1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2 3 4 5 6 7 8 9 United States of America, ) Criminal Action ) No. 17-CR-201 Plaintiff, ) ) vs. ) Public Transcript ) Of Sealed Hearing Paul Manafort, Jr., ) ) Washington, DC Defendant. ) Date: February 4, 2019 ) Time: 10:38 a.m. ___________________________________________________________ 11 TRANSCRIPT OF SEALED HEARING HELD BEFORE THE HONORABLE JUDGE AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE ____________________________________________________________ 12 A P P E A R A N C E S 10 13 For Plaintiff: ANDREW WEISSMANN GREG D. ANDRES JEANNIE SCLAFANI RHEE U.S. Department of Justice Special Counsel's office 950 Pennsylvania Avenue NW Washington, D.C. 20530 For Defendant: KEVIN M. DOWNING 815 Connecticut Avenue, N.W. Suite 730 Washington, D.C. 20006 (202) 754-1992 E-mail: Kevindowning@kdowninglaw.com 14 15 16 17 18 19 20 21 22 23 24 25 THOMAS EDWARD ZEHNLE Law Office of Thomas E. Zehnle 601 New Jersey Avenue, NW Suite 620 Washington, DC 20001 (202) 368-4668 E-mail: Tzehnle@milchev.com 2 1 RICHARD WILLIAM WESTLING Epstein Becker & Green, P.C. 1227 25th Street, NW Suite 700 Washington, DC 20037 (202) 861-1868 e-mail: Rwestling@ebglaw.com 2 3 4 5 Also Present: Michael Ficht Renee Michael Court Reporter: Janice E. Dickman, RMR, CRR Official Court Reporter United States Courthouse, Room 6523 333 Constitution Avenue, NW Washington, DC 20001 202-354-3267 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * * * 3 1 2 3 THE COURTROOM DEPUTY: This is a sealed proceeding, and the courtroom has been locked. We have Case Number 17-201-1, the United States of 4 America v. Paul J. Manafort, Jr. 5 the courtroom, Your Honor. 6 7 Good morning, Your Honor. Mr. Manafort is present in Will counsel for the parties please approach the lectern, identify yourself for the record. 8 MR. WEISSMANN: 9 For the Government, Andrew Weissmann, Greg Andres, 10 Good morning, Your Honor. Mike Ficht, Renee Michael, Jeannie Rhee, and Jeff Weiland. 11 THE COURT: 12 And I take it the other gentlemen in the first row 13 All right. Good morning. are part of your team? 14 MR. WEISSMANN: 15 THE COURT: 16 MR. WESTLING: 17 Richard Westling, Thomas Zehnle, Kevin Downing for 18 19 20 Mr. Manafort. Yes, they are. Okay. Thank you. Good morning, Your Honor. And Tim Wang is with us as our paralegal. THE COURT: Okay. And who is the person seated in the front row? 21 THE COURTROOM DEPUTY: 22 THE COURT: 23 24 25 Okay. U.S. marshal. All right. Welcome. Just wanted to make sure everybody who is here is supposed to be here. Before we get started, I wanted to take up a preliminary matter that I meant to take up last time and forgot 4 1 2 because we had so much else on our plate. Right now, we have the sentencing memoranda scheduled 3 to be filed on February 22nd, and the sentencing on March 5th. 4 And I've looked at my calendar, and the week before those two 5 events is filled with a trial. 6 that's going to give me an adequate amount of time to review 7 what I expect is going to be a lengthy submission on at least 8 one side, and maybe both. 9 to move the sentencing until March -- I think I was looking at 10 And I'm not comfortable that And so, therefore, I would propose the 12th or 13th. 11 Does anybody have a problem with that? 12 MR. WEISSMANN: 13 THE COURT: 14 Wednesday of that week, right? No, Your Honor. All right. 15 THE COURTROOM DEPUTY: 16 THE COURT: 17 MR. WESTLING: 18 THE COURT: 19 MR. WESTLING: 20 electronic devices out and check. That's the Tuesday and Correct, Your Honor. Do you have -I'm not sure we know, Your Honor. You don't know whether you have a -- 21 THE COURT: 22 MR. WESTLING: 23 THE COURT: Well, meaning, we would have to get Oh. Which we're welcome to do, but -- Okay. Well, if you can, get back to 24 Mr. Haley after you get back to chambers -- or, chambers -- 25 wherever you're going. Guess you're not coming to chambers. I 5 1 2 don't have room for all of you. But if you could communicate if you have problems 3 with any of the dates at the -- I think the Monday, Tuesday, 4 Wednesday of that week, that would be helpful, and then I'll 5 issue an order. 6 But I'm going to reschedule it. All right. This morning I'm going to organize myself 7 by the issues the way they were numbered in the initial 8 declaration. 9 numbered the five issues into different orders. It was great because in every pleading, you all So I can't 10 really call them Issue No. 1 and Issue No. 2, but that's the 11 template I'm going to use. 12 going to hear from both sides on each issue before I move on to 13 the next issue. 14 And what I'm going to do is, I'm I think we've arranged to have people wired for 15 sound, or at least seated in front of a working microphone so 16 that you don't have to parade back and forth to the lectern. 17 And I think it will just be more efficient that way. 18 Before I get into the issues, I just want to make 19 sure that we're all agreed about certain things. 20 that we're all agreed that the burden of proving any facts 21 which are going to be relied upon as part of the sentencing 22 guidelines determination, it's the Government's burden to prove 23 them by a preponderance of the evidence. 24 Is that everybody's understanding? 25 MR. WESTLING: Yes, Your Honor. I believe 6 1 MR. WEISSMANN: 2 THE COURT: Yes. Okay. And I don't think that it has to 3 be an actionable false statement under ยง 1001, or a violation 4 of the perjury statute to fall within the broad scope of what 5 could violate the agreement. 6 But, what is your position about whether the Office 7 of Special Counsel has to prove the elements of one of those 8 offenses, albeit by a preponderance, for me to deem his 9 response on one of these issues to be an intentional lie with 10 whatever sentencing consequences that could ensue? 11 You can't do it sitting down? 12 MR. WEISSMANN: 13 THE COURT: 14 MR. WEISSMANN: 15 THE COURT: 16 You're permitted to sit and use those -- back and forth. MR. WEISSMANN: 18 THE COURT: 19 MR. ANDRES: 21 That's fine. -- just because we're going to be going 17 20 Am I permitted to sit? That's fine. Yeah. I'm just used to -- Me, too. Next time we don't stand, we're going to get in trouble. THE COURT: Well, you know, it just seemed like there 22 would be a lot of popping up and down. 23 purposes of today, I'm happy to have you seated. 24 25 MR. WEISSMANN: So for this, for So the Government's view is that it is not necessary for us to prove all of the elements of 1001 -- 7 1 2 THE COURT: I don't think you're actually using the microphone. 3 MR. WEISSMANN: 4 THE COURT: 5 MR. WEISSMANN: Okay. Is that -- Much better. So I don't think we need to prove the 6 elements. I think we have, but I don't think it's necessary. 7 From our perspective, what's before the Court today is, really, 8 what would the Court find of use at sentencing? 9 would be relevant to the Court if the defendant made false Whether it 10 statements either to the government or to the grand jury, 11 whether it was something -- 12 THE COURT: All right. We're going to have you 13 coming back and forth. 14 mics on your table, or the other mics, was so that -- 15 16 The whole point of putting the body THE COURTROOM DEPUTY: It's got to be closer to your mouth. 17 THE COURT: 18 Are you going to be arguing all of these? 19 MR. WEISSMANN: 20 THE COURT: 21 -- you got to use them. Four of the five. All right. Well, why don't you clip that right there. 22 MR. WEISSMANN: Okay. 23 THE COURT: 24 THE COURTROOM DEPUTY: Near the knot. 25 MR. WEISSMANN: How's that? All right. Okay. Thank you. 8 1 THE COURT: It's great. 2 MR. WEISSMANN: 3 THE COURT: Okay. If you have a trial in this courtroom, 4 you get to do that for your opening and closing. 5 want to get used to it. 6 MR. WEISSMANN: 7 THE COURT: 8 MR. WEISSMANN: 9 So you might Okay. All right? Okay. So, as the Court heard, I don't think we need to prove all the technical elements, 10 although I don't think, as a practical matter, that should be 11 an issue here. 12 it's required. I think we have proved that, but I don't think 13 I think that the Court, in terms of sentencing, could 14 find it relevant to a variety of issues, if the Court concluded 15 that the defendant, after signing an agreement, made a false 16 statement either to -- just one, to the government or to the 17 grand jury. 18 than one that would be relevant or not so relevant. 19 don't think it's necessary for us to prove perjury by a 20 preponderance, or a 1001 violation by a preponderance. The Court could also find that there were more 21 THE COURT: 22 MR. WEISSMANN: But I Well, does materiality matter? I don't think it does. Because I 23 think from the Court's perspective, you could find -- I think 24 that could be a factor that the Court could consider, but I 25 don't think it's necessary in the way it would be for a 9 1 criminal violation. 2 It could be relevant in this way: 3 that, at the end of the day, he made a false statement 4 intentionally, but it was about, you know, his favorite color, 5 or something that's just not that important, you may find that, 6 yes, that happened, but it's not going to really affect the 7 sentence that I think is appropriate. 8 9 10 If you thought So I think it is a factor for the Court, but I don't think it's necessary in the way it would be for an element of a crime. 11 THE COURT: All right. 12 MR. WESTLING: What do you think about that? Well, Your Honor, I guess, first, I 13 would start by saying that I think, you know, this issue was 14 really brought up by the special counsel at the outset, 15 claiming that crimes had been committed. 16 THE COURT: Correct. 17 MR. WESTLING: And so I'm surprised that there 18 wouldn't be a sense that they had established the elements of 19 the crimes they allegedly say were committed. 20 I think the another point, to the Court's comment 21 just a second ago, was that we obviously do think materiality 22 is pretty relevant here. 23 happened, the nature of cooperation sessions, sort of the ebb 24 and flow of those sessions in general, it seems to me the 25 question really has to be, was there an intent to deceive in I mean, given the nature of what 10 1 some way? 2 simply a mistake? 3 4 Was that the goal of what was happening, or was this And so we believe the standard should be the one that comes from those statutes. 5 THE COURT: Well, I think they certainly have taken 6 on the mantle of establishing that these were intentionalized. 7 And I think if they aren't intentional, then they wouldn't bear 8 on acceptance of responsibility. 9 I think the government agrees with that. 10 MR. WEISSMANN: 11 THE COURT: Absolutely. Okay. Well, let's get into the 12 individual -- do you want to say something else about what we 13 just talked about? 14 MR. WEISSMANN: No. It was on something else. 15 I know that the Court's normal practice is to ask a 16 lot of questions and give us an opportunity at the end, if 17 there's something we wanted to say. 18 In this situation, there were two preliminary matters 19 that I thought would be useful, but I don't know if the Court 20 would vary from its normal practice. 21 THE COURT: Well, the practice is kind of a mix. For 22 some of them, I'm just going to start by asking you, and then 23 ask specific questions; then others, I only have narrow 24 questions. 25 get started, you're welcome to say it. But, if there's something you want to say before we 11 1 MR. WEISSMANN: Great. 2 wanted to make to the Court. 3 them. 4 There were two points that I There are a number of subparts to But, the first point has to do with sort of the 5 context in which we operated at the time that we entered into 6 the agreement. 7 entered into just shortly before the trial was to commence 8 before this Court, and it was after three proffer sessions. 9 And then, of course, there were many debriefings after that. 10 11 As the Court will recall, the agreement was And a couple things about that timing that are relevant. One, at the end of the third proffer session, before 12 entering into the agreement, we had made clear to the defense 13 that we were willing to go forward. 14 limited opportunity, and yet the need to make a decision 15 because of the eminent trial, we wanted to make clear to the 16 defense that, of course, we were going in with good faith. 17 But, that given the But we could not say at that point that we either 18 could say the defendant was being truthful or that the 19 defendant was going to be able to meet the substantial 20 assistance prong. 21 In other words, two parts of the agreement. Of course, I think everyone was hopeful that all of 22 that would be met. 23 defense that they weren't being misled in any way as to what we 24 were thinking. 25 But we wanted to make it clear to the And the second component of that is, I think, 12 1 something unusual -- there were two factors that were unusual 2 in this case compared to, I think, the cases that all of us at 3 this table have had in the past. 4 One was, there's enormous interest in what I will 5 call -- for lack of a better term -- the intelligence that 6 could be gathered from having a cooperating witness in this 7 particular investigation. 