High Risk, No Choice

Prosecutorial strategy in a financial crime case is not something I know anything about. What’s more, I haven’t been following the minutiae of the trial as closely as the other members of our team who are devoted to it for the duration (mainly Tierney Sneed, Caitlin MacNeal and David Kurtz, though most of the team is involved at least in a support role). But last week, as there was more and more evidence of high living, I did have a few moments where I wondered: ‘God, I really hope they don’t blow this.’ Subsequent testimony at the end of the week I think clarified the point of that earlier testimony and got on to the more factual part of the case. (To be clear, I think this was probably clear all along to more knowledgable trial watchers.) But it wasn’t until I say this note from TPM Reader JW that I really grasped the high risk nature of Manafort’s defense strategy …

Even at the earliest stages of trial, we are seeing how incredibly risky is for Manafort to blame Gates for criminal wrongdoing. The “blame Gates” strategy means that Manafort is effectively admitting that criminal conduct occurred at his firm and in his own name. Tax evasion? Money laundering? Yes, taxes were evaded and money was laundered, but it was all Gates! Manafort knew nothing! This is a train wreck of an argument.

Obviously, the much stronger defense argument is that nothing illegal actually occurred, that Manafort’s business merely took advantage of tax loopholes, pro-business laws, and accounting tricks that may be seem unsavory, but are in fact arguably legal. Even if he broke the law, he should argue, he didn’t do so intentionally. He was just pushing the limits of aggressive accounting. This argument has real appeal for certain people, and Manafort only needs on juror to agree.

But Manafort seems to have already conceded illegality. His team seem to be admitting the crimes occurred. They’re just trying to pin it on Gates. Of course, not a single one of the professionals (accountants, bookkeepers, lawyers, employees, other lobbyists) who take the stand will ever admit that they took action solely on the word of Rick Gates, without Manafort’s knowledge. They will all say that Manafort was very involved, very knowledgeable, and every action they took was at his direction. Their professional reputations all depend on doing exactly what the guy in charge – in this case, Manafort – wants done. None will be willing to admit they got “duped by Gates”, even if it happened.

One some level, we can imagine that Manafort could bamboozle a juror into believing that none of his actions were actually illegal – that he’s just a sharp-elbowed businessman who believes it’s his god given right to minimize his tax burden. But it is almost impossible to imagine Manafort convincing the jury that Rick Gates was committing crimes and poor Paul Manafort had no idea. A jury is likely to find this argument insulting and very easy to resolve.

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