If You Can’t Find Guilt, Create it

The other day I talked to my dad about the Manafort witness tampering thing. He has dementia, but he was a top-notch attorney in his time, and even though he can’t cope with current situations, he can still remember things from the distant past.

Anyway, I told him about the factual allegations Bob Mueller’s team put forth with regard to the new indictment. Basically, they say Manafort contacted some people who were potential witnesses, and one person hung up on Manafort before Manafort could say anything, because that person assumed–ASSUMED–Manafort was going to try to persuade him to do something illegal. The indictment doesn’t allege any facts that constitute illegal behavior, and that’s really something. A federal prosecutor got someone indicted without alleging that that person did anything illegal!

My dad was surprised. He pointed out that attorneys talk to their adversaries’ witnesses all the time. For example, they depose them.

There is nothing illegal about talking to a witness after you’ve been charged with a crime. It’s a bad idea, as Paul Manafort could tell you, and a judge may forbid you to do it in advance, but there is no law against it. The things alleged in the indictment appear to be legal. Of course, journalists being what they are, it may be that Judge Ellis told Manafort not to talk to witnesses and no journalist thought it needed to be mentioned.

I decided to look up the elements of federal witness tampering. Elements are items in a legal checklist. For example, if you want to prove negligence, you have to prove the defendant did four things. Those things are elements. If you only prove three, you lose.

Here you go:

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1) influence, delay, or prevent the testimony of any person in an official proceeding;

(2) cause or induce any person to—

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;

(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;

(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or

(D) be absent from an official proceeding to which such person has been summoned by legal process; or

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation?supervised release, parole, or release pending judicial proceedings;

shall be fined under this title or imprisoned not more than 20 years, or both.

Let’s make it short and sweet. Mueller has to prove Manafort 1) CONTACTED people and 2) SUCCEEDED in delivering communications to them, in which he 3) TRIED TO INFLUENCE their cooperation with the court. That’s a fairly accurate summary which is easy to swallow.

You can see Mueller’s problems. He hasn’t alleged that Manafort succeeded in delivering barred communications to anyone.

A. The man mentioned in the indictment hung up, and he didn’t say Manafort tried to influence him.

B. Mueller hasn’t alleged that he knows what Manafort said to other individuals, so he hasn’t alleged facts that would prove Manafort tried to influence anyone.

When you write an indictment, you’re supposed to allege facts (not conclusions without facts) which, if proven, ground a guilty verdict. Alleging that someone committed murder, for example, doesn’t cut it. You have to say something like, “Defendant was observed striking the decedent in the head with a sling blade while eating biscuits with mustard.”

The Federal Rules of Civil Procedure say an indictment must contain a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” Manafort’s team has already responded to the new indictment with a motion. I don’t know the contents, but I’ll bet it cites the lack of essential factual allegations.

Here’s what Mueller can convict Manafort of, if he succeeds in proving only what is contained in his factual allegations: Manafort contacted some witnesses. That’s not illegal.

Because Mueller has the one-sided, ridiculously unfair grand jury process on his side, and because he is known for coercing and ruining the lives of people who don’t cooperate, Mueller now has the tools to go fishing and back up his indictment. He got Manafort’s acquaintances to give him their phones, without warrants. They had seen the financial and personal devastation other innocent people had suffered at Mueller’s hands, so presumably, they would have done nearly anything to get him off their backs.

He filed a sleazy indictment without evidence, and he is using the threat of financial catastrophe and similarly weak indictments to scare people into letting him root around in private records to see if he can back his charges up.

This is not how the law is supposed to work. The authorities are supposed to have evidence that you’ve done something wrong before they search you. The feds don’t show up at your house, carry off your electronics and files, look at the contents, see if you’ve broken any laws, and then charge you. That would be unreasonable search and seizure. They’re supposed to wait for evidence of a crime and then use that evidence to ground warrants and indictments.

When Bob Mueller is around, the Fourth Amendment doesn’t work. He denounces you without evidence, and then he uses his own denunciation to force people to provide the evidence he needs. Welcome to 17th-century France.

Man. You can see why the Founding Fathers made things so hard on the government. They knew what we were up against. They knew US citizens would be tormented and abused by generations of heartless, ambitious, unethical bureaucrats.

I’m very glad no one I care about or know well has been charged with a crime that could require me to be a witness in the future. Imagine what could happen, if a friend of mine got a prosecutor like Mueller.

My sister was charged with some felonies. Thank God the State’s Attorney’s office didn’t work like Mueller’s office. No one sent me subpoenas, asking for all of our emails. No one called me in to “talk to me,” trying to get me to lie so they could charge me with my own felonies and force me to tell them everything I knew.

Maybe I had information they could have used. Maybe my sister sent me emails saying she was guilty. The prosecutor didn’t bother me, because like most prosecutors, he wasn’t overfunded and completely ruthless. We have to try to punish crime, but it’s not worth it if we make large numbers of innocent people utterly miserable.

Ken Starr didn’t act like this. I don’t recall any special prosecutor acting like this. Imagine the misery Ken Starr could have caused, had he chosen to coerce everyone who had knowledge of the Vince Foster, Whitewater, and Monica Lewinsky affairs. Leftists like to talk about the large number of indictments Mueller has produced, as if this proves Trump and his associates are evil people. It looks like all it proves is that Bob Mueller likes indicting people.

Bill Clinton committed perjury on camera, and he was not indicted.

I’m always glad I got out of practicing law. When I was practicing, I didn’t think much about the suffering of defendants. I filed motions and so on, and I didn’t consider the way it felt for people on the other side. I clerked for a patent lawyer who sued a disabled vet who stole some photos in order to advertise collectible Disney stamps over the Internet. I wouldn’t want to be involved in anything like that again. In many cases, simply being sued or charged is as bad or worse than losing a case.

I’ve been sued several times, and it’s no fun, especially when you’re innocent and your troubles are mainly due to your adversary’s lack of ethics.

Unless the judge short-circuits things, Mueller will get all the evidence he wants, and then he’ll find out whether Manafort did anything an ignorant jury will think is wrong. If so, he’ll prosecute him as hard as possible.

If Manafort is guilty, he will probably go to prison for breaking the law while trying to get rid of charges that never would have been filed had he not be associated with the Trump campaign. No murderers will be taken off the streets. No kids will be protected from drug dealers. No corrupt presidential campaign will have been exposed. Mueller will get a scalp no reasonable person cares about.

Even if the judge dismisses the indictment, which was apparently drafted without evidence, Mueller wins, because he has used his insinuations to get evidence which could lead to a better indictment.

I would really like to see Mueller held accountable for his scorched-earth tactics. He sets a scary example for other prosecutors, especially in an age when the criminalization of conservatism is very real.