8 Government agreeing to have Mr. Manafort cooperate, even though 9 it was after a trial. And that would account for the Because that's certainly an -- not -- 10 not -- it's not that that never happens, but it's more 11 atypical. 12 13 By the same token, there was an unusual factor -- the second unusual factor, which was 14 15 16 the normal motives and incentives that are built into a cooperation agreement. 17 So those were -- to give the Court sort of the lay of 18 the land at the time that the -- at least from the Government's 19 perspective -- when we were entering into an agreement. 20 decision, at the end of the day, that the Government made to -- 21 that we believe that the defendant was lying to us had a number 22 of different components. 23 The As the Court is aware from the Gates resolution, the 24 Government is aware that many cooperators have a rocky start, 25 and that part of our job and part of defense counsel's job -- 13 1 many of us at this table have been defense counsel -- 2 understand that this can be an ongoing process, and we worked 3 with defense counsel. 4 And, by the way, nothing that is happening here today 5 has anything to do with our understanding and belief that 6 defense counsel has operated completely in trying to make sure 7 that this would work. 8 9 And with Mr. Gates, we also wanted to make sure that we could get information, and we thought that there was -- I 10 think there was certainly a significant issue. 11 with it by having the defendant plead to something in addition 12 to take -- to have the ramification for it. 13 show, I think, an example of wanting the intelligence, but 14 dealing with what we considered to be, you know, unacceptable 15 behavior from the Government, particularly from somebody whose 16 information we would rely on, and potentially ask the jury to 17 rely on. 18 And we dealt But that is to Here, a number of factors went into the decision to 19 file the joint status report in November, with our view that 20 the defendant has lied. 21 evidence because, obviously, that's something that it would be 22 relevant to the issue that's now moot, about whether we 23 breached in good faith. 24 Court to just take that on faith, that we reevaluated demeanor. 25 But, that obviously was a factor. I'm going to separate out demeanor But, it's obviously very hard for the But, I'm going to try and 14 1 focus on things that are in the record before you, in addition 2 to that. 3 One is the importance of the matters that, if you 4 look at the totality, the examples that were given to you are 5 ones where we think that the subject matter is something that 6 is -- that is not likely to have been forgotten, where somebody 7 would just misremember. 8 possible for -- if the person forgot, and that their recollect 9 was refreshed? 10 Obviously, that's the issue, is, is it Another factor is the recency of events; is it 11 something that happened long ago versus recently? So the -- 12 what I'll call the second issue, which is the Mr. Kilimnik -- 13 I'm not going to argue each one, I'm just giving it as an 14 example -- Mr. Kilimnik, and whether he conspired with 15 Mr. Manafort. 16 think, 30 days -- 32 days before the interview. That is something where the plea was only, I 17 So, again, we're not talking about something long in 18 the past, or, to take the defendant's position, something that 19 happened in the heat of a campaign, where there was so many 20 other things going on. 21 There's the issue that we evaluated in terms of the 22 changing stories, that things -- that the story kept on 23 evolving in a way that did not seem consistent to us with just 24 a better recollection, more details being filled in, as opposed 25 to fundamental changes. There was inconsistency with other 15 1 evidence. 2 The $125,000 payment is just one example of that. There was evaluating the denial of what the defendant 3 had said to us. 4 in, again, going back to the -- whether Mr. Kilimnik conspired 5 with Mr. Manafort, when Mr. Manafort ultimately recanted and 6 said: 7 never said what you said I said. 8 9 So one thing that the Court may have noted is Yes, I did, he also said: You were just confused. I And to us, that was just so emblematic because, of course, everyone in the room -- defense counsel taking notes, 10 and the Government taking notes -- was there. 11 a fact that was not the case. 12 the only evidence in the record. 13 to that fact. 14 So, we knew for And I should point out, that's There's not contrary evidence There was the level of detail that was given. So 15 that in recounting a story to us that we concluded was false, 16 we looked at the amount of detail that was given by 17 Mr. Manafort in recounting that story. 18 There was the fact that Mr. Manafort would at times, 19 in other situations, say when he was unsure, and say: 20 sure. 21 Whereas the example that we gave to the Court were ones where 22 that didn't happen -- almost invariably, not exclusively. 23 I'm not I need to refresh my recollection, or, I don't recall. There also is, of course, the defendant's history 24 that -- that we considered, although I don't think -- for some 25 of us, it wasn't even necessary to get to that, but it was 16 1 something that was also a factor. 2 THE COURT: What do you mean by that? 3 MR. WEISSMANN: In other words, that the defendant 4 coming into this had lied to the Department of Justice, had 5 lied to banks, had lied to his own defense counsel, had 6 violated court orders, had lied to his tax preparers, had lied 7 to his bookkeepers. 8 9 In other words, there were so many lies. Now, that doesn't -- just to make sure the Court understands, that does not mean that a cooperator can't 10 understand and cooperate fully and be a successful cooperator 11 and the incentives of the cooperation agreement can still work. 12 But, it does mean that the Government should be, I think, extra 13 vigilant to make sure and to test what it is that the defendant 14 is saying. 15 Because there you could imagine having not a 16 different standard, but sort of more scrutiny in this situation 17 than you would where somebody had one aberrant-type of behavior 18 and got themselves in criminal trouble, versus somebody who had 19 an habitual problem, particularly when it comes to truth- 20 telling. 21 And then, I think, finally, and probably most 22 important, was the number of instances. 23 of, what are the odds that all of this was a mistake, that it 24 just happened over and over and over again? 25 The fact that, sort And to take -- to go back to the example of 17 1 Mr. Manafort's saying to us: 2 previously. 3 agreement, where there are benefits to be had by cooperating, 4 there are disincentives; because if you're caught lying, that 5 you can have serious consequences. 6 incentives were not working -- were not working adequately. 7 So, all of that factored into why we were making this decision. 8 At the end of the day, we also, having then talked to 9 defense counsel, and also still, to today, there is no contrary What that showed is that the incentives of the 10 evidence. 11 and asked: 12 other evidence? 13 Well, that's not what I said It told us that those In other words, having talked to defense counsel, Is there something we are missing? Is there some I think the Court and we are in the same position, 14 where there is argument that has been made by defense counsel. 15 And we're not in any way saying that that shouldn't be 16 considered, but there isn't evidence that's been submitted. 17 course, we still have the burden. 18 because there's no contrary evidence means that we met our 19 burden, but there is nothing on the other side weighing against 20 what it is that's in the record. 21 Of I'm not saying that just And then I just wanted to briefly -- my second -- 22 this is all in the context of sort of one point. I have one 23 other point, which is I'd wanted to address something that was 24 in the defense submission about -- this is going to be my 25 phrasing, it's not the defense phrasing; they were more 18 1 polite -- but that we proceeded in a sort of "gotcha" mode. 2 other words, that we didn't give the defendant the evidence to 3 look at first, and then talk about it. 4 In And the idea being, is it possible that this was just 5 some information that when the defendant saw it, it refreshed 6 his recollection? 7 remember? 8 It happened with Mr. Manafort. 9 instances where he would look at things and it did refresh 10 And until he saw it, he just didn't And we're very cognizant that happens all the time. Like everyone else, there were recollection. 11 That's particularly true when it comes to time, 12 place, names, things like that. That is very, very common. 13 And it certainly happened here. But, I wanted to address that 14 that's not -- this is an unusual case. 15 case. 16 the volume of evidence that the defendant had. This is an unusual Not because we did that, it's an unusual case because of 17 As the Court knows, there was a trial in the Eastern 18 District of Virginia. 19 discovery order in this case. 20 of information was available to the defendant. 21 the submissions having to do with bail conditions and -- or, 22 prison location, what's in the record is that the defendant, on 23 tape, in prison, says yes, he has been through all of that 24 discovery. 25 And as the Court knows, there was a There, the vast, vast majority And as one of So, for one example of that, all of the Gates 302s 19 1 that were extant in September of last year were something that 2 had been disclosed to the defendant. 3 very well aware of what Mr. Gates had said about sharing of 4 polling data, and that it was something that was not -- not 5 simply a matter of 6 of -- So, the defendant was . And it sort 7 8 . 9 So what's unusual in this case is how much 10 information the defendant had. 11 the Government to not provide all information to the defense, 12 because one of our jobs is to make sure the defendant is 13 telling us the truth, to the best we can. 14 lie detectors, but it is appropriate to not share everything. 15 It is entirely appropriate for We're obviously not Here, there is a very, very small category of things 16 that as we go through the different five areas, and the 17 Judge -- the Court asks questions to us, I will try and point 18 out where those instances are, because most of it is something 19 where the defendants had it. 20 defendant -- even in the instances where we didn't share 21 something, the defendant had it. 22 we had it. 23 And the issue is more the He just didn't know whether So an example of that would be, the 24 questions in 2018 is something where we got the information, of 25 course the defendant had it. And that is information that we 20 1 had not -- that's an instance where information had not been 2 provided to the defense. 3 at the time of the Eastern District of Virginia trial. 4 And, in fact, I'm not sure we had it I also wanted to point out that with respect to 5 information that had -- whether information had been shared or 6 not is entirely irrelevant to some of these areas. 7 instance, whether Mr. Manafort conspired with Mr. Kilimnik, 8 there is no -- that was not an example, like, the defense could 9 say: So, for Well, why weren't we given information? 10 They had the information about the underlying crime. 11 They had the information about what Mr. Manafort had said 12 previously. 13 an instance where the Government could in any way be faulted 14 for what we shared and didn't share. 15 That was done just a month before. So, that's not Another instance would be where -- this wasn't an 16 example of we had information and didn't share it, but, rather, 17 having heard the defendant's explanation, we then went out to 18 check it. 19 example of that, where in light of what the defendant said, we 20 went out and checked. 21 So, the $125,000 payment to is a good And that information, actually, you can see in the 22 record. Because if the Court looks at the dates of the 23 interviews of Mr. 24 they're happening contemporaneously. 25 to -- we actually had fronted to the defense the issue of that and Mr. , you will see that Because we are trying 21 1 this doesn't make sense, that this is what the records are 2 showing, and then we got another version. 3 that still doesn't make sense. 4 digging. 5 And we were, like, And so we decided to do more So this wasn't an example of we, somehow, had all the 6 information and we were trying to play a game of, like, 7 "gotcha," why can't you tell us what -- we know something you 8 don't, and we want to rip up the agreement. 9 trying to figure out what was going on there. 10 that by following the time period. 11 And that's it. 12 THE COURT: 13 MR. WEISSMANN: 14 THE COURT: We were actually And you can see Okay. Thank you very much. All right. Now, I think in some ways 15 that was more of the summing-up that I might have anticipated 16 hearing at the end; therefore, if I ask you at the end if you 17 have anything else to say, it will be -- "else" will be the 18 operative word in that sentence. 19 But I don't think it's fair to the defense, who may 20 or may not have been prepared to orient me at the start, to not 21 give you the opportunity now that they've had the opportunity. 