The first shoe has dropped in the criminal investigation underway by Special Counsel Robert S. Mueller, III. Mueller is pursuing an amorphous charge to seek out federal criminal violations relating to asserted Russian interference in the 2016 presidential election.
I have despaired of trying to follow the ins-and-outs of the Mueller investigation in general, and the indictment in particular of former Trump campaign chairman Paul Manafort and Manafort’s associate Rick Gates. I read the reporting (largely based anonymous leaks) in both the “objective” national press and the avowedly partisan corners of the media. I am a long-time criminal defense lawyer, and I have to admit to shaking my head in incredulity after reading the typical breathless reports and self-proclaimed “breaking news.” Most disconcerting, and disappointing to this old news junkie, is how the “established” national and regional press have failed in their duty to, as the old saw goes, “tell truth to power” or even to their own readers.
And the Manafort/Gates indictment has brought out the worst in the Trump-era press on both the news and opinion pages. The New York Times’ reporting, like much of what passes these days for “journalism” by major news outlets that have lost sight of the press’ core mission to inform the public in our democracy, has firmly taken its seat in Mueller’s cheering gallery. Even the opinion pages lack the level of integrity that not so long ago anchored even the most partisan editorial and op-ed writers to some reasonable notion of accuracy and fairness. And so it was with an odd sense of relief that I came across an October 30th piece penned by Times opinion columnist Nicholas Kristof with which I could actually find some agreement. Kristof offered his prediction that Manafort would “sing” if he “pursues his self-interest.” Kristof did not engage in the fantasy that Manafort would necessarily tell the truth – only that he would testify and that his testimony would be in “his self-interest.” This is the tried-and-true formula by which federal prosecutors have traditionally avoided trials in some 96% of their indictments, and have routinely obtained the “cooperation” of indicted individuals and even those merely threatened with indictment.
Such an aria is a common scenario in the federal criminal justice system where, to use Alan Dershowitz’s pithy formulation, witnesses are taught by prosecutors “how not only to sing, but also to compose.” Kristof is safe making his prediction. It fully accords with any federal prosecutor’s playbook, and Mueller is one of the most skillful, a devoted practitioner of the federal prosecutorial black arts of “turning” potential or actual indictees into cooperators. The ultimate target of this step-ladder approach, of course, is the guy sitting at the top of the ladder—President Trump.
One does not have to be a fan of the President (and I’m not – I voted Libertarian, and I consider Trump unfit to govern) in order to have grave doubts and questions concerning this method for operating a “justice” system. In my half-century of trying criminal cases, some of them in federal court, I have observed many “turned” federal witnesses testify to scenarios, invariably incriminating toward whoever was unlucky enough to be the designated fall guy, that were almost certainly dictated to them by prosecutors.
Here is how it works: The cooperating individual testifies for the government. The defendant’s lawyer’s cross-examination of the turned government witness, in seeking to uncover the process by which the witness has been taught to compose, is usually utterly ineffective. This is because the prosecutor’s requirement (the composing and singing) for giving the witness leniency or immunity is communicated by the prosecutor not to the witness directly, but, rather, to the defense lawyer, and then by the defense lawyer to his witness-client. The witness may be cross-examined by the defendant’s lawyer at trial as to what the prosecutor told and promised to him, but not questioned concerning what the witness’ lawyer communicated to him.
By this simple expedient, any testimony about what was communicated to the turned witness as to what he would have to testify to obtain his reward of leniency, is off-limits for cross-examination under the rules-of-evidence that protect the attorney-client privilege of confidentiality. Such instructions are thus protected against disclosure to the jury, or even to the judge. This is probably the most potent truth-evading device that one finds in the criminal justice system. It is an undetectable, non-provable guide to the rewarded witness as to what testimony – true or, more frequently, false – he must deliver in order to skate free.
