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Here’s how Donald Trump may have just lied his way to prison

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- Commentary
David Cay Johnston
David Cay Johnston

Pay close attention to the front page story in Wednesday’s New York Times about Paul Manafort’s lawyer cooperating with Trump’s lawyers. It may well prove to be very important news just a short way down the road.

This story first appeared at DC Report. 

Bob Somerby at The Daily Howler, among others, has poked fun at the piece since it basically has one key new fact, not the torrent of them we find in so many other important stories about Trump White House intrigues.

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Its sole named source is Rudy Giuliani, Trump’s television lawyer. Giuliani acknowledged that information gleaned from Manafort’s meetings with FBI agents and prosecutors as a cooperating witness was being passed to Team Trump by Manafort lawyer Kevin Downing.

That one fact could well doom Trump’s presidency and perhaps land Trump and others behind bars.

As The Times notes, there is nothing illegal about what Downing did. That said, this double-agentish conduct would make excellent fodder for law school lectures on ethics, law enforcement and risky criminal defense strategies.

After Manafort was convicted of eight federal felonies last August and was about to endure the costs of a second federal trial, the former Trump campaign manager agreed in September to cooperate with Muller’s prosecution team.

We call that “flipping” because you switch sides, from criminal to law enforcement. Flipping requires criminals to be completely truthful in every detail with prosecutors about known crimes as well as disclosing still hidden criminal activity.

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In breaking its plea agreement with Manafort, the special prosecutor’s office said that after flipping sides, Manafort lied to FBI agents and prosecutors again and again. They promised a detailed recitation of these additional crimes in their pre-sentencing report on Manafort.

That Mueller’s team knew enough to say it can prove Manafort lied repeatedly and committed new crimes in doing so had to vex Trump.

Now jump forward to the days after this fall’s congressional elections, when the White House revealed that Trump was working with his own lawyers to answer written questions submitted by Mueller’s team.

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The day after the election, Trump forced the resignation of Jeff Sessions as attorney general and installed Matt Whitaker, an Iowa lawyer deeply involved in an investment scam who had repeatedly said he favored shutting down the Russia investigation and disbanding the Mueller team. Two days after Sessions’ removal, multiple news reports appeared about “Manafort’s apparent lack of cooperation” resulting in “increasingly tense” talks with Mueller’s team appeared. ABC News, citing one source familiar with the talks, reported that Mueller’s team is “not getting what they want from Manafort. Leaks of this kind never come from prosecutors, indicating a new shift in strategy by lawyers for Trump and his potential co-defendants.

Two days after the election, Trump told a Rupert Murdoch-owned newspaper, the New York Post, that he would not “rule out” a pardon for Manafort a signal to the jailed felon that he was still in good stead with Trump. Today Trump reiterated that position, which could be seen as obstruction of justice by dangling a pardon to cover up Trumpian crimes.

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If Trump and his lawyer relied on what Manafort’s lawyer passed on from meetings with Team Mueller, this double-agent legal game may blow up in Trump’s face.

Significantly, Whitaker has not been confirmed by the Senate, making his appointment contrary to our Constitution. At a testy White House press conference on Nov. 9, Trump said “I don’t know Matt Whitaker” and was unaware of Whitaker’s strong views on Mueller’s Russia investigation, a surprisingly blatant lie even by Trumpian standards since in October Trump spoke of his regard for Whitaker.

On Nov. 15, Trump wrote this tweet: “The inner workings of the Mueller investigation are a total mess. They have found no collusion and have gone absolutely nuts. They are screaming and shouting at people, horribly threatening them to come up with the answers they want. They are a disgrace to our Nation…”

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On the very next day, Friday, Nov. 16, he said that he had finished preparing written answers to questions posed by Mueller. He also insisted that he wrote his own answers, not relying on his lawyers except for legal form, and they were easy questions to answer.

The idea that Mueller’s extraordinary team was clueless about the sincerity of Manafort’s conduct after he claimed to have flipped to the prosecution’s side seems preposterous.

More likely the prosecutors quickly figured out that Manafort was insincere and exploited the hubris of two con artists, Manafort and Trump, letting them walk down their own primrose path [See Hamlet, Act I, Scene 3].

If Trump and his lawyer relied on what Downing passed on from meetings with Team Mueller, using it to shape the written answers to Mueller’s questions, this double-agent legal game may blow up in Trump’s face.

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Police and prosecutors are allowed to lie to suspects. They do it all the time, planting fake facts to draw out criminal conduct and establish conspiracies. If they had indeed figured out that Manafort was not being straight with them they could easily frame questions to mislead, offer fake facts, withhold real facts and imply ignorance to flush out Trump.

Keep in mind that Trump is a terrible witness. That’s why he fought testifying before a grand jury and answering only written questions.

As I showed in my 2016 biography, The Making of Donald Trump, he has a long and well-documented history of just making stuff up even when he is under oath, trying to bluff his way out of situations and, especially, counting on prosecutors and plaintiff’s lawyers not being fully prepared and determined to pin down facts. A federal judge, after a trial over his failure to pay several hundred illegal immigrants working on the Trump Tower project, found Trump’s testimony not credible.

Trump is highly susceptible to hearing what he wants to hear. And he can be frighteningly gullible, as we have seen in his loving embrace of North Korean dictator Kim Jong Un, modern tsar Vladimir Putin and other totalitarians.

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Fed the misinformation by Team Mueller—which it has every right and duty to if it will flush out crimes—Trump would be inclined to embrace fake facts and use them in an effort to escape responsibility for his conduct.

If I’m right about this, it may become crucial for state-level prosecutors in New York, Virginia, and the District of Columbia to indict Manafort sooner rather than later for felonies that he admitted under oath in his now broken cooperation agreement with Mueller.

That way, if Trump pardons Manafort, or grants him clemency, state authorities can arrest him before he is released from federal custody, closing any window of opportunity he might use to flee the country.

If you missed The Times report by Michael S. Schmidt, Sharon LaFraniere and Maggie Haberman, I recommend you read it—and maybe save a copy for future reference.

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