22 So if there's some basic principles you would like me 23 to keep in mind while we talk about each of these individual 24 instances, I'm happy to hear them. 25 on what some of your themes are, and I'm familiar with what I mean, I know he's touched 22 1 some of your themes are. 2 give me some guideposts to keep in mind, as he just did, I'm 3 happy to hear them. 4 MR. WESTLING: But, you know, if you would like to Well, I think, briefly, Your Honor, a 5 couple of things. 6 already in some of the pleadings. 7 I mean -- and I don't mean to repeat what's I may touch on some of that. But, I mean, obviously, Mr. Weissmann describes, I 8 think somewhat accurately, the process leading up to the plea, 9 the pressure that everyone was under. Pressure that, frankly, 10 didn't relieve any time after the plea. 11 of pressure from the Government to: 12 cooperation sessions going. 13 We understood that. That there was a lot Let's get these But everybody was working, I 14 think, with a limited amount of time to be as prepared as we 15 all would have liked to be each day before we headed in. 16 Government did its best to try to say: 17 But, you know, for us to really be in any way useful, it often 18 required trips to the jail that night to try to get 19 Mr. Manafort oriented so we could come back the next morning. 20 The This will be the topic. I think the situation that we want to be sure the 21 Court is aware of -- we know that it is -- is just the 22 challenges of anyone who is, you know, facing some of the 23 physical and emotional challenges Mr. Manafort was; the 24 situation of his confinement, the focus, really for the last 25 months before this, really on just the trial issues on the 23 1 case, and then shifting, almost immediately, to: 2 the world to everything you remember over the last several 3 years, and well before that. 4 Let's open I think we just want to be clear -- I know we have in 5 our pleadings emphatically -- Mr. Manafort, you know, did his 6 best to answer the questions. 7 He did not lie in any way. We do think there's a number of areas where there is 8 still confusion between the parties about what was said, what 9 it meant. 10 We hope we'll have an opportunity to talk about that as we go through these issues today. 11 But, I think that -- you know, I'm struck, in 12 particular, by understanding we've always acknowledged the 13 Government's, you know, approach was not to play a game of 14 "gotcha," but there was a choice made in a number of cases to 15 ask about topics before documents were shared. 16 something went awry, there was a document to show why it was 17 untrue. 18 And then, when And I think there are different ways we all could 19 have done this. 20 Government, and we've acknowledged, you know, what we've seen 21 as their good faith in being here. 22 It's totally the prerogative of the But, clearly, you know, it was a challenging 23 situation for everyone. And I think the amount of the issues 24 we're left with today where there are supposed lies, compared 25 to, really, 12 days of interviews, more than 50 hours, plus 2 24 1 days in the grand jury, and in many cases, not core issues to 2 the things we spent most of our time talking about, simply, we 3 believe, is an important backdrop in determining whether 4 Mr. Manafort was in any way doing anything other than doing his 5 best to tell the truth. 6 And I think, you know, the last point that I would 7 make is that given that relatively small set of areas where 8 this occurred, whether even the allegations are being made, you 9 know, we note that there's not really a lot to explain. 10 There's no pattern, there's no clear motive that would suggest 11 someone who was trying to intentionally not share information. 12 And many of the more sensitive topics that we're 13 aware of from a -- all of us paying attention to what's gone in 14 the news cycle over the last many months, you know, are things 15 where these issues didn't come up, where there wasn't a 16 complaint about the information Mr. Manafort provided. 17 we think that's important context as we get started here today. 18 THE COURT: And so Do I have -- and I don't think I need 19 them for today, but I'm certain that what you just said is also 20 going to be a part of your acceptance of responsibility 21 argument and argument at sentencing. 22 Do I have the 302s from 12 days of interviews? Do I 23 have everything, or do I only have what was given to me because 24 it bore on the particular issues that I'm being asked to rule 25 on today? 25 1 MR. WEISSMANN: Judge, you do not have everything. 2 We are happy to give you the -- all of the 302s. 3 you -- you have, I think, the majority of them, but not all of 4 them. 5 THE COURT: Okay. We just gave And I don't know that -- if I need 6 them. 7 they should be a public part of any sentencing submission. 8 But, if you want me to put this in context of more that was 9 said, it helps to have it. 10 11 But, it's hard to assess -- and I certainly don't think MR. WEISSMANN: anything more than what you have, Your Honor. 12 THE COURT: 13 MR. WEISSMANN: 14 THE COURT: 15 And, of course, we don't have Okay. Okay. So -- I didn't know. I'm just letting the Court know. All right. Is there anything anybody else wants to say before we get started? 16 MR. WEISSMANN: 17 THE COURT: 18 With respect to the $125,000 payment by And thank you. All right. 19 20 No, Your Honor. , and called Firm A in the pleadings, at the direction of Entity B, the 21 , towards an unrelated debt owed by the 22 defendant to a law firm, you've already mentioned the name of 23 the law firm this morning. 24 firm is irrelevant to the rest of the conversation. 25 But, I think the name of the law So -- and as background, the Government has explained 26 1 to me that Mr. Manafort was involved in the establishment of 2 , getting the to hire , and he knew both 3 principals. 4 declaration and the 302s to be somewhat confusing, but I think 5 I do understand it now. 6 briefly start by summarizing what the specific allegations of 7 the falsehood are with respect to this one. 8 9 Initially, I found the description in the MR. WEISSMANN: But, I would be happy to have you Okay. So, I can go through what I think are key false statements. 10 One false statement is that the payment -- the 11 $125,000 payment that was made to the law firm was 12 reimbursement of a loan from Mr. Manafort to 13 their -- I can -- 14 THE COURT: 15 MR. WEISSMANN: And The first version? That's the first version. And 16 Exhibit 9, which is a 302 on September 20th of 2018, on page 6, 17 paragraph 2 has information where Mr. Manafort is conveying 18 that. 19 And what may help the Court is that what I think 20 Mr. Manafort was doing was lying about, essentially, where -- 21 what was the 22 then this is definitely an educated guess: 23 the actual -- what was really going on was that Mr. Manafort 24 was aware that there was a -- to put it charitably, a 25 . scheme where Mr. Because -- and But what we think was paying money back, 27 1 not to the 2 Mr. 3 , but to the head of the was holding the money for Mr. Mr. , and that . may -- may have, in turn, had that same 4 relationship, or similar relationship, with Mr. Manafort, 5 although that's not necessary to our argument. 6 And so in the first version, what it is, what I would 7 say is close to the truth, in the sense that there is -- there, 8 in fact -- if, in fact, Mr. 9 and Mr. Manafort had a similar arrangement, the -- that part was hidden from us, 10 and that was a lie, that this didn't come from that. 11 the reason for the payment. 12 But, it would be the case that Mr. owed 13 Mr. Manafort money; it's just that it was not a loan. 14 what was lied to about was hiding that 15 of that 16 That was Meaning, -- knowledge scheme. Version two, the false statement is that this is now 17 Mr. 18 Mr. Manafort -- paid money for past work he got for 19 Mr. Manafort, and that he was -- Mr. 20 this as money that he was paying because of work that he -- had 21 been obtained for him by Mr. Manafort. 22 saying that he -- this is according to was justifying And their subsidiary false statements, Mr. Manafort 23 said that Mr. told Mr. that he had a relationship 24 with Mr. Manafort and would deal with Mr. Manafort directly. 25 In other words, the issue now was when, after the first 28 1 version, we went to counsel and said: 2 sense. 3 coming from Mr. 4 involved? This doesn't make any We've got payment records, and the payment records are 5 . So how does Mr. And that's when we got version two. get And so the issue 6 for Mr. Manafort is, how does he now justify Mr. 7 anywhere near this scheme? 8 Mr. 9 And so -- and we know the answer through Mr. 10 being And then, once he switches to , the issue is, why did he first go to Mr. ? 's interview, where he tells us how that happened. 11 But, this was not Mr. paying money simply as 12 a way of -- as a gesture in light of work that he had obtained 13 from Mr. Manafort. 14 holding for Mr. 15 directed to do it by Mr. 16 that was not told to us by Mr. Manafort. 17 Rather, this was just money that he was , and he just gave it because he was , and that's why he did it. Again, If you look at Exhibit 3, page 1, that supports the 18 statements made by Mr. Manafort. In the grand jury, Exhibit 4, 19 at pages 254 and 255, Mr. Manafort said that 20 21 22 23 24 25 . Our view is that all of that is not true. And also, if you look on pages 248 and 249 and 257, all in Exhibit 4, which is the grand jury testimony -- 29 1 2 THE COURT: testimony again. 3 4 Tell me the pages of the grand jury MR. WEISSMANN: 254 and 255, 248 and 249, and 257. 257, Mr. Manafort is explicitly asked, and says that the 5 . 6 And then version three is that -- is when 7 Mr. Manafort said that this was a loan that was being given 8 from Mr. 9 requested from Mr. 10 to Mr. Manafort, which Mr. Manafort had . And if you look at Exhibit 10, at page 3, 11 Mr. Manafort says that originally they planned this to be a 12 loan. 13 Mr. Manafort's statements. 14 It's not what Mr. 15 said in an email to Mr. 16 you'll note that. And there's -- there's no evidence of that, other than 17 It's not what Mr. said. said. It's not what Mr. Manafort about this being income, if If this was so legitimate and there was no issue, if 18 you look at the email that Mr. Manafort wrote to Mr. 19 he said: 20 directly to the law firm because I have trouble with my banks. 21 Again, that would all suggest that there's something This is a payment from a vendor, and it's being paid 22 nefarious going on, because that's clearly not the case, 23 Mr. 24 25 , is not a vendor of Mr. Manafort. So those are the lies that we think were told in connection with the $125,000 scheme. 30 1 2 THE COURT: All right. The 302s, of course, reflect what was said as opposed to a Q&A. 3 What's your response to what the defense has said, 4 that the initial questions had the wrong amount and they were 5 confusing and that's why his answers weren't what you were 6 expecting? 7 MR. WEISSMANN: So I think one piece of that we agree 8 with, which is that the initial amount -- if you give me one 9 second. 10 (Pause.) 11 MR. WEISSMANN: So the initial amount that we had 12 thought was paid to the law firm, we thought was higher, and 13 then we went and looked at the records and realized it was 14 lower. 15 So they're correct, that we initially had the number 16 wrong. 17 went in to this just wanting to know what's this payment, and 18 where did it come -- I mean, this was not -- we in no way were 19 thinking this was going to be where we ended up. 20 tell from the fact that we then interviewed all these people to 21 try and dig through this. 22 23 24 25 And, by the way, that, I think, should be taken as we And you can The issue of whether the amount that was paid to the law firm was 500,000 or 125,000 has nothing to do with hiding a scheme, and it's nothing to do with coming up with three separate versions. I just -- I think it's -- I think 31 1 there is -- like many very good defense arguments, you know, 2 that you make to a jury, there's a kernel that's true. 3 don't think you get from that to where you need to be. 4 THE COURT: But, I What about the defense suggestion that 5 there was confusion at the time the payment was made as to 6 whether it was going to be a loan or a gift? 7 MR. WEISSMANN: 8 THE COURT: 9 So, we have -- we have -- We have the email he wrote in real time to his accountant and how he treated it at tax time. 10 MR. WEISSMANN: Yes. 11 have Mr. 12 why Mr. 13 his demeanor. 14 would not be where -- one could view that as not particularly 15 being in his interest. 16 payment seemed very credible to us, in that I don't see how 17 there's confusion. 18 and Mr. And so we have that, and we . And it's very hard to see -- again, we could rely on his credibility and But, it is hard to see why what he said to us And telling us the circumstances of the And also, it's important to note that that's not how 19 it was presented to us. 20 to you about the 125,000. 21 don't know, in terms of how it's going to be documented, 22 what -- that was not the way it was presented. 