And so Mueller and his henchmen have begun, with Paul Manafort and Rick Gates, to climb the ladder. Chances are good that one or both of them will make a deal before trial and appear before a grand jury to confess crimes and to inculpate the next rung up the ladder. Of course, one might respond, the crimes with which Manafort and Gates stand charged – money laundering and tax evasion in connection with millions of dollars they earned while working for a political party in Ukraine – do not at all involve Donald Trump. This is almost certainly true. But such a suggestion entirely misses the point of the plea bargaining scam. All that is necessary for Mueller’s purposes is that he obtain sufficient pressure on Manafort and/or Gates to initiate the “sing and compose” scenario. This is where the ladder begins but does not end.
Yet there is one more piece to Mueller’s initial publicly-disclosed move in his investigation that cannot be ignored, namely the indictment of George Papadopoulos for lying to FBI agents when questioned, earlier this year, about his dealings with “foreign nationals whom he understood to have close connections with senior Russian government officials.” Papadopoulos, a one-time foreign policy advisor to the Trump campaign, it has now been disclosed for the first time secretly made a deal to cooperate with Mueller months ago when he was faced with the government’s evidence that he knowingly lied to a government investigator. Mueller charged Papadopoulos with one of the most ubiquitous crimes in the federal criminal justice system – that of lying to an FBI agent. (Most citizens have no idea that it is a federal felony to lie, even when not under oath, to any federal official. This is the basis for any competent criminal lawyer’s advice to his or her clients – do not talk to any feds who are asking questions.) Papadopoulos, having already waived any legal or factual defenses to the charge against him, is now a prime candidate for delivering a compose-and-sing aria satisfying to Mueller and his crew.
Anyone experienced in the devious ways of federal criminal justice will recognize that the appointment of a special counsel to conduct an “independent” criminal probe merely exacerbates the normal dangers and defects of the scandalously corrupt federal criminal justice system. This is because while the typical federal prosecutor goes about initiating an investigation and sees where it leads before selecting potential defendants, a special counsel is given a pre-ordained target.
Nothing Mueller produces will be reliable in the view of anybody sufficiently experienced with the system and honest enough to admit it. If Trump is demonstrably responsible for some of the misdeeds widely attributed to him, then the better approach would be the impeachment route, even though the three branches might not initially agree on the precise definition of “high crimes and misdemeanors” that would constitutionally justify throwing a president out of office. The evidence adduced via impeachment proceedings at least would not suffer from the techniques inherent in the federal criminal justice system by which witnesses are rewarded not for telling the truth, but, rather, for conforming their testimony to a prosecutor’s needs and pre-conceptions. In contrast, when a witness testifies in an impeachment proceeding, he would not have a prosecutor’s sword of Damocles hanging over his head and dictating his script.
Yet it is unlikely that the special counsel phenomenon will anytime soon give way to a more truth-based system of inquiry into wrongdoing in the Age of Trump. The Hill reported on November 13th that “Attorney General Jeff Sessions is considering naming a special counsel to lead an investigation into a list of matters involving Hillary Clinton, according to a … letter the Justice department sent to the House Judiciary Committee.” Sessions’ statement appears to be the result of long-time rants by the President that his defeated opponent in the election should be investigated for claimed crimes, including the infamous sending of classified information over her personal email server. In other words, the Republican Administration, faced with one corrupt investigation by a special counsel, proposes responding not by seeking to have truth overcome falsehood, but, rather, by engaging a second corrupt investigation seeking to prove an opposite falsehood.
It is highly doubtful that two clashing false scenarios will produce the truth. And so the circus will continue, to no useful end, likely with cascading and clashing falsehoods polluting the justice system and the ever-gullible (and highly partisan) news media.
Harvey Silverglate, a criminal defense and First Amendment lawyer and writer, is WGBH/News’ “Freedom Watch” columnist. He practices law in an “of counsel” capacity in the Boston law firm Zalkind Duncan & Bernstein LLP. He is the author, most recently, of Three Felonies a Day: How the Feds Target the Innocent (New York: Encounter Books, updated edition 2011). The author thanks his research assistant, Nathan McGuire, for his invaluable work on this series. The research and editing assistance of Nathan McGuire is gratefully acknowledged.