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Credit to Author: Garrett M. Graff| Date: Sun, 29 Oct 2017 21:16:30 +0000<\/strong><\/p>\n With public criminal <\/span>charges against former Trump campaign chairman Paul Manafort announced Monday morning, this year\u2019s biggest political story\u2014the former FBI director Robert Mueller\u2019s investigation of Russian interference<\/a> in the 2016 presidential election\u2014will enter an important new phase, guided not just by whispers and Twitter wars but by written indictments and the rules of federal evidence.<\/p>\n The indictment targeting Manafort and his business associate Rick Gates\u2014itself a political bombshell\u2014is likely to be merely the first step in a potentially long investigation. Details from the indictment\u2014and other emerging public court documents\u2014will immediately help to shed further light on the tangle of relationships that Manafort and others had with various Russian and Ukrainian contacts in recent years, but there are plenty more investigative avenues that Mueller appears to be following, some far removed from Manafort's orbit.<\/p>\n Here are five rules of federal investigations to keep in mind as you read about the new charges and think about their implications:<\/p>\n 1) The FBI takes down whole organizations.<\/strong> The charges announced Monday in Mueller\u2019s investigation are almost assuredly only a first step in what could be an very long and extensive grand jury investigation.<\/p>\n Only rarely does the FBI end up charging a single individual; it\u2019s simply not worth the time and resources of the federal government to go after individuals in cases outside of rare instances, like say, terrorism. Institutionally, the FBI\u2019s modus operandi and DNA is to target and dismantle entire whole criminal organizations\u2014that\u2019s why federal cases usually take so long: The agency starts at the bottom or periphery of an organization and works inward, layer by layer, until it\u2019s in a position to build a rock-solid case against the person at the top.<\/p>\n This investigative method has been the heart of the FBI\u2019s approach since the 1980s, when it and the Justice Department\u2014led by an era of aggressive and brilliant prosecutors like Louis Freeh, Rudolph Giuliani, and Michael Chertoff\u2014began to attack La Cosa Nostra in New York. The FBI relied then on a then-new tool, the Racketeer Influenced and Corrupt Organizations (RICO) Act, to attack and dismantle entire mafia families, charging dozens or scores of suspects in a single case.<\/p>\n The approach, then and now, has been almost always been similar: Work on peripheral figures first, encourage them to cooperate with the government against their bosses in exchange for a lighter sentence, and then repeat the process until the circle has closed tightly around the godfather or criminal mastermind. There\u2019s no reason to think that this investigation will be any different.<\/p>\n In fact, members of Mueller\u2019s investigative team<\/a> cut their teeth on a who\u2019s who of the biggest Justice Department targets of the last quarter century, taking that \u201corganization\u201d approach to cases like Enron (prosecutor Andrew Weissmann led the task force), al-Qaeda (aide Aaron Zebley helped investigate the 1998 embassy bombings before 9\/11), and organized crime (prosecutor Greg Andres helped investigate the Bonnano family in New York, as well as the $8 billion Ponzi scheme led by Texan financier Robert Allen Stanford, who\u2019s now serving a 110-year prison sentence).<\/p>\n Weissmann\u2014who was spotted Friday outside the grand jury room\u2014is considered an expert on \u201cflipping witnesses,\u201d encouraging people to testify against their colleagues. In the 1990s, he led the case against mobster Vincent \u201cthe Chin\u201d Gigante, from the Genovese crime family, with the help of turncoat witnesses.<\/p>\n 2) Don\u2019t hold your breath for \u201ccollusion.\u201d<\/strong> For all the talk of Russian collusion, there isn\u2019t really a federal crime that matches what the press, critics, and Capitol Hill lawmakers have been calling collusion, a word that refers legally to a narrow segment of antitrust law. And there\u2019s almost zero chance anyone will be charged with treason, a charge that\u2019s only available to use against enemies in a declared war.<\/p>\n Instead, nearly all charges that stem from this case\u2014based, at least on publicly available tea leaves\u2014are likely to focus on targeting individual crimes reflecting aspects of the complex web of Russian influence in 2016, rather than a neatly-tied-up-with-a-bow conspiracy. Early rounds of charges may even likely focus on business dealings far removed from the questions of the 2016 election.