23 presented as: 24 this way. 25 It was not presented as: There was a It happened this way. No. Let me talk scheme. It was Then, it happened Then, it happened this way. And when we said: I Well, then, why did you even 32 1 mention Mr. 2 3 ? And it was, like: to Mr. 4 Well, Mr. just introduced me in terms of he could pay the money. I mean, the story really does not make sense, unless 5 you really -- the way, I think, to understand it, and the way 6 we got into this was, at the very least, Mr. Manafort was aware 7 of the 8 9 scheme. THE COURT: All right. Well, you've kind of headed it right into something that I had wanted to ask, which is, 10 putting aside whether it has to be established and whether we 11 have to establish all the elements of 1001, why is this 12 important? 13 just asking about something and it turned -- it snowballed into 14 a series of false statements. I mean, basically, what you're saying is, you were 15 But, was there something about his -- if I agree with 16 you that he was lying about that, that was material to what you 17 were doing? 18 payment in the first place? 19 What was the importance of asking him about the MR. WEISSMANN: So, there were a number of things 20 that we were interested in knowing about the source of funds 21 and where money was coming from. 22 tracing of assets that was being done. 23 accountant is here. 24 Eastern District of Virginia case, and to the case here. 25 And there was a lot of Actually, our forensic That is something that was relevant to the So, we were trying to determine location of money, 33 1 and whether there were other -- other accounts that we were not 2 aware of, or people holding money for Mr. Manafort that we were 3 unaware of. 4 looking at this. 5 6 So that was the initial impetus for why we were It obviously, subsequently, is of significance, in that the reason for sealing this is -- has to do with the 7 8 . So, it -- the initial reasons are not, now, the current reasons. 9 THE COURT: All right. 10 noted in the declaration that 11 deal that he had, essentially, to 12 You touched on this: It's , when he explained the , that he said he 13 was unaware of whether there was a 14 Manafort. 15 that might be a motive for his being not straightforward, as 16 you believe he wasn't. 17 18 And you've kind of hinted to that here today, that Is it something that we know the answer to? And whether he did or he didn't, is it something that matters? 19 MR. WEISSMANN: So, the answer to the first question, 20 about whether we know the answer to whether Mr. Manafort was 21 receiving 22 23 , the answer is, we don't know. In terms of whether it matters, I don't think it 24 matters because it's sufficient that the -- defendant, A, 25 whether he lied and he would -- it would be sufficient if he 34 1 was aware of the -- of the scheme. 2 from all of the circumstances here. 3 4 I think you can infer that I do want to address one of the things that the Court said about motive. 5 The -- from our perspective, the motive here is, if 6 you remember Mr. Manafort, at the -- when he was working for 7 the Trump campaign, was unpaid. 8 9 Second, as there's been a lot of evidence in the Eastern District of Virginia case, that during that time period 10 Mr. Manafort had a liquidity issue; not that he didn't have 11 assets. 12 and there was a dramatic drop in income that was coming in to 13 Mr. Manafort. 14 But Mr. Yanukovych had fled in 2014 from the Ukraine, And one of the -- and so the -- one of the motives 15 for the serial bank frauds that were charged, and now admitted 16 by Mr. Manafort, was to, basically, increase his liquidity. 17 Here, this was a way of getting cash. And it's not 18 something that would be, I think, well received, that the 19 unpaid campaign manager was getting 20 21 . And, instead, was being used to 22 pay 23 were not reported in the contract -- the written contract so 24 that there would be a motive to conceal this. 25 in ways that THE COURT: Okay. All right. 35 1 Mr. Westling, is there something, first, you want to 2 start with to add to what you put in your pleadings about this 3 issue? 4 MR. WESTLING: Well, I think, Your Honor, as you 5 pointed out and the Government responded to, there was this 6 initial amount confusion. 7 less than a primary area of discussion. 8 9 It sort of came up as kind of a -- You'll note that in the first 302, there really is a fairly complete accounting of the relationship of Mr. 10 the fact that 11 think that as a practical matter, this issue took on a life of 12 its own through these meetings. 13 back, and the Government continued to show its dissatisfaction, 14 and yet the story didn't change all that much. 15 paid the money. , and And so, you know, I I mean, we seem to keep going And I think that at the end of the day, you know, 16 Mr. Weissmann has been very up front in saying that, you know, 17 he has a suspicion about what was going on here, for which 18 there is not yet proof. 19 don't think it occurred. 20 I don't think there is proof because I And one of the things the Court should be mindful of 21 is that the amount of money that was paid here, if there had 22 been such an arrangement, would have been a small fraction of 23 what he could have used to pay lawyers he owed a lot more money 24 to. 25 really make sense in the way the Government wants to describe So, I mean, there's something about it that just doesn't 36 1 it. 2 But, I think that's probably all I have as an 3 introduction, Your Honor. 4 specific questions, if that's helpful. 5 THE COURT: And I would be happy to answer All right. Well, it struck me, when I 6 read your pleadings, that you had a number of theories about 7 why each individual statement wasn't necessarily false. 8 instance, you start by saying that he could have fairly thought 9 that the payment was a repayment of a loan to 10 owed him money. 11 made by 12 But, the payment wasn't made by For because . It was . And I'm not sure how that explains the evolving 13 succession of inconsistent explanations. 14 agree with what you just said, that the story didn't change. 15 MR. WESTLING: I'm not at all sure I Well, I think, if you look at the 302 16 from -- let me give you an exhibit number. 17 it's page 6. 18 referred to you previously. 19 sort of came up, with the understanding that he went to Mr. 20 because Mr. 21 reason he could go and ask for this money, for help, which was 22 really what he was looking for. 23 It's Exhibit 9, and It was the same paragraph that Mr. Weissmann And he talks about -- and this owed him money. And so that was -- gave him a And then, in essence, what happens is that he 24 recognizes, as this comes out in his first interview, that 25 Mr. is the one that's paying the money, and that the 37 1 money, the amount is actually the 125, not the higher number 2 the Government had said, or the lower one he was thinking. 3 as a practical matter, that's sort of where it's left at that 4 point. 5 But, what's clear from the very first is that Mr. 6 is involved and Mr. 7 back and revisit it. 8 perspective, that all along what was being said was: 9 10 And talked to is involved. And then we come And it's very clear, from our , and I talked to I went to , and I got this money. 11 And I don't know, at the end of the day, that it 12 really changes. 13 The point, you know, that's made later on about the e-mail to 14 I mean, those elements are there throughout. in referencing a vendor, well, that's actually an 15 accurate description of his relationship with Mr. , 16 who's been a vendor on all these campaigns he's used in the 17 past. 18 It's explaining who's the source of the funds. So, I don't think that was designed to hide anything. 19 And I think throughout, there was just an 20 unwillingness on the Government's part to sort of accept what 21 was being said. 22 investigation, found out more details. 23 So their point, I guess, they did more But, I don't think there's any question when we sit 24 here today, that what Mr. Manafort was saying is: 25 out to I reached , basically, talked to 38 1 2 , I talked to , and made a payment on my behalf. 3 And that sort of runs through all of these sessions. 4 THE COURT: All right. Well, one of the things you 5 say is, there was confusion at the time of the transaction 6 about whether it was a loan or a gift, and so you declared -- 7 he declared it income in an abundance of caution. 8 9 Where is the confusion that it might have been a loan at the outset? 10 11 MR. WESTLING: Well, there is -- give you an exhibit site here. 12 Exhibit 8, which is 11/6/2018, 302 of , 13 on page 2, paragraph -- the fourth full paragraph, there's a 14 recounting by Mr. 15 where they discuss the payment, and 16 that he needs to issue a 1099. 17 what you need to do. 18 of a dinner he had with Mr. Manafort tells Manafort And Manafort sort of says: Do And so Manafort is expecting a 1099 from 19 Mr. 20 what happens is Mr. 21 law firm, not to Mr. Manafort. 22 situation where he doesn't really have control of his finances, 23 trying to help his accountant. 24 25 , which never arrives. So, at the end of the day, 's accountant sends the 1099 to the And so he's sitting in a On one hand, he knows he was promised a 1099 that never appeared, because the accountant doesn't have it. And 39 1 the question is: 2 What do we do with this? And so it's either got to be a loan or income, 3 because everybody was clear it wasn't a gift. 4 end, Mr. Manafort declares it, although there's also some 5 effort to put together a loan document in the event that's the 6 way it's going to be treated. 7 And so, in the But, you know, again, it was not clear at the time, 8 between the two people talking, what was happening, other than 9 the money had been paid and that a 1099 would be coming. So 10 that appears to be income, and that's the way Mr. Manafort 11 treated it. 12 Later, when it doesn't arrive, he doesn't know what's 13 going on and he's not able to reach out to Mr. 14 clarify it directly, which is one of the things he points out 15 in the grand jury. 16 THE COURT: All right. to Well, you also said in your 17 reply that the Office of Special Counsel was claiming that 18 Manafort lied when he discussed the fact that the payment might 19 be a loan. 20 That's your words. 21 MR. WESTLING: 22 THE COURT: Mm-hmm. And then you tell me: Well, it's all, 23 you know, really of little moment because he paid taxes on it 24 anyway. 25 I'm not sure that really addresses the seriousness of 40 1 the allegation, because he didn't just say the payment might be 2 a loan. 3 when he advanced the narrative that it was a loan, and he came 4 up with a reported unsigned copy of a note to support it and 5 then passed the same false story on to his accountant years 6 later in an effort to have him revisit the original tax 7 treatment. 8 The Office of Special Counsel is claiming that he lied So, I feel like that not only is it possible that he 9 wasn't being truthful with the Office of Special Counsel, but 10 you were kind of really downplaying it in your description to 11 me. 12 So, what do you want to tell me about this promissory 13 note that makes its first appearance during the debriefing 14 session? 15 MR. WESTLING: Well, I mean, again, I think it's 16 important, Your Honor, going back to Exhibit 8, Mr. 17 acknowledges having seen a promissory note in the past. 18 doesn't remember signing it or anything else. 19 that was presented to him. 20 So at some point We also know that Mr. Manafort told the special 21 counsel and the grand jury that he, basically, told his 22 accountant to reach out to Mr. 23 out, because he was not in a position to do it. 24 25 He and get this figured And so I think the point is that there -- it was not clear, and there's these things floating around. In the end, 41 1 it gets reported, because that's what you do if you don't have 2 a basis not to report it. 3 4 5 But I think, you know, because there was not a discussion -THE COURT: Well, why are we suddenly sending to the 6 accountant, in October of 2018 -- and, interestingly, it comes 7 from the same lawyer who tried to sell me a little bit of a 8 bill of goods in connection with the loan documents during the 9 bond hearing? 10 11 Like, how is he suddenly sending this supposed promissory note that existed way back when? MR. WESTLING: 12 sent to Mr. 13 clear is, he acknowledges seeing it and -- 14 . Well, I don't know when the note was THE COURT: It's not clear from the 302. What's So you're not telling me that that's 15 evidence that it was generated in real time? 16 to figure out, do I have any reason to believe that this thing 17 existed at the time of the transaction, as opposed to 18 conveniently appearing in time for the debriefing session -- 19 after he'd been through several debriefing sessions. 20 MR. WESTLING: I'm just trying But, I guess the premise that that 21 starts from is that Mr. Manafort, from the beginning, 22 acknowledged that he was expecting a 1099. 23 to be income. 24 THE COURT: 25 MR. WESTLING: So he believed it Right. And then there was this confusion that 42 1 came up. And so in the end, when there was no loan that was 2 confected, it was reported as income. 3 was ever any indication that the loan was in any way an effort 4 to avoid paying tax, if tax was, in fact, due. 5 what the intent of the gift -- the person who provided the 6 money was as to whether it was going to be repaid or not. 7 THE COURT: No. But, I don't think there It depended on I'm trying to figure out if the 8 promissory note was something created to support the 9 version three. 