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Friday, May 4, 2018

The Prosecutor Has A Little List

Mueller Zeroes In on the Trump-Kremlin Connection
By David Cay Johnston, DCReport Editor-in-Chief

Those 43 issues that Robert Mueller wants to ask Donald Trump about tell us that the special prosecutor’s focus is not on financial crimes Trump has committed, but on the nature of his relationships with the Kremlin and Russian-speaking influencers.

That’s significant because Mueller’s charter as special prosecutor is to examine Russian interference in the 2016 elections and, secondarily, any other crimes uncovered along the way.

Trump has repeatedly warned Mueller to stay away from his business deals, many of them richly funded by Russians and smelling of money laundering and payoffs. 

However, the 43 questions, assuming the list is complete, indicate that Mueller is focused on Russian interference, not squirrelly and economically nonsensical deals with Russians that put cash in Trump’s accounts.

Among the issues Mueller wants to probe is the effort by Jared Kushner, Trump’s son-in-law, to use secret Russian embassy equipment to communicate with the Kremlin. 

Ponder what would be leading Fox News every day since late 2016 had, say, an Obama aide made such a request and how often the word “traitor” would appear in the pages of The Wall Street Journal editorial pages and their like, as well as the Congressional investigations that would be underway using its power of subpoena.


However, that Mueller is focused on conspiring with the Kremlin and not dubious financial deals does not mean that financial crimes and shenanigans are insignificant. 

A lawsuit filed in California last week which got almost no attention in the news makes clear that financial pressure is building on one of the unregistered foreign agents allied with Moscow on whom Trump relied, in this case, campaign manager Paul Manafort. More on this below.

The 43 questions were leaked to The New York Times by someone connected to the Trump defense team, the reporters said Monday night on MSNBC.

Leaks in grand jury cases always come from the defense or its allies. Sometimes defense lawyers want to get troubling news out early, so it lacks impact at trial. 

Other times they want to send signals to witnesses and codefendants. And sometimes the leaks are designed to manage the subject on the investigation, which in this case would be Trump, who eschews sound advice the way cockroaches flee lights.

The questions were not exactly those posed by the Mueller team. Rather, they were what John Dowd, a Trump criminal defense lawyer, and his team synthesized from a meeting with Mueller and his team.

Clearly, these were broad areas that Trump would be asked about, not the actual questions.

The actual questioning would involve long inquiry trees drafted on legal pads. Specific questions would branch off into prepared and carefully worded inquiries depending on the answers. The written preparations for such extensive interviewing are known among litigators, and investigative reporters, as “if this, then that.”

The 43 broad areas reveal that Team Mueller is laser-focused on contacts with Russian agents and obstruction of justice—trying to block law enforcement from investigating Russian involvement in the Trump campaign.

That simple fact is significant because Trump keeps claiming he is the victim of a witch hunt, which in our times means not accusing women of conjuring the devil, but the official harassment of officeholders because of their political views. 

Nothing in the questions hints at politics, only disloyalty to the United States of America, obstruction of justice and conspiring with a hostile foreign government, all high crimes and misdemeanors as described in our Constitution.

Trump’s witch hunt claims play well with his fans, as I have learned from many talks and appearances on radio talk shows that let listeners call in with questions. 

But to anyone with even a modicum of understanding of legal process, the 43 question areas demonstrate seriousness, confidence by prosecutors that they have a case and a Mueller specialty, honing complex issues down to be as simple and straightforward as humanly possible.

If and when Trump is indicted this will not be the kind of slipshod prosecution we saw with O.J. Simpson, where damning facts got lost in a maze of incompetently presented and irrelevant issues about two murders. Mueller’s few legal filings in the Trump case show his masterful understanding of keeping it simple.

Having interviewed Trump many times, I know he could not withstand hours of questioning by prosecutors, even if he got frequent breaks to ask his lawyers for advice. 

After all, Trump has bragged that lying is something he is proud of. In my first book, Temples of Chance in 1992, one of the chapters on Trump is titled “The Art of Deception.”

Lying to federal investigators, even in an interview not under oath, is a felony. And if Trump declines an interview, Mueller has the option of calling him before a grand jury where he would have to answer questions under oath.

In this kind of inquiry, the ruse of “I don’t recall” will not cut it. Trump claims to have a world-class memory, except when it is inconvenient. Chris Hayes, the MSNBC host, had fun with Trump’s selective memory in this video.

Combine this with Trump’s practice of just making stuff up to fill in the voids in his knowledge, prosecutors with the skill level of the Mueller team would demolish him easily if they get to question him.

This may well explain why Dowd quit in March as Trump’s top criminal defense lawyer. A client who will not follow legal advice (and who is infamous for not paying his bills) is a client no lawyer wants.

What awaits us is whether Mueller subpoenas Trump to a grand jury or just issues a report. The problem with a subpoena is that Trump, based on my knowledge of the man, might just try to avoid service and refuse to testify. Trump is, in my view, a dictator in waiting.

While we can be confident that the U.S. Supreme Court would uphold a grand jury subpoena, how would it be enforced? Trump after all lives in the most secure building in the world, surrounded by hundreds of armed guards.

Meanwhile, back on the financial crimes and games front, there is that lawsuit filed against Manafort in federal Bankruptcy Court in California last week. It accuses Manafort of filing a phony second mortgage on a luxury residence in December 2016 on the day before the business which owned it filed for protection from creditors.

Frauds like this are well understood by bankruptcy trustees and judges. If Manafort had no real interest to protect he could be indicted yet again.

That filing is significant because it adds to Manafort’s huge legal bills and pressures to turn against Trump. Of course, to be useful to Team Mueller, Manafort would have to have taken out an insurance policy against Trump in the form of a memo, secret recording or having reliable allies in the room to witness any illegal interactions with Kremlin-allied individuals.

That Manafort has not flipped suggests that he may have slipped up and failed to take out insurance. I call this the Bridget Kelly syndrome after the chief deputy to Chris Christie who committed crimes on his behalf yet was unable to deliver the then-New Jersey governor up to prosecutors. Kelley, a single mother of four, went to prison when she could have walked.

Manafort may be in so deep over his taxes, financial manipulations and unlawful actions as a foreign agent that his only hope is to delay the inevitable. And, possibly, he is at risk of becoming a Kremlin assassination target.