<\/p>\n Expect to see garden-variety white-collar crimes\u2014charges like money laundering, mail fraud, wire fraud, and \u201cstructuring,\u201d (arranging financial transactions to avoid federal reporting requirements)\u2014as well as the possibility of some more exotic charges like violating the nation\u2019s election laws or the Computer Fraud and Abuse Act, or there\u2019s a general catch-all known as 18 USC Sec. 371, \u201cconspiracy to commit offense or to defraud United States.\u201d<\/p>\n There\u2019s also the crime of being an unregistered foreign agent\u2014a charge known inside the Justice Department as a \u201cFARA violation,\u201d after the Foreign Agents Registration Act. A FARA violation is typically the FBI\u2019s go-to way to charge espionage and foreign intelligence officers\u2014the cases are rare and only a few agents in their careers ever have a chance to work a FARA case\u2014but we\u2019ve already seen Paul Manafort and Michael Flynn retroactively register as \u201cforeign agents\u201d this year, showing that they have some legal exposure in this realm.<\/p>\n As the case unfolds, there will almost assuredly also be charges that, in many ways, form the foundation of many federal cases: obstruction of justice, perjury, or lying to federal agents (a.k.a. \u201cmaking false statements\u201d). These charges are particularly common in special counsel-type investigations\u2014and can end up targeting people unrelated to the original criminal act. During Patrick Fitzgerald\u2019s investigation into the leak of Valerie Plame\u2019s name, for example, it was Vice President Cheney\u2019s chief of staff, Scooter Libby, who ended up in the hot seat for obstruction and perjury. Similarly, Marine General James Cartwright was charged with lying to federal investigators as part of the investigation into the Stuxnet leak. These charges\u2014perjury, obstruction, false statements\u2014are often used as leverage to seek a witness\u2019s cooperation (see No. 4).<\/p>\n This approach and the reality of federal criminal law means that the full picture of what happened in 2016\u2014and even before\u2014is likely still years away from being understood.<\/p>\n 3) There are many threads, including some likely unrelated to others.<\/strong> Based on what we know so far, it appears that Russia\u2019s information operation against the 2016 presidential election might have been less of a top-down conspiracy and more of an opportunistic case of many different arms of the Russian octopus\u2014the strange mix of politicians, intelligence officers, oligarchs, criminals, and professionals who surround the Kremlin\u2014working to exploit every potential opportunity.<\/p>\n Just in the last week, we\u2019ve seen how expansive the Mueller investigation might be inside the nondescript Washington, D.C., office where his team has been assembling evidence for months. He\u2019s evidently covering not just the Trump Tower meeting (coordinated with the Kremlin?<\/a>), but digging into Paul Manafort\u2019s finances (his realtor testified<\/a> before the grand jury last week), looking at Michael Flynn\u2019s work with Turkey<\/a>, and the social media advertising and targeting that went on as well. Add in the hacking of the DNC and John Podesta\u2019s email<\/a>, which had already been the subject of an FBI investigation before the election even unfolded\u2014and which might represent an entirely separate Russia nexus through Wikileaks\u2014or what we\u2019ve now learned about the attempted penetration of state-level voting machines, and it\u2019s clear that this case will evolve for many months to come. And all of those individual cases or investigative avenues might prove ultimately unrelated to the Big Question: Did President Trump attempt to obstruct justice with his firing of FBI Director James Comey?<\/p>\n 4) The first charges are only a starting point\u2014but don\u2019t necessarily wait for the dramatic Perry Mason-style trial.<\/strong> The indictments handed down by a grand jury that lead to a target\u2019s arrest are rarely the charges the target ultimately faces in a courtroom. Federal prosecutions\u2014particularly complex, still unfolding ones like Mueller\u2019s\u2014often go through many legal iterations, with so-called \u201csuperseding indictments\u201d either adding additional charges down the road as more information becomes known or, as trial nears, dropping ancillary charges in order to zero in on the most potent and provable ones.<\/p>\n However, as much as Law and Order<\/em> may have taught us otherwise, very very few cases go to trial\u2014generally more than 90 percent of federal cases are settled via a plea bargain. That\u2019s in part because the government is heavily incentivized to take the bird-in-hand of a lesser charge for a guaranteed success, but also because the government has tremendous leverage in a criminal negotiation, from the length and location of a prison sentence (much better to be in the low- security FCI Danbury prison in Connecticut than it is to be in the high- security FCI Terre Haute in Indiana) to what assets the government might try to seize (think: \u201cNice house your family lives in\u2014shame if something happened it\u201d) to what the impact of a unfolding case might be on family members. (You have an aunt who overstayed her visa? Maybe the government promises to overlook that. Your son or wife was also in on the scheme? Maybe you plead guilty right now to a heftier charge to stop the investigation of your family.) Weissmann used this tool to effect in the Enron trial, leveraging the charges against former Enron CFO Andrew Fastow and his wife to encourage Fastow to testify against Enron CEO Jeffrey Skilling.