10 MR. WESTLING: No, I don't think it was, Your Honor. 11 I think version three was a response to being shown the 12 promissory note. In other words -- 13 THE COURT: 14 MR. WESTLING: 15 THE COURT: 16 MR. WESTLING: 17 By whom? By the special counsel. No. They say he showed it to them. I wasn't at that meeting. So I apologize. 18 MR. DOWNING: Just to clarify, we got that document 19 from Mr. 20 of Special Counsel. 21 interviews with the Office of Special Counsel, Your Honor. 22 and then provided the document to the Office THE COURT: That promissory note predated any What prompted him to suddenly send it to 23 the accountant right around the time that you were showing it 24 to the Office of Special Counsel for the first time? 25 MR. DOWNING: The reporting of the amount as income 43 1 had to do with the tax deadline for that year it was showing 2 up. 3 up a prior year. 4 being filed, and that amount of income was being timely picked 5 up on a return that was being filed on an extension. 6 was the email communication with the accountant. So, Your Honor, I think, before, you were saying to clean 7 That's not what happened. The returns were So that And, quite frankly, it wasn't really an issue here, 8 in court. But, there was an issue in the Eastern District of 9 Virginia about whether or not recording certain transactions as 10 loans was legitimate. 11 Pick it up on the return and let's figure it out later. 12 And there was a big issue to just say: That's what was determined to be done. And as you 13 know, at that point in time, we were not about to reach out to 14 other individuals that could potentially be witnesses. 15 were kind of in a box, in terms of trying to get a resolution 16 of the matter satisfactorily during this process. 17 couldn't do it. So, we We just 18 THE COURT: All right. 19 Mr. Weissmann, I certainly got the impression from 20 the declaration and your pleadings that you were suggesting to 21 me that this promissory note was a recent concoction. 22 What's your response to what they're saying? 23 MR. WEISSMANN: There's no evidence in the record 24 that the promissory -- the unsigned promissory note existed 25 prior to the proffers in debriefings here. But, we know what 44 1 is in the record, which is the contemporaneous email from 2 Mr. Manafort to his tax advisor, and the tax advisor's 3 statements to us about this being income. 4 It's the email where I told you Mr. Manafort is 5 coming up with, itself, a false statement to his tax advisor, 6 saying that this is money from a vendor. 7 be lying to your tax advisor. 8 charged in two cases with tax offenses, still making a false 9 statement to Mr. 10 Again, no reason to Ironically, for somebody who's about this. Why I think the -- this is now being recast as a loan 11 as opposed to income is because as we started asking questions 12 about it, and it -- again, not in any way thinking this was a 13 scheme. But, then, falling into that, is that I 14 think that Mr. Manafort did correctly decide to record this as 15 income because, although it is a -- a 16 one way of avoiding at least one criminal problem is to report 17 it as income because it is income, if it is money from a 18 scheme, it -- scheme. 19 But, if you were hiding that from the Government, you 20 need to come up with a different way of explaining this than 21 income. 22 okay. 23 Which is why I think it was then, later, determined, Let's call it a loan. As you know, Mr. didn't know it was a loan. 24 Mr. didn't know it was a loan. So you have two 25 witnesses saying that, and it's uncontroverted. There is no 45 1 evidence in the record otherwise. 2 And I would just -- although it's in the declaration, 3 I would point out Exhibit 12 to the Court, which is -- it is 4 the text exchange between Mr. Manafort and Mr. 5 . If this is money that is being paid by Mr. 6 as a loan, or as money for past work, Mr. Manafort is sending 7 the banking information as to where the money should go to 8 Mr. 9 Mr. 10 11 12 13 . That all makes sense, if it's Mr. 's money, and is directing where this is going to go. exactly what Mr. And that's said. So the contemporaneous documentation is entirely consistent with what Mr. THE COURT: was telling the Government. All right. I think I've heard everything 14 I need to hear on this issue, unless there's something you 15 think I haven't heard yet that you want to tell me. 16 MR. WESTLING: 17 (Pause.) 18 MR. WEISSMANN: One second. Judge, while they're waiting, I just 19 want to repeat that nothing that the Government is contending 20 here is in any way intended to reflect on defense counsel. 21 22 THE COURT: I understand that as something you've made quite clear, and I appreciate that. 23 MR. WEISMANN: Okay. Okay. 24 MR. WESTLING: Your Honor, a couple points. 25 One, if the Court would be willing, we're able, we 46 1 believe, to get the metadata beyond that relates to that loan 2 document. 3 past and was not created. 4 would have to have proof of that to be able to rely on it. 5 don't know if that's something that we could provide to you 6 after the hearing, but it's something we're willing to provide. We're pretty confident it existed some time in the 7 THE COURT: 8 MR. WESTLING: 9 That would be fine. THE COURT: Okay. And I think the other thing, You need to put it some format that I actually understand what I'm looking at. 12 MR. WESTLING: 13 THE COURT: 14 MR. WESTLING: 15 Understood. All right. It will have to be that way for me, too. 16 THE COURT: 17 MR. WESTLING: All right. Just the other thing is that I think a 18 lot of what the Government reads into what happened here 19 relates to this theory of what's going on. 20 important to note is that they describe, for example, the 21 payments to Mr. 22 Mr. 23 understanding. 24 as far as what Mr. 25 I Your Honor, just sort of going back, a great deal of -- 10 11 But, we obviously know that you as I think what's , when, in fact, you know, acknowledges this is , based on his There's nothing unusual about what's going on is getting. And I think, you know, it's important because there's 47 1 a sense of coming up with reasons why it would have made sense 2 to hide what was going on, rather than accepting the fact that 3 the three players in this were there from the beginning, and 4 there was just a lot of uncertainty about what exactly happened 5 in terms of getting the money paid. 6 THE COURT: All right. I think you made that clear. 7 And I think I understand everybody's point of view about this, 8 and what the evidence is. 9 evidence I'm going to need to re-review. 10 All right. But, there's some aspects of the So let's go on to what is II, or the 11 second subject touched upon in the declaration, which is 12 Mr. Kilimnik's role in the obstruction conspiracy. 13 So, Mr. Weissmann, the concern here, laid out in 14 paragraph 15 of the declaration, is that in an interview, after 15 Mr. Manafort had pled guilty to conspiring with Kilimnik, he 16 offered up an exculpatory version of Kilimnik's state of mind. 17 And I certainly don't quarrel with your conclusion, that this 18 isn't necessarily consistent with what one would call full and 19 forthright cooperation. 20 But, given his correction after consultation with 21 counsel, why would this be something that we would characterize 22 as the crime of making an intentionally false statement to the 23 FBI, or even just a law of significance for acceptance of 24 responsibility in sentencing purposes? 25 MR. WEISSMANN: So, let me just first address the 48 1 acceptance of responsibility. 2 This could be relevant to acceptance of 3 responsibility, but it could also be relevant to a number of 4 other issues. 5 issues that we're now very much involved in, in terms of 6 whether this should or should not form a basis for discounting 7 acceptance of responsibility. 8 In other words, there are a number of legal Even putting that aside, if the Court were to 9 conclude that this is an intentional lie, that it would be 10 relevant to issues such as a variance, or where within the 11 guidelines the Court would sentence the defendant. 12 our position with respect to how it could be relevant. 13 In terms of -- 14 THE COURT: So, that's Well, and I think I detailed, at one 15 hearing or another, all the various ways, if he made false 16 statements, it could bear on sentencing. 17 MR. WESTLING: 18 THE COURT: Yep. I'm just trying to figure out why this 19 one, corrected within the same session, albeit after his 20 counsel took him aside and whispered in his ear, makes you 21 think that I should consider this one in that group of things 22 that bear on these issues. 23 MR. WEISSMANN: So, this is why: First, in terms of 24 what happened, I would like to direct your attention to 25 Exhibit 10, page 6, which is the 302 of that session. 49 1 And it's not correct that the defendant said 2 something, and then defense counsel sort of said: 3 a moment, and it got fixed. 4 THE COURT: Okay. 5 Are the mics on the tables live? 6 THE COURTROOM DEPUTY: 7 THE COURT: Let me have Let me stop you for one second. Yes. Can we let him have that? For some 8 reason -- you obviously haven't done a lot of TV or theater, 9 Mr. Weissmann. 10 MR. WEISSMANN: Yeah. 11 THE COURT: 12 and it's not your fault at all. Exactly. Or maybe you just got a bum microphone, 13 MR. WEISSMANN: 14 THE COURT: 15 MR. WEISSMANN: So -- That's much better. What I was saying is that it wasn't a 16 situation where this came up, defense counsel said: 17 a moment? 18 Can I have And then it all got corrected. There -- if you look at page 6, Mr. Manafort gave a 19 detailed explanation. And I'll get to that in a moment. And 20 after that detailed explanation, the Government pointed out to 21 Mr. Manafort and to defense counsel who was present the 22 inconsistency and -- with respect to the statement of offense 23 and guilty plea. 24 where Mr. Manafort and defense counsel were alone, and then we 25 resumed. There then was a substantial period of time 50 1 2 So, one of the things I would -- so, one, I think that is -- bears on -- it's a factor for the Court. 3 The other is that if you look at what the defendant 4 said, this is not the defendant saying -- you know, I have to 5 just intuit what is in his head, and, you know, he got it 6 wrong. 7 remember, having gone through it with counsel, why it is that I 8 believed he knew. 9 10 11 In one instance, he was, like: Okay, yes. And now I That's not the way it was presented in either the first or corrected version. If you look at the 302 -- and I'd just like to quote 12 some of it to you, because some of it is factual about what the 13 facts were, not just intuiting what was in someone's head. 14 So, the part that would be what Mr. Kilimnik 15 believed -- and this, by the way, is Mr. Manafort having no 16 problem saying what it is that Mr. Kilimnik believed. 17 not a situation where he is, like: 18 what was in his head because version one included what he 19 thought was in his head. 20 I can't really tell you Mr. Kilimnik believed that the Hapsburg Group was a 21 European project. 22 group's project in the United States. 23 24 25 So, it's Mr. Kilimnik did not work on the Hapsburg Now, let me go to the corrected version after the substantial break. Kilimnik knew that the Hapsburg Group performed work 51 1 in the United States. 2 know. 3 So you have he didn't know, and he did Now, the actual facts are ones that the Court is 4 familiar with. There, obviously, is an indictment, which -- of 5 Mr. Kilimnik, as well as Mr. Manafort, which the grand jury 6 found at least probable cause. 7 Mr. Kilimnik being involved in setting up Hapsburg Group 8 events, and being on e-mails where the Hapsburg Group is 9 working in the United States. There are ample records of So it's not a case where 10 Mr. Kilimnik and Mr. Manafort didn't both know and knew that 11 the others knew. 12 And then, finally, Mr. Manafort, in the second 13 version, says Mr. Kilimnik was aware of the facts and agreed to 14 violate the law. 15 So, to us, within 32 days, we have an instance of 16 Mr. Manafort completely changing his story. 17 issues, I think, for the Court, as it was for us, is, what's 18 the motive? 19 THE COURT: 20 What are you thinking that was? 21 And one of the Well, that's what I was going to ask you. MR. WEISSMANN: Because we had the same question, 22 which is, why would somebody do this? And to us, the issue is 23 that I think Mr. Manafort went out of his way in this instance, 24 and I think in the next one, to not want to provide any 25 evidence that could be used with respect to Mr. Kilimnik. 52 1 And I do think there is an aspect which is something 2 he did forget, which is, I think he clearly forgot that when he 3 pled guilty, it was a conspiracy where he was necessarily 4 conspiring with Mr. Kilimnik. 5 does not in any way mean that he did not lie. 6 I mean, that's plain. But that We have him saying that Mr. Kilimnik did not work on 7 the Hapsburg project in the United States, and we know that's 8 not true. 9 admitted that just 32 days earlier; if he even needed to That he, in fact, knew that at the time, and he 10 remember it from that, as opposed to having lived the 11 experience with Mr. Kilimnik. 