Robert Mueller on Capitol Hill in 2013. (Larry Downing/Reuters)

But that doesn’t mean he has no such evidence.

Paul Manafort faces two criminal trials, the first of which is scheduled to commence in the Eastern District of Virginia later this month. It is routine in such cases for the parties to file “motions in limine,” which ask the court to preclude evidence on topics that are claimed to be irrelevant to the charges and that could cause unfair prejudice or confusion.


The indictment on which Manafort will be tried primarily involves allegations of tax cheating and bank fraud. There are no charges involving so-called collusion in Russia’s interference in the 2016 presidential election, the suspected scheme that was the rationale for Robert Mueller’s appointment as special counsel. Manafort thus filed an in limine motion to keep the collusion issue out of the case. In responding, the special counsel agreed with the defense, representing that the prosecution “does not intend to present at trial evidence or argument concerning collusion with the Russian government.”

This has prompted some chirping from Trump supporters. They note that Manafort is accused in the Steele dossier of being the key cog in the supposed Trump–Russia “collusion” arrangement. The suggestion is that Mueller has no real collusion evidence despite the fact that the FBI has been investigating the matter for two years.


It may well be that Mueller does not have a prosecutable collusion case (indeed, we have long surmised as much). But that is not a conclusion that can sensibly be drawn from the unremarkable fact that the special counsel does not plan to prove collusion in the imminent Manafort trial. Because collusion evidence would not be germane to the fraud allegations that the jury will be asked to decide, there would be no reason to introduce such evidence, if it exists.

Moreover, if Mueller were to have made collusion with Russia part of his case against Manafort, due-process rules would have required him to provide the defense with extensive discovery of his investigative files on that topic.


In other contexts, both Mueller’s prosecutors and the Justice Department have taken the position that they will not discuss the posture of Mueller’s investigation, or even the factual basis for believing there are crimes to be investigated (which, by regulation, is supposed to be established as a condition of appointing a special prosecutor). To do so, they have asserted, would compromise their ability to conduct the investigation effectively.


Having taken that position, the special counsel obviously would not raise the issue of collusion in Manafort’s trial. Otherwise, he would have to lay his cards on the table. Indeed, he would lose control of his cards: Once an issue is deemed relevant to the merits of a criminal trial, it is up to the presiding judge to determine what information the prosecutor must disclose — and that is invariably more information than the prosecutor wishes to disclose.

Prosecutors always want to maintain investigative secrecy. If the evidence central to an investigation becomes public, it becomes harder to gauge whether witnesses are being truthful (as opposed to sculpting their versions of events around the publicly known facts). It can also become harder to locate additional relevant evidence once suspects have been tipped off about what the investigators are interested in.


As a practical matter, Mueller could not maintain investigative secrecy if he made collusion part of the Manafort trial. It should surprise no one, then, that he has declined to do so. It does not necessarily mean that he has no such evidence.


While collusion is not expected to come up in the trial, Manafort’s ties to the Trump campaign apparently will.

The prosecutor does not appear to be alleging that anyone else in the campaign was aware that Manafort may have been exploiting his high-ranking position to facilitate a fraud.

As the special counsel’s reply to the defendant’s in limine motion explains, Manafort is charged with defrauding a bank in connection with two loans aggregating to over $16 million. The evidence of this scheme is said to involve phony corporate documents (including a doctored profit-and-loss statement). In addition, it is alleged that when officers of the financial institution raised questions, a senior executive interceded on Manafort’s behalf. The senior executive, who has not been identified (but is referred to as a male in court filings), is said to have made it known to Manafort that he wanted an advisory position on the Trump campaign and in the eventual Trump administration.

The special counsel says that he got the former, but not the latter. Prosecutors will argue that he went to bat for Manafort on the loans because he hoped it would be his entrée to the campaign. Therefore, evidence of Manafort’s ties to and high-ranking position in the Trump campaign are essential to proving the bank-fraud scheme.

The special counsel strongly suggests that Richard Gates, a former business partner of Manafort’s who pled guilty and agreed to cooperate earlier this year, will be the prosecutors’ main witness against Manafort. Gates joined Manafort in working on the Trump campaign, and has admitted to being deeply involved in Manafort’s financial shenanigans.

Nevertheless, the prosecutor does not appear to be alleging that anyone else in the campaign, including then-candidate Donald Trump, was aware that Manafort may have been exploiting his high-ranking position in the campaign to facilitate a fraud.

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