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Commentary: Manafort indictment begins complicated story

By Noah Feldman
Bloomberg View

So now we know how this game of Clue starts: Paul Manafort with a wire transfer in the parlor. But Democrats who are getting revved up for special counsel Robert Mueller’s investigation to follow the money from Russia to Donald Trump’s campaign shouldn’t get too excited, at least not yet.

The indictment of Manafort and his associate Rick Gates means that this investigation is going deep into the weeds. Once it’s there, it could become permanently entangled with arcane bank accounts, front companies with weird names and pro-Russian Ukrainians with even more unpronounceable names.

The problem with the Manafort route, for the anti-Trump crowd, is that it may be extremely difficult to craft a clear, publicly digestible narrative of collusion between Russia and the Trump campaign.

Sure, it’s conceivable that under threat of prison, Manafort or Gates or both could testify that they carried messages from Russian officials and delivered them to Trump himself, or that they took messages back to the Russians.

If the messages concerned, say, hacking the Democratic National Committee, that would be criminal collusion. And the parallel to the Watergate break-in, coordinated by President Richard Nixon’s campaign against the DNC’s offices, might be sufficiently striking for the public to grasp the narrative.

But it’s far more likely that Manafort and Gates won’t testify to any such thing. The wire transfers and lobbying that form the basis for the indictment date back to 2008, long before there was a Trump campaign for president. Clearly illegal if described accurately, they could be used to pressure Manafort and Gates.

Yet on their own, the transfers have no direct link to campaign collusion. They can at most show that the pair had connections to suspicious pro-Russian Ukrainians who could then be connected to Vladimir Putin’s administration. And we already knew of these ties.

As for the alternative Mueller angle, namely Trump’s possible obstruction of justice in firing FBI Director James Comey, there is no obvious Manafort-Gates connection unless Trump is supposed to have been trying to protect Manafort from Comey, which seems unlikely.

Mueller’s team of highly sophisticated government lawyers has the expertise, intelligence and ability to track connections between Russia and the Trump campaign. The question is, will the trail be so circuitous that it can’t be easily explained to the public?

If not, then Trump’s strategy for self-defense is obvious. As he has already done, Trump will begin by denying any collusion. If Manafort or Gates or others in the campaign are shown to have had connections with Russia, he will say that such connections are innocent, predate the campaign and prove nothing. Meanwhile, in his own tweets and through proxies, Trump will continue to try to change the subject by talking about Hillary Clinton, uranium and who paid for the opposition-research dossier compiled against him.

Donald J. Trump @realDonaldTrump Sorry, but this is years ago, before Paul Manafort was part of the Trump campaign. But why aren’t Crooked Hillary & the Dems the focus????? Twitter: Donald J. Trump on Twitter

If Mueller’s narrative is complicated and involves many steps and Russian names we’ve otherwise never heard, the effect of Trump’s obfuscation is likely to be heightened. After all, Trump has already shown he can produce an incoherent narrative that mentions Democrats as well as little-known Russians.

The ultimate effect might be that, even if Mueller produces criminal convictions of Trump campaign staff and an eventual report detailing campaign wrongdoing, the Republicans can maintain the cover they need to allow Trump to continue in office without a serious threat of impeachment.

On some level, Mueller’s team might justifiably say they don’t care how Trump responds or what the eventual outcome of the investigation is. They were chosen to perform specific tasks, namely investigate collusion between the campaign and Russia. If that is complicated, so be it. Their job isn’t to get Trump impeached, but to find the truth.

That is all accurate. Yet given that Trump appears to see himself locked in combat with Mueller and his team, that interpretation of their function may be naive.

If Trump sees the outcome of the struggle as binary — he wins or Mueller does — that could easily become a self-fulfilling prophecy: Trump wins if he walks away from Mueller’s investigation personally untouched, with no impeachment proceedings.

The precedent for the president-prosecutor war lies both in Watergate and in the Kenneth Starr-Bill Clinton battle. Archibald Cox and Leon Jaworski (in tag team) beat Nixon, who resigned because he didn’t want to be impeached. Clinton was impeached and bruised; yet because the Senate acquitted him, he won and Starr lost.

Looking at both examples, Trump could reasonably conclude that his best approach is to tough it out. The Manafort story raises the possibility that he could survive.

The upshot is that to win in the real world, Mueller and his team need more than just the truth. They need a clear narrative that everyone can follow.

They can’t make up a story that isn’t there. That obligation to stick with the truth is a major constraint on their options.

The Manafort and Gates indictments show the game’s afoot. Now we will need to keep an eye on whether the game can be made comprehensible to the American people.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg View editorial board or Bloomberg LP and its owners.

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