12 THE COURT: Okay. 13 MR. WESTLING: 14 THE COURT: Mr. -- oh, my God -- Westling -- Westling, Your Honor. -- again, I think the characterization of 15 the issue in the reply is a little off. In your initial 16 response you say: 17 just wouldn't agree to his intent. 18 state of mind, of course. 19 read to me right now to notice that he volunteers affirmative 20 statements about the nature of Mr. Kilimnik's state of mind. Well, he didn't deny his involvement. He He couldn't speak to his But the 302, I don't need it to be 21 And so I take it you would agree that certainly that 22 was not consistent with his plea and his obligations under the 23 plea agreement? 24 25 MR. WESTLING: Well, I think that there's some context, Your Honor, for what's happening here. I mean, he 53 1 does indicate about Mr. Kilimnik's mind. 2 from the way I sort of read all this, is when it's read with 3 the paragraph that follows, and even the one right before it, 4 where there's some reference to the communication he's had with 5 Mr. Kilimnik after the indictment. 6 What's not clear, And so, the -- for example, comments about this being 7 outrageous, I mean, I sort of view this, at least in part, as 8 what Kilimnik is saying or feeling about his role, not what 9 Mr. Manafort believed about it. 10 But, you know, it still sort of comes down to this 11 whole idea of, you know, what was in someone's mind. 12 when reminded about the conspiracy to the point that the 13 Government made, where there was some lack of recognition of 14 perhaps what that meant in the moment, you know, Mr. Manafort 15 returned to what he had said before you, under oath, and has 16 consistently said since. 17 I think I mean, I think this was just a moment where there 18 was some, you know, lack of clarity in the questioning. 19 you look at the paragraph right before it, you know, it's sort 20 of talking about where Mr. Kilimnik is living at the time, 21 etcetera. 22 afraid for his family after moving back to Moscow, and that he 23 did not believe he was suborning perjury. 24 25 When And sort of Kilimnik told Manafort that he was To me, that seems to be -- it's suggesting what's happened after the indictment and not in the moment. And, 54 1 again, I'm not saying that's what it is; I'm just saying 2 there's confusion around that in the way this is written. 3 it's -- this paragraph is sandwiched between two that clearly 4 reference an after-indictment conversation with Mr. Kilimnik. 5 6 And And so from the point of view of Mr. Manafort, you know, clearly, he wasn't -- 7 THE COURT: Well, then, why would that have needed a 8 session and a review of notes and getting him to say something 9 different, if what he said at the beginning, there was nothing 10 wrong with it? 11 MR. WESTLING: Because throughout these sessions, 12 there were moments where -- I mean, I don't need to tell the 13 Court. 14 nature of defense lawyers sitting in any proffer session, any 15 cooperation session, that is all about what I've always 16 described as being the air traffic controller, making sure the 17 question that is coming is the one that's getting answered, and 18 that everybody stays on the same. 19 I know you've been there. But, you know, there's the Clearly, things got awry here. And when that 20 happened throughout, where there was a sense that either 21 Mr. Manafort was saying something the Government doesn't 22 understand or vice versa, defense counsel intervened 23 repeatedly. 24 happened during the course of these many sessions. 25 I mean, this was not an unusual thing that And I think in this case, it was important to make 55 1 clear. Because the way the Government was: 2 away from your plea. 3 intended. And that was not what Mr. Manafort And so we met with him and corrected the record. 4 5 You're backing THE COURT: I think Mr. Zehnle wants to say something. 6 MR. ZEHNLE: 7 I just wanted to clarify a little bit, based on this 8 Good morning, Your Honor. 302, since I was counsel present at this time. 9 And I think what Mr. Westling said is absolutely 10 correct. Because when I was looking at the 302 and remembering 11 and looking at our notes of this meeting, the issue came up in 12 terms of: 13 Did you discuss this with Mr. Kilimnik? And there was a series of questions following -- as 14 you can see in the paragraph identified in the 302 that 15 Mr. Weissmann went over -- where my understanding and my 16 client's understanding, as he has stated, was that this is what 17 Kilimnik was saying in terms of this. 18 you can see it from the previous page, he's talking about 19 Kilimnik told Manafort. 20 21 22 23 So it's: guys talk? Well, okay. But it all flowed. And After the indictment, did you What did you talk about? Okay. Well, Kilimnik said, you know, I didn't believe I'm suborning perjury, or anything like that. 24 And this discussion went on for, you know, a decent 25 amount of time, as I believe Mr. Weissmann was the one asking 56 1 the questions at that point in time. 2 answering based on the stated comments that, apparently, he had 3 with Mr. Kilimnik during this conversation. 4 And Mr. Manafort was When it seemed to start going awry -- and I do recall 5 this specifically. 6 Court, as an officer of this Court, there was an issue raised: 7 Well, do you understand the difference between an explicit 8 agreement and an implicit agreement? 9 It's not evidence, but I can tell the And it was at that point that we took a break to -- 10 and I'm not going to go over, obviously, attorney-client 11 privileged information, Your Honor, but that's what came up in 12 terms of what was explicitly being said versus what was 13 implicit. 14 that Mr. Manafort said: 15 this is what's happened. And there was never any backing away from the fact I've pled guilty to this crime and 16 So, the way this comes out, when I read -- 17 THE COURT: I don't think they're suggesting that he 18 ever tried to sugarcoat his involvement in the witness 19 tampering. 20 cut Kilimnik out of it. 21 saying: 22 telling you what he's thinking. 23 I think they're saying that he started trying to And the question is, was he simply Kilimnik says X. This is his version. I'm just That's not the way the 302 read to me when I read it. 24 I understand you want me to look at the first paragraph. 25 But -- and this is the problem with not having grand jury 57 1 testimony, but having to look at a 302. 2 And I'm going to ask if the agent or anybody in the 3 Office of Special Counsel wants to weigh in on this issue. 4 I think it went on to be more of an affirmative statement of 5 not only what Kilimnik's position was, but what he did or 6 didn't think at the time. 7 on the face of the 302. 8 little bit of a strained reading that you're giving it, 9 although I will read it again. 10 11 But And I may not be able to resolve it But I'm not -- I think that it's a Is there anything else you want to tell me about what happened during it? 12 MR. DOWNING: 13 THE COURT: 14 (Pause.) 15 MR. ZEHNLE: Just -- can I have a moment? Yes. Well, Your Honor, as I said to you a 16 moment ago, I mean, this was my recollection of what occurred 17 there -- 18 THE COURT: 19 MR. ZEHNLE: 20 THE COURT: 21 MR. ZEHNLE: 22 THE COURT: Okay. No, I appreciate it. -- as opposed to the 302. Okay. And so the reason I raised the -I mean, I think it was -- I mean, I think 23 what they're saying is, you acted all responsibly at every 24 point. 25 on course; so, it had gotten off course somehow. It was troubling enough to you all to get it re -- back And I have to 58 1 try to figure out if it's because he was intentionally trying 2 to soften the blow for Kilimnik, or he was just saying: 3 want to know what he thinks? 4 You I'll tell you what he thinks. And so I appreciate your gloss on it and your 5 recollection. And I don't doubt that you're telling me that in 6 good faith, but I want to hear what their recollection is, too. 7 MR. ZEHNLE: 8 THE COURT: 9 Okay. Do you have anything you want to add, understanding that that's where the rub seems to be right now? 10 MR. WEISSMANN: I think I have a couple things. 11 One is, I think that it's important to have a clear 12 factual record and -- so that we have no objection to the 13 defense submitting additional evidence, but the evidence in the 14 record does not support that. 15 I was just checking with Mr. Andres -- that there was a 16 discussion of implicit and explicit agreements. 17 the context that we recall, and it -- that's not in the record. 18 And, again, that's -- I'm just -- I guess I'm being a And it also would not support -- That wasn't 19 lawyer, which is, there's evidence that's been submitted to 20 you. 21 don't think that the record supports that. 22 We're not against the record being amplified, but we Again, I think if you look at the text of the 302, 23 and what it is that Agent Weiland put into the record, it does 24 not support the view. 25 simply a miscommunication. And we would not be here if this was We have a -- I think, a good 59 1 professional working relationship with defense counsel, and in 2 instances where there was -- people were just not on the same 3 page, we worked through that issue. 4 This was not that. This was one where a significant 5 issue came up because 30 days after pleading guilty, we had a 6 defendant before us saying, in fact, he is not guilty of the 7 conspiracy. 8 are not in any way saying that Mr. Manafort was saying that he, 9 himself, did not engage in what I think would be one of the Again, the Court has it completely correct. We 10 counts that was charged, but he was saying it was not a 11 conspiracy. 12 is clear from the factual statements that diverge in the 302. 13 He was not doing it with Mr. Kilimnik. And that And I think the final piece is that Mr. Manafort, 14 afterwards, basically told us when -- after this long break and 15 he came back and said the exact opposite of what he had just 16 said, Mr. Kilimnik knew that the Hapsburg Group performed work 17 in the United States, something that he had previously said he 18 did not say. 19 said. 20 He said: You just didn't understand what I had And we all knew, and the record reflects that, in 21 fact, is another false statement. 22 And the only evidence in the record is that that statement is 23 not true. 24 were all present for the prior version. 25 That is not what happened. And that has to be intentional, in our view. THE COURT: We So, this is an example where you're 60 1 saying he didn't just correct or revise the information, but he 2 denied having said the thing earlier? 3 MR. WEISSMANN: 4 THE COURT: 5 MR. WEISSMANN: Yes. Okay. And that is on Paragraph 17 of 6 Agent Weiland's declaration. 7 Paragraph 17. 8 9 THE COURT: But it would be reflected in the 302, also? 10 MR. WEISSMANN: 11 only in the declaration. 12 13 It's in the very end of the THE COURT: I don't think it is. Okay. All right. I think it's Is there anything more that we need to discuss about that one? 14 MR. ZEHNLE: Your Honor, I mean, just to the extent 15 that we're talking about the factual record, which is really 16 the 302 that the agent prepared which, as the Court recognized 17 at the beginning of the hearing, is simply a summary of what 18 happened. 19 not grand jury. 20 It's not a question and answer, and it's certainly I mean, Mr. Weissmann's made some comments, and I 21 think -- you know, obviously, I'm not suggesting anything in 22 bad faith, but I don't view this as some kind of substantial 23 break. 24 substantial break in time. 25 to his attorney. There's nothing in here that talks about some kind of It says: During a break, he spoke 61 1 2 THE COURT: I'm not putting any emphasis, one way or the other, on how long it took to confer with counsel. 3 MR. ZEHNLE: Thank you, Your Honor. 4 In terms of any of the other things, I don't believe 5 that these are necessarily inconsistent when you look at what 6 the 302 itself actually says, which is, Mr. Manafort reporting 7 after -- you know, based on his conversation, that is the 8 stated views of Mr. Kilimnik, that he believed the Hapsburg 9 Group was a European project, and that Europe was the fulcrum 10 of the project. 11 Your Honor, that position hasn't changed from the 12 defense at any time. 13 It was the focus. 14 made to the U.S., and Mr. Manafort has accepted responsibility 15 for that. 16 Europe was the fulcrum of that project. There was a component where outreach was He's pled guilty to that before this very Court. But, to sit there and say: Oh, well, saying that he 17 believed it was a European project and Europe was the fulcrum 18 is not necessarily a lie. 19 argue and take it in the most nefarious context and say: 20 see, that is a lie, because then he comes back and says he was 21 aware that there was work performed in the U.S., which is the 22 paragraph that follows immediately after the break. 23 I mean, you could sit there and Oh, I'm just saying that -- when you're sitting there and 24 you're allowing, in a cooperation or a debriefing, government 25 counsel to ask the questions that they want to ask of your 62 1 client, without interrupting every two minutes, and then you 2 see something going astray because it seems like they're 3 viewing it one way and he's viewing it another way, it's 4 perfectly understandable, and it happens all the time that 5 counsel take breaks. 