There are two different and separate things going on with the witness tampering.
1. Mueller filed a motion to revoke his terms of release. In order to do that all that has to be proven is that there was probable cause to believe he had. In other words, the burden on Mueller is to show that there is substantial reason to believe he had. Mueller's burden is NOT to prove that Manafort is, in fact, guilty of it.
2. In order to obviate the counterargument of "why didn't you indict him for it then", at the same time that Mueller filed the motion to revoke, he ALSO then went to the grand jury and got the witness tampering counts added to Manafort's charges. That's merely part of the superceding indictment, and we are nowhere near the stage where Manafort would responding to those charges. Those charges are just a few hours old. In that context, Manafort's burden would be to (a) show that even if all the evidence were taken as true, those facts would not amount to the crime charged, or (b) ultimately persuade a jury that Mueller has not proven his case of guilt beyond a reasonable doubt.
So, yes, "probable cause" is the standard to (a) revoke bail, or (b) return an indictment. But in the context of these two different things, the burdens of proof are very different in terms of "what is this opposing motion attempting to accomplish". Mueller's burden is much, much lighter here on Thing 1, than it would be if we were talking about the charges filed today (Thing 2).
And the reason for that is that we are not talking about a conviction standard of guilt beyond a reasonable doubt. We are talking about violation of what amounts to an agreement.
The Eighth Amendment provides that "excessive bail" may not be imposed. Outright denial of bail requires a lot. However, Manafort here has not been denied bail. He was on bail, but Mueller alleges (credibly, I might add, but I like to analyze these things objectively) that there is probable cause to believe he violated the conditions of the bail that Manafort already had.
To do that, Mueller does not need to prove a full-blown case of witness tampering. He only has to show that it sure does look a lot like Manafort did. Manafort's guilt or lack thereof on the actual charge is not what matters.
Incidentally, many have opined that Mueller is successful, then Manafort will go directly to jail. That's not necessarily the case. An outright denial of bail requires a showing of danger to the community. While Mueller makes a go of that in his brief, it is important to remember that violation of conditions of bail CAN result in more restrictive conditions, such that the community danger is addressed.
Things like this can look more like a form of house arrest. For example, if the problem is "Manafort is attempting to communicate with witnesses" then the answer could be, "okay, we take away all of his communication devices, bar him from using electronic communication devices, whether his or not, etc..
This is the typical "Mafia Don" approach. You get them on a highly restrictive release, where they are essentially limited to vocal communication to people within earshot. THEN, in parallel with that, on the strength of the pending indictment, you also get warrants to bug the shit out of him, wire his schnauzer, turn some of the people with whom he communicates (as appears has already happened to some extent), and you let him fuck up again.
This is an organized crime investigation. I'm not at all suggesting that a scenario like the one above is the one that will play out. But that is not an uncommon scenario.
The opening paragraph of Manafort's brief is somewhat suggestive of what might be an appropriate (in Manafort's view) outcome if he loses on the motion:
" Importantly, the Court’s Release Order does
not order Mr. Manafort to “stay away” from any individuals, nor is a “do not
contact” list attached to the Release Order, because there is no basis for imposing such conditions. "
That's a great sentence right there. Because what it says is, "Okay, look, even if Mueller proves his point, then the problem was that the Release Order needed a 'do not contact' list and a 'stay away' list. So if you find in his favor, then the remedy is a new Release Order that has them."
Because you don't like to lead with your chin and put it the way I said it, that's how you end up with sentences like that one in Manafort's brief. It's a good jumping off point for determining the remedy if Mueller prevails on the motion.
It's a well-done brief, but it's somewhat misdirective and doesn't fully address the evidence. In the Mueller brief, a variety of examples are cited of "types of activities which constitute witness tampering. Manafort's brief addresses those cases, but reaches the conclusion:
"The case law relied on by the Special Counsel confirms
that a defendant must do much more than communicate his views of a
case and evidence to others to sustain an attempted witness
tampering charge."
Well, yes, but sustaining a charge is not the point here. The point here is whether there is substantial reason to believe he did.
The really disappointing part of the brief is attempting to say, "Witness? What witness? I don't see any witness here" in relation to the testimonial evidence from the party who understood that Manafort was trying to suborn perjury. It's a tough nut to crack when your point is that "none of the communications objectively say that" when you have someone who is testifying that's what they understood from their end of the communication.
Manafort's brief leaves that poor witness stranded in a footnote:
"It is clear from the Special Agent’s declaration
that the agent spoke with the person on the other end of the call (i.e., D1).
(See Doc. 315-2, ¶¶ 19, 20). Instead of identifying what was
said exactly for purposes of this motion, however,
the Special Counsel instead states what D1 “understood”
from Mr. Manafort’s brief text messages—
not the telephone call that occurred.
Id. at ¶19. The Special Agent also states what D1 opines,
i.e., what D1 believes Mr. Manafort knew."
Well, yes, that's all well and good. The problem is twofold. First, if Mueller was relying on what D1 said Manafort said - i.e. "D1 says that Manafort said X", then that would be another kettle of fish. But what Mueller says is "Manafort communicated with D1, and this is what D1 understood from the communication."
What, after all, is "communication"? It is the transmission of words, text, etc., to another person for the purpose of getting them to understand something.
If (a) Manafort communicated to D1, and (b) D1 "understood" that Manafort was asking him to lie, then IMHO there is probable cause to believe that's what Manafort was trying to do. Does it prove Manafort was, in fact, intending to do that? No, it doesn't. But for the purposes of the current motions, it doesn't have to prove that.
= new reply since forum marked as read
