After months of public speculation about how Paul Manafort would defend himself against the charges lodged by Robert Mueller’s prosecution team, we now know what the strategy will be: blame Rick Gates. As prosecutors, we’ve seen this approach many times at trial. The bad news for Manafort is there is a fairly well-established playbook for the “blame the cooperator” defense, and it rarely works – for good reason.
People commonly misunderstand how central the cooperating witness is to real-world criminal prosecutions. People want every case to be like TV: solve the case through high-tech forensics like fingerprints or ballistics or blood spatters. The problem is those cases are open and shut. If you’ve got a DNA hit, the guy is taking a guilty plea.
There are good reasons why real-world cases, federal ones in particular, are cooperator-heavy. Federal cases often focus on criminal organizations, conspiracies and schemes, as opposed to one-time events such as muggings or assaults (which more often end up in state court). Typically, the best way to penetrate a closed or secretive criminal organization is by flipping somebody on the inside who can act as a guide. And you can’t bring down the mafia or a drug cartel or an insider trading ring with choir boys as witnesses.
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Not only do people underestimate how common cooperators are, they just don’t like cooperators. It goes back to elementary school. Nobody likes a tattletale. That’s why the list of pejorative terms for cooperating witnesses is so long, including: “rats,” “snitches,” “turncoats.”
Gates undoubtedly will be the most important witness in the Manafort trial. He is the only true cooperator (five others have immunity, which suggests they had some very marginal potential criminal exposure but not enough culpability to require them to plead guilty and cut a deal). The defense team now has announced unequivocally that they will train all guns on Gates. The defense, it seems, will be that Gates actually masterminded the scheme to lie to banks and the IRS in order to hide tens of millions of dollars in income made through consulting with shady pro-Russia Ukrainian politicians —with Manafort remaining blissfully unaware while jetting from one vacation palace to another collecting antiques while wearing his $20,000 watch and the now-infamous ostrich jacket.
Looking ahead to the testimony of Gates, count on the defense going after him on several fronts. While each of these lines of attack hold some jury appeal, ultimately the prosecution will have a robust comeback which, in many instances, will largely serve to further prove Manafort’s guilt.
1. The defense attack: Gates is an admitted criminal. The prosecution response: Yes he is. In fact, he pleaded guilty. That’s part of his deal with us. He admitted all of his crimes. And you know who he committed those crimes for, and with? His boss, the guy who ran the show, the guy who got really rich off all this - Paul Manafort.
2. The defense attack: Gates is getting a sweetheart deal from the prosecutors for lying about Manafort. The prosecution response: The only “deal” a cooperator gets is that he pleads guilty to every crime he has committed, provides all his information to the prosecution, and testifies truthfully. If he does all that, then at the end of the case the prosecution will write a letter to the sentencing judge describing all of Gates’s crimes and all of his cooperation. The prosecution does not promise Gates any particular sentence. The sentence is entirely up to the judge (and this judge, Judge T.S. Ellis, clearly is no pushover). So, sure, Gates is cooperating not out of altruism, but because he wants a better sentence. But this is no sweetheart deal. And the only way he blows the deal for himself is if he lies to the prosecution. So it is in Gates’s own self-interest to tell the truth about Manafort, about himself, and about anybody else.
3. The defense attack: Gates is a dirtbag and you should hate him. The prosecution response: Maybe. But guess who chose Rick Gates? Not Robert Mueller. Not the prosecution team in the courtroom in Virginia. Paul Manafort chose Rick Gates. He chose Rick Gates when they went into business together, when they made millions together, and when they committed fraud together. And why did he choose Rick Gates? Because he needed someone willing to do his dirty business with him and there’s no question that Gates was willing to do it. Gates has admitted that under oath. It doesn’t matter if you like Rick Gates. All that matters is if you believe him. Just look at all the other evidence—testimony from other witnesses, emails, financial records—that backs him up.
There is much yet to be determined. How will Gates come across to the jury? All cooperators are sleazy to an extent; they’re all admitted criminals. The best cooperators are the most straightforward ones, the ones who create no drama. The best cooperators never stretch the truth, aren’t argumentative with the defense attorneys, and remain even-keeled on the stand. The more troublesome cooperators - and we’ve dealt with some of these - come off to the jury as arrogant, self-righteous about their conduct, and argumentative.
Our bet is Gates will be effectively boring. In the world of cooperators, Gates is fairly mundane and inoffensive. We’ve put cooperators on the stand who have committed multiple murders. One cooperator beat somebody over the head with a baseball bat; another shot somebody in the back of the head as the victim sat in the front passenger seat of a car; another bashed in a victim’s head with a shovel before dumping him in a freshly dug grave in the woods. We’ve banked cases on cooperators who have trafficked millions of dollars in drugs. We’ve called cooperators who have cheated on their wives, stolen from their own parents, neglected their children. One cooperator even admitted he shot somebody else’s dog to get even with the owner (that one went over quite poorly with the jury). Compared to these guys, Gates is a wonderfully boring paper-pusher.
The showdown is coming: Manafort’s attorneys versus the turncoat Rick Gates. Expect the defense attorneys to wave their hands in the air and feign outrage and tell the jury that Gates is a liar, a con man and a villain. But don’t expect it to succeed.