6 And then, when you look back, he comes back -- you 7 can read the paragraph for yourself, Your Honor. 8 to read it again. 9 I don't need But my view is that this is not in any way a false 10 statement by Mr. Manafort. 11 was happening. 12 statement after we talk about -- and by the way, I do stand by 13 my earlier point of there's no evidence -- record about the 14 implicit versus explicit issue, because that question came up. 15 I was sitting there. And at the end, he came back. I saw what He makes the You understand that because you and I know, and 16 everyone else here pretty much knows, in terms of the 17 conspiracy law, there can be implicit agreements or explicit 18 agreements. 19 what did you guys talk about? 20 what he's talking about, here's what he said. 21 here's what I believed him to mean, based on what he was 22 saying. 23 And when the whole discussion is based on: And he's, like: But, then you come back and say: Well, Well, based on You know, and Well, at the end of 24 the day, he did understand that there was U.S. outreach in this 25 program, and that he stood by it. 63 1 And by the way, you can see immediately -- this moves 2 on to another topic. 3 THE COURT: All right. Well, I don't think I need 4 any more of your telling me what it says because I'm going to 5 read it again. 6 Kilimnik, which I think I'm going to break up a little bit into 7 the Ukraine stuff and the 8 stuff. 9 So let's go on to III, the interactions with With respect to the first, sort of, subtopic here, 10 the discussions concerning the 11 were talking about Ukraine, we that was being floated by the 12 13 14 15 . 16 The Office of Special Counsel contends that 17 Mr. Manafort lied about the number of times they discussed it, 18 that he and Mr. Kilimnik had not just discussed it once on 19 August 2nd, 2016, but also in December of 2016; in January 20 2017, in person, in Washington, D.C., when Kilimnik was here 21 for the inauguration; in February of 2017, including in person 22 on 23 ; and even in the winter of 2018. In the declaration, paragraph 29, and the 302, which 24 is Exhibit 101 from 9-21-18, the defendant was pretty 25 definitive that he did not continue to discuss it with Kilimnik 64 1 after the initial August discussion. 2 meetings and conversations later, and he ultimately did confirm 3 them in later sessions, and in the grand jury. 4 5 As part of this issue, there's also testimony concerning the February 2017 meeting with Mr. Kilimnik in 6 7 . On September 11 of 2018 Mr. Manafort said: to 8 9 10 for other business. And he says: I traveled Didn't meet with Kilimnik. September 12th, he's told: Well, Kilimnik was there. Well, I don't recall meeting with him. But, if he was there, he would have been there to meet with me. 11 12 But, there is evidence of And then, either on the 13th or 14th, he did say that that meeting touched on a number of issues involving the 13 . 14 And then in the grand jury, he testified that he told 15 16 . 17 And this issue about Kilimnik and Ukrainian politics 18 also involves Manafort's own work in 2017, as a consultant for 19 a potential candidate in the Ukraine. 20 he arranged for there related to what the Ukrainians thought 21 about the 22 And in particular, polls . So I want to put aside 23 for a minute so when we talk about we're talking about. , we all 24 know what And I want to talk about 25 whether his testimony about those efforts, including whether 65 1 Kilimnik knew about those efforts, was accurate. 2 So, again, starting with you, Mr. Weissmann, I want 3 to know what the particular intentional falsehoods are that you 4 want me to focus on here and why. 5 there were any before the grand jury, in your view. 6 we'll talk about the larger question, about whether even if he 7 kept it under wraps initially, if he began to respond to it 8 truthfully later, what significance I should draw from all of 9 that. 10 11 And in particular, whether And then But, let's start with the -- the ones in particular that you want me to focus on as lies of consequence. 12 MR. WEISSMANN: So I do think that the Court outlined 13 the principal ones. There is the -- the statement from 14 Mr. Manafort that this was a topic that was raised by 15 Mr. Kilimnik on August 2nd, 2016, in person, in New York, and 16 that the topic ended. 17 There's -- there's also the substance of 18 Mr. Manafort's reaction that we would like the Court to focus 19 on, because Mr. Manafort gives an explanation for why it is 20 that it ended. 21 backdoor Which is that, to use his phrase, it was a 22 23 24 25 . And because of that, he was not going to countenance it. Of note for us was that has nothing to do with whether Mr. or whether someone 66 1 else would. 2 backdoor 3 The idea was that the itself, which was a was a nonstarter for Mr. Manafort, according to him. 4 Those came up in his view of that came up in 5 sessions, interview sessions, but it also came up in the grand 6 jury, where he gave that view inconsistently. 7 times when he talked about he was against 8 was a 9 But, there were because it The issue of the timing, the denial of it coming up 10 after August 2nd did not come up in the grand jury. 11 that point we had been through the evidence with Mr. Manafort 12 to explain how it had come up in the past, with one exception. 13 We had not discussed with Mr. Manafort the evidence regarding 14 the 2018 work that he did with respect to polling in Ukraine. 15 That is information that we had and obtained, I think, after 16 the Eastern District of Virginia trial, that was not shared 17 with Mr. Manafort. 18 the outside, that Mr. Manafort was aware of; he just didn't 19 know that we knew that information. 20 21 Because by Of course, it's something, as I noted at Second, we would like the Court to focus on the meeting, and the denial of Mr. Kilimnik having met with 22 Mr. Kilimnik [sic]. This is a good example: If that was the 23 only instance where if this wasn't in the context of denying 24 the -- a series of things about 25 having forgotten about one meeting, that we could have taken a , and it was just 67 1 very different view. 2 It's hard to sort of put yourself into what you would 3 have done. 4 the context in which it was in, and the importance of what was 5 being discussed. 6 that there was this meeting, if you note what he says happened, 7 Mr. Manafort says: 8 Mr. Kilimnik was the one who wanted to discuss 9 I didn't. 10 But this, to us, took on extra weight because of And even after Mr. Manafort had to concede Well, I had things to discuss, but ; So, again, diminishing, sort of, his interest in 11 this, even though he is the one you see a year later who is 12 very much focused on 13 14 15 . The . about the . THE COURT: There are a series of lies I think -- Can you tell me why that was -- I guess 16 where I got the most confused, what the importance is of any 17 dissembling about whether Kilimnik knew who he was working for 18 or not, and what his role was in creating the 19 20 or advancing them? MR. WEISSMANN: Why is that important? Okay. So, I mean, this goes to the 21 larger view of what we think is going on, and what we think the 22 motive here is. 23 This goes, I think, very much to the heart of what 24 the Special Counsel's Office is investigating. And in 2016 25 there is an in-person meeting with someone who the Government 68 1 has certainly proffered to this Court in the past, is 2 understood by the FBI, assessed to be -- have a relationship 3 with Russian intelligence, that there is 4 . And there is an in-person meeting at an unusual 5 time for somebody who is the campaign chairman to be spending 6 time, and to be doing it in person. 7 That meeting and what happened at that meeting is of 8 significance to the special counsel. 9 issue of what The -- in looking at the 10 11 12 13 14 , all are the focus of -- and are raised by the issue of the August 2nd meeting. 15 THE COURT: 16 and the 17 question is more the 18 that correct? Well, I understand the August 2nd meeting meeting -- well, not so much the . My effort was in 2018; is 19 MR. WEISSMANN: 20 THE COURT: That's correct. So, now we're talking about -- he's not 21 in the campaign anymore, but this case is pending. And so I'm 22 trying to figure out what the importance is of his ongoing work 23 for a potential candidate in the Ukraine at that time is, and 24 the importance of any lies about that, or lies about Kilimnik's 25 knowledge about that. 69 1 MR. WEISSMANN: So the work for Mr. itself 2 is not of importance. And if the poll had, in fact, been 3 limited to Mr. , it may be interesting, if they have 4 other aspects, but that is not the focus. 5 What is of interest to us is that the questions in 6 the poll are completely consistent with the ongoing effort, at 7 the very least by Mr. Kilimnik, to promote a 8 9 . Mr. Kilimnik submits a three-page written document in 10 connection with that polling to Mr. Manafort and others to help 11 frame those questions. 12 13 14 It is not true, as Mr. Manafort said in the grand jury, that the poll -- draft poll tests , which he repeatedly says in the grand jury to help 15 explain away this. It doesn't do that. 16 test other people who might be able to 17 doesn't test a whole It tests one. It does , but it . 18 So, the continuity of Mr. Kilimnik's interest -- and 19 by the way, Mr. Kilimnik points out in that documentation that 20 would be able to facilitate Mr. Manafort being 21 the -- that if he were the spokesperson, and denominated as 22 such within the United States, that he would also have access 23 to senior people 24 far as I can go on this record. 25 THE COURT: -- that's as Okay. All right. That's helpful. 70 1 MR. WEISSMANN: I think in the past Your Honor has 2 made reference to potentially, there might be information that 3 would -- could be presented ex parte. 4 that. 5 THE COURT: We're trying to avoid I appreciate that. And I don't know that 6 I need it for this. 7 the hearing, then you can consider whether you want to submit 8 it when Mr. Westling gets me his metadata. 9 I mean, if you think we do at the end of MR. WEISSMANN: 10 THE COURT: Okay. I guess one question I have, certainly 11 did seem to want to keep it under wraps initially. 12 you provided him with the 13 agree that Kilimnik discussed it with him then. 14 to agree pretty readily that if Mr. Kilimnik was in 15 well, yeah, then he met with me there. 16 But, when email, he does seem to And he seemed , That's in Exhibit 206, I guess the 302 from 17 September 12th. 18 him, then we talked about the 19 And he seems to concede: Well, if I talked to So, again, I want to know if we're really talking 20 about a 1001 kind of lie here or something that he corrected as 21 would be reasonable in a proffer situation. 22 MR. WEISSMANN: So, we went through the same 23 analysis. And as I mentioned, just to start with the 24 meeting, if that happened in isolation, you can imagine, even 25 though certainly, to us, there aren't that many in-person 71 1 meetings with Mr. Kilimnik and they're happening right after 2 the inauguration and they're on something that is of 3 substantial interest to -- well, let me just say, at the time 4 there was an enormous amount of attention to Russian contacts 5 in the United States. 6 And so the idea that this wouldn't be on your mind, 7 especially since we know Mr. Manafort took the precaution in 8 August of 2016 of leaving separately -- Mr. Gates and 9 Mr. Manafort leaving separately from Mr. Kilimnik, by 10 February of 2017 there had been substantial focus on General 11 Flynn and others in terms of their contact. 12 something that one would imagine that you would remember. 13 So this is But, again, even leaving that aside, to me, it's the 14 fact that it's coming up in a context where not knowing and 15 anticipating what our evidence was, the first time this came 16 up, Mr. Manafort's plan was to say: 17 up again, and I was dead set against it. 18 context where it keeps oncoming up. 19 He raised it, never came So it's in that I think that the -- turning to the email 20 from Mr. Kilimnik, it is true that he then conceded it, but I 21 think he had to. 22 like you to revisit this. 23 interested. 24 25 That email didn't in any way say: I would I know we ended where you weren't And there's a reason it read that way, which was that there's not a single piece of evidence in this record to 72 1 support the idea that Mr. Manafort was against 2 Every single piece of evidence in the record is that he was in 3 favor of it. 4 THE COURT: All right. . Let me -- before I ask you 5 questions on the defense side of the room, we got a later start 6 than we anticipated. 7 just go through this -- all the questions before we broke. 8 But, I'm not sure what the court reporter's point of view is 9 about that. It's 12:30. I had originally hoped to 10 You're fine? Okay. 11 Why don't we -- if we're still not done by about 12 1:00, maybe we'll break. 13 we keep going for another 30 minutes or so? 14 All right. But would anybody starve to death if Then let's try to keep going. I can tell 15 you now that my initial goal -- which was to take a break, and 16 then come back and make my findings -- is not going to happen. 