<\/p>\n Pay particular attention if you start seeing Mueller\u2019s team filing not criminal indictments but \u201ccriminal informations,\u201d which are effectively criminal charges done with the cooperation of the target: That means the suspect is cooperating with prosecutors and has likely worked out a deal to provide testimony or evidence against others, or has negotiated the charges in advance and intends to plead guilty quickly.<\/p>\n It\u2019s clear, too, that Mueller is coming at this investigation with an even broader lens: One of the Justice Department veterans he recruited to the team, Michael Dreeben, is known for being the government\u2019s smartest mind on appellate cases\u2014that is, how a case will play out down the road on appeal\u2014and he\u2019s argued 100 cases before the Supreme Court, putting him in a rare class of lawyer who can meld not just the evidence necessary for a trial but also the legal theory and jurisprudence necessary to sustain that case through years and rounds of appeals. There are signs, too, that Mueller is even thinking through how presidential pardons<\/a> might shape his case.<\/p>\n 5) Bob Mueller is after federal crimes, not political problems.<\/strong> It\u2019s important to understand that the task before Mueller\u2019s team of FBI agents and prosecutors isn\u2019t to investigate and make public the full truth of the 2016 election. They have a much more narrow task: To determine whether there are definable criminal violations that amount to federal felonies or misdemeanors and that can be proven in a courtroom beyond a reasonable doubt based upon the federal government\u2019s standard rules of evidence and criminal procedure.<\/p>\n Sally Q. Yates\u2014the acting attorney general fired by President Trump for refusing to implement the so-called Muslim ban\u2014has argued since leaving office that Mueller\u2019s standard should not be the nation\u2019s only test of what happened in 2016. There are any number of behaviors and actions that might fall short of a definable, provable felony that we, as a democratic society and a sovereign nation that eschews foreign involvement in our politics, might find troubling behavior in our commander-in-chief and the leader of one branch of government. But it\u2019s not entirely clear right now how the country might see such behavior or act upon it.<\/p>\n How, if Mueller uncovers such behavior, it remains an open question how he might convey this information to the public and political process. He might write a formal report, akin to what Ken Starr did during his probe into the Monica Lewinsky affair during the Clinton years or what the 9\/11 Commission did following its investigation, and turn that over to the Justice Department to present to Congress. Or he might not. When Mueller, working in private practice after his stint as FBI director, was tasked with investigating the NFL\u2019s handling of the Ray Rice domestic violence case, he defined his mission as narrowly as possible\u2014examining only the NFL\u2019s handling of a video showing the original assault, rather than getting into the larger questions of, say, whether the League coddles abusers.<\/p>\n This latter category of \u201cpolitical problems\u201d ultimately ends up being the purview of Congress\u2014and it will be almost inseparable from the conversation of whatever criminal charges and information stems from Mueller\u2019s investigation. At each stage, we will see debates in the media and political circles: Are there political high crimes and misdemeanors that warrant action via presidential impeachment? Unfortunately, the Capitol Hill investigations have had a difficult road this year, and there seems little appetite for bipartisan action and a forthright debate about the 2016 election. The House investigation by the Intelligence Committee was quickly undermined by bizarre behavior<\/a> by chair Devin Nunes<\/a> and now even the Senate investigation, which at least kept up the appearance of a bipartisan effort, appears to be faltering<\/a>.<\/p>\n Which is a long roundabout way of saying: Monday\u2019s charges are only the beginning of what\u2019s sure to be a complex and deeply partisan process. And, if this weekend\u2019s release of half-century-old files related to JFK\u2019s assassination is any guide, we, as a country, may never feel like we fully understand what transpired in 2016.<\/p>\n This post has been updated to reflect that the Mueller team's first charges were brought against Paul Manafort and Rick Gates.<\/em><\/p>\n