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Is collusion a crime? It may not matter. Why Manafort's trial is focused on financial wrongdoing (for now)

Relying on less sexy financial charges proves Mueller is a smart prosecutor, not that his investigation is a “witch hunt.”
Image: Manafort arrives for arraignment on charges of witness tampering, at U.S. District Court in Washington
Paul Manafort arrives at U.S. District Court in Washington on June 15, 2018.Jonathan Ernst / Reuters file

With the commencement of the criminal case against Paul Manafort, you may start to hear rumblings from some corners that this case has nothing to do with President Donald Trump or Russian collusion. Indeed, Trump’s lawyer Rudy Giuliani has arguably conceded the question of collusion altogether, telling “Fox and Friends” on Monday that "collusion is not a crime.”

Most legal experts would probably agree with Giuliani on this point — collusion, in the legal sense, is generally only applicable in antitrust cases. Meanwhile, the prosecutors in the Manafort case have told the judge that they may not even utter the word Russia in what is expected to be a three-week trial. Instead, they are focusing on Manafort’s financial crimes, including bank fraud and tax evasion.

It often happens that law enforcement agents will start out investigating one crime and end up finding others.

Robert Mueller’s jurisdictional mandate from Deputy Attorney General Rod Rosenstein authorizes the special counsel to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation.” But prosecutors aren’t going to ignore financial crimes they uncover while investigating Russian-Trump campaign links.

Indeed, it often happens that law enforcement agents will start out investigating one crime and end up finding others. Provided the evidence of the other crimes rises to a level that would support a charges, prosecutors are generally perfectly content to bring such charges, even in lieu of the charges they originally investigated or contemplated bringing.

Relying on less sexy crimes is not, however, an indication that Mueller’s investigation is faltering or, as the president has repeatedly claimed, a “witch hunt.” Indeed, several other Mueller targets have pleaded guilty to crimes that do not seem to directly involve Russian collusion. Both former Trump campaign deputy Rick Gates and former national security advisor Michael Flynn pleaded guilty to charges arising out of lies they told to federal investigators. Gates was initially charged with financial crimes, but many of those charges were dropped in exchange for pleading guilty to lying to the FBI as well as conspiracy to defraud the United States as a result of participating in financial crimes with Manafort.

I can attest to the fact that one of the frustrations for police and prosecutors alike is that we often have a strong sense of who within our jurisdiction is committing the most serious crimes, whether they be financial crimes, large scale drug operations, major gun runners or repeat violent offenders. But we don’t always have sufficient evidence to arrest the major offenders for the most serious crimes they have committed.

For example, we may attempt to make an undercover drug buy from a known killer in order to take him down with a narcotics charge. Putting violent offenders in prison for drug offenses protect the community just as effectively as convicting those same offenders for crimes of violence.

The same holds true in the white-collar arena. Prosecutors may seize upon the low-hanging fruit — bank fraud, tax evasion etc. — in an attempt to hold financial fraud kingpins accountable and to punish them for at least some of their criminal shenanigans. This is a variation on the famous story of how Al Capone ultimately was taken down with tax evasion charges.

Which brings us back Mueller. No criminal fruit seems to hang lower than Manafort’s. His financial crimes were so plentiful and so brazen, it’s not surprising that these are some of the first charges brought by Mueller’s team. It’s certainly also true that financial crimes can be evidence of collusion. For example, if Russia was paying Manafort in exchange for his assistance lobbying Trump on behalf of pro-Russian policies. But there is not yet an obvious connection between Manafort’s charges and Russian connections with the Trump campaign — at least not publicly.

It’s an open question whether Manafort will ultimately be charged for any conduct that may have involved Russia while he was Trump’s campaign manager. (Manafort is also pending trial in DC federal court for yet more financial crimes.) It could be that Manafort will ultimately face a hat trick of indictments. Moreover, it remains an open question as to whether other members of the Trump campaign, or Trump himself, will be charged with crimes like conspiracy for working with Russia to impact the presidential election or obstruct justice by covering up Russian contacts.

It is also possible (though perhaps not likely) that Mueller will split the baby, so to speak, by bringing charges for financial crimes he uncovered during his investigation but author a report to Congress detailing evidence he uncovered of Russian collusion.

But whatever happens, it seems clear that the investigation into Manafort’s time as Trump’s campaign manager produced strong evidence of financial crimes that serve as the basis of his current prosecution. This conclusion is supported by the fact that Judge T.S. Ellis III denied Manafort’s motion to dismiss the charges on the ground that Mueller exceeded his jurisdictional mandate. Specifically, Ellis ruled that Mueller’s team “followed the money paid by pro-Russian officials” to Manafort and that such an investigative path fell squarely within Mueller’s authority.

In this context, the prosecution of Manafort seems not only appropriate but necessary, as prosecutors should never forgo a viable prosecution for fear of criticism, especially when that criticism is the result of political ideology or affiliation.

Glenn Kirschner is a former federal prosecutor. He recently retired after serving as an U.S. Army JAG for more than six years and an assistant U.S. attorney for the District of Columbia for 24 years.