17 I want to review things more closely. 18 things people give me. 19 There may be additional And so I think what we will do after this is the -- 20 while I'm working on my findings, is the exercise of the review 21 of the transcript, and the determination what can be released 22 or not. 23 same way, a sealed recitation within a public minute order, and 24 ultimately, a public revelation not long after this. 25 And then we'll probably handle the findings in the I had really wanted to do it all today. My schedule 73 1 for the rest of the week is a mess. But we'll figure out an 2 opportunity when I think how long it's going to take me to be 3 done. So let's just keep going for now. 4 So, Mr. Westling, or whoever is going to handle this 5 one, is there, you know, a pattern here of minimizing and 6 understatement and belated acknowledgment after he finds out 7 the government already has the proof when Kilimnik and Ukraine 8 are concerned? 9 MR. WESTLING: Well, Your Honor, I think that the 10 Havana Club meeting is one where the Government raises it. 11 Mr. Manafort, in our view, is forthcoming, provides the 12 information on what happened there. 13 question about: 14 in the future? 15 And then there is the Well, did you then talk about And, you know, all indications were when the email 16 was provided, there was not a lot of resistance. 17 sense of: 18 caught. 19 events are happening -- 20 Oh, this reminds me, rather than: THE COURT: Well, I don't think they're saying he wasn't honest when he said: 22 August 2nd. 23 MR. WESTLING: 24 THE COURT: said: Oh, I've been I think the reality here is that there were -- these 21 25 It was a Oh, yes. I met with him on Right. They're saying he wasn't honest when he And that was the end of it. 74 1 MR. WESTLING: Well, and I think our, sort of, view 2 of what happened was there that he said he was not willing to 3 work on the 4 communication with Kilimnik or anyone else forever. 5 clearly, there is an effort to revisit that in 6 by then, I guess, is after the election and Mr. Manafort is no 7 longer with the campaign at that point. 8 which is again being floated. 9 but that that was not the end of his And which And there's an email, But, I think Mr. Manafort was candid all along that 10 his desire to at that point was 11 minimal, given a lot of bad feelings regarding the 12 . He continued to have a 13 relation with Mr. Kilimnik. 14 he remained open to opportunities over there. 15 He told the Government all along But, I don't think there was anything inconsistent 16 about what he said in saying: I told them I wasn't interested, 17 compared to that the timing was wrong. 18 and we pointed this out in our pleading, there was a 19 significant amount of his resistance that related to Because there was -- 20 21 And so it's presented in August as 22 and it sort of resurfaces that way 23 again in and there is no real followthrough. 24 clearly, that was not the only 25 only one that Mr. Kilimnik was involved in. But, , and it's not the 75 1 I think that, you know, there continued to be 2 discussions. 3 about remembering the 4 I can still see Paul sitting there trying to remember what 5 happened. 6 there on other business. 7 of the meeting, 8 present recollection at that point in the debriefing of 9 Kilimnik. 10 But, all indications, for example, when you talk meeting, I mean, he is -- I mean, He remembers being in . He remembers he was He remembers that at the first part was with him, but he does not have a They show him the proof that Kilimnik traveled there, 11 and he doesn't resist. I mean, he sort of says: Well, that 12 would makes sense, if that's why we were there, but I don't 13 remember. 14 And it's only after he has time to think about it in 15 that context that he then is able to come back and provide the 16 details of what they talked about. 17 this was an effort to try to, you know, do his best to recall. 18 And obviously, you know, the Government suggests that there is, 19 perhaps, some way of looking at it that way, but for all this 20 other stuff. 21 And so I think all along You know, from our perspective, it is exactly what it 22 appears to be, which is an effort to try to recall, and to be 23 helpful on topics that simply were not, you know, as a 24 practical matter, the focus of what questions were necessarily 25 anticipated to go to at any given time. We spent a lot of time 76 1 talking about a lot of other things, and then this would pop 2 back up. 3 So I don't know how helpful that is. 4 those of us who lived through it, it really did look like 5 someone who was endeavoring to remember. 6 THE COURT: 7 MR. DOWNING: 8 9 But I think for All right. Your Honor, one other issue. We pass the mic. Just some of the reference about Kilimnik that's come 10 up by Mr. Weissmann more than once in these proceedings, it 11 should be noted that the Office of Special Counsel had produced 12 interview 302 for an interview of Mr. Kilimnik -- about 13 Mr. Kilimnik from 14 15 16 17 18 . There are documents that you were given regarding Mr. Kilimnik's communications with former 19 -- about this 20 narrative of a 21 matter who gets elected, that the sanctions were going to 22 continue against Russia. 23 24 25 is nonsense because no So I'd just like -- I think you need to consider this rank speculation -THE COURT: Wait. When you say I've been given 77 1 these, when have I been -- 2 3 MR. DOWNING: THE COURT: 5 MR. DOWNING: In these exhibits? Yes, they are. making comments about They go to Mr. Kilimnik . 7 THE COURT: 8 MR. DOWNING: 9 I can point out -- 4 6 They're in the exhibits. All right. So they're in there. But I just wanted -- and also, we can produce, it was part of the 10 information provided to us by the Office of Special Counsel, 11 the interview that shows this guy is 12 . 13 material, I believe. 14 THE COURT: 15 MR. WESTLING: 16 on the It was produced as Brady All right. I didn't know if you wanted to touch of this issue before -- 17 THE COURT: The 18 MR. WESTLING: 19 THE COURT: 20 MR. WESTLING: No. The related to Yes. So, I think the one thing that we 21 would point out, Your Honor, about the poll itself, is that 22 while Mr. Weissmann suggests this was all about 23 the reality is there are two questions that -- 72 and 72A, 24 which really deal with it. 25 alternatives about , And they seem to deal with populous 78 1 would find acceptable 2 3 . So, I don't think it's fair to characterize this as being about 4 . I think the other thing that's important is this was 5 basically a benchmark survey being done for a possible 6 candidate. 7 to better understand both that candidate's viability, but also 8 the issues that the electorate would care about so that 9 Mr. Manafort could make a decision about whether to take on 10 And so it was surveying a variety of issues to try as a client. 11 THE COURT: Okay. Anything else you want to say 12 before I ask Mr. Weissmann if there's anything he wants to say 13 in response to the Brady information? 14 15 MR. WESTLING: I don't think so right now, Your Honor. 16 THE COURT: All right. Is there anything else I need 17 to know? 18 have to make a factual finding about Mr. Kilimnik right now. 19 don't begin to have the full range of information to do it. 20 But, I think your having made the statement about his alleged 21 connection to Russia's intelligence, they've put in the record 22 his connections to the U.S. 23 24 25 I mean, I understand that there's -- I don't think I I And so is there anything else you want to tell me in response to what they've pointed to in this record? MR. WEISSMANN: Yes. Two points. One is to answer a 79 1 question that you had asked previously, and I don't think I 2 really responded to. 3 with respect to Mr. Kilimnik. 4 And the other is to address this issue I do think you do have in the record what is 5 sufficient in terms of Mr. Kilimnik's 6 own recitation, again, in 2018, of 7 lays out, again, what it is that would be needed from 8 and his role. 9 I do think that email, and his where he is a red herring because 10 the issue is Mr. Manafort had said he was against 11 whoever was leading it. 12 evidence that we have and is before you. 13 , That is inconsistent with the other With respect to the Brady information, the defense, 14 as is their right, asked us early on in the case to produce any 15 and all communications with the American embassy in Ukraine. 16 And so we then went to the State Department to get 17 communications that were either direct or indirect by 18 Mr. Manafort with the State Department. 19 encompassed in that search. 20 So Mr. Kilimnik was There is no question that Mr. Manafort had 21 communications with people at the State Department. 22 question that Mr. Kilimnik did. 23 24 25 There's no 80 1 2 But, there 3 are definitely communications that Mr. Kilimnik has with people 4 in the State Department. 5 relevant to this issue before the Court. 6 I don't see how that is in any way But the only reason it was produced is because 7 defense said they were going to make some argument based on it. 8 So we produced it. 9 relevant, but that was not -- relevance has a very minimal We didn't see how it was going to be 10 standard, at least for the Government, in terms of producing 11 discovery. 12 whether it should come in at trial, or not, later. 13 We'd rather just produce it and litigate the issue And then the Court had asked a question about 14 Mr. Kilimnik and the 2018 polling and whether he understood who 15 the client was. 16 reason that's relevant to the Government is, from our 17 perspective, the defendant was trying to minimize his 18 connection to 19 And he was conveying to the grand jury that this was a 20 poll, plain and simple. 21 22 And I wanted to just stress for the Court, the and his view of . And to the extent that they were asking questions about the so-called , that was just one of 23 that was being asked about. 24 with that is, one, it's -- as I mentioned, it's not true that 25 there are many . And the problem 81 1 But, also, when we said: Well, if that's the case, 2 that this was really just a poll for 3 serve this other purpose, how is it that Mr. Kilimnik didn't 4 know that? 5 name should be taken out of the poll for the person who is the 6 client? 7 and it didn't This was -- why is he saying that Mr. And Mr. Manafort, again, now that he's sort of down 8 that road of saying this was just a 9 now explain away how it is that the person on the ground in the 10 Ukraine doesn't know that. 11 them. 12 poll, he has to And he says: Well, I didn't tell And then you have an email -- I mean, it just got 13 worse and worse, where Mr. Kilimnik is saying: 14 , and I'm doing X, Y, and Z with him. 15 I just spoke to And Mr. Manafort then comes back and volunteers, 16 right after lunch: 17 talking about. 18 me, he was caught, and his lies got worse and worse. 19 20 21 22 It must be a different name that he's And the initials don't even work. I mean, to And the relevance is that it was all part of this effort to make this be a sort of sanitized poll just for , with no other purpose in terms of trying to get data that would help support the 23 . 24 THE COURT: All right. 25 MR. WESTLING: Briefly. 82 1 Your Honor, I think that the first thing is that I 2 understand where Mr. Weissmann is coming from. 3 hear any proof behind all of the theorizing about why it was 4 happening the way it was happening. 5 an indication where a poll is being conducted for another 6 candidate. 7 meant or what it might have been, but there's no evidence of 8 any of that. 9 I just don't You know, this is clearly The Government has theories about what it may have I mean, that is purely conjecture. THE COURT: Right. But, I think what gives them 10 cause to be theorizing is the fact that it's described 11 differently on different occasions, and described 12 inconsistently with the communications between Mr. Kilimnik and 13 Mr. Manafort, and that leads them to wonder. 14 But, I think we can go on to the question of the 15 And I don't have that many 16 questions, mainly because I think it's pretty straightforward 17 what you're saying. 18 So, I would want to ask you whether it's part of your 19 contention that he lied about the reason 20 I know initially he didn't even agree that that 21 . , and he didn't even really agree in the 22 grand jury. 23 think there's some suggestion, at least in the 302, as to what 24 the point was of 25 He said it just was public information. . But, I 83 1 2 And so, I'm asking you whether that's part of this, if he was lying about that? 3 MR. WEISSMANN: So, I don't think the Court needs to 4 reach that issue, and I don't know that we've presented 5 evidence on the -- that issue. 6 THE COURT: 7 MR. WEISSMANN: No. No. No. I'm going to answer your question. 10 THE COURT: 11 MR. WESTLING: 12 So you just don't want me to think about it, that's okay. 8 9 You didn't. All right. I'm just trying to, first, deal with what's in the record. 13 And I think that in the grand jury, Mr. Manafort said 14 that from his perspective, 15 admitted at that point was with -- he understood that it was 16 going to be given by 17 to Mr. 18 there was no downