going to go with D. All right. And if you too would like to guess B, you know how to do that. Just

1:03:04 Andrew: Retweet out or share on Facebook, our announcement of this episode, include hashtag TTTB, your guess, your reasons, therefore, and we will shower you with never-ending fame

[1:03:16] and fortune, fame and fortune not guaranteed. All right. Thanks so much for listening. I'm very curious to find out if I blew that one,

1:03:22 Thomas: Uh, but luckily the stakes for me aren't as high as the stakes are for Paul Manifort right now, so that'll

[1:03:29] be, uh, it's, I don't think, definitely, he definitely got some money from that first art museum. Yeah, yeah.

1:03:36 Thomas: I don't think I'm doing any time for this one, but thanks for listening, thanks for Andrewing, and uh, keep on yodeling, everybody, we'll see you next time, stop breaking the law.

[1:03:51] This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five-star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use, and be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time.

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[1:04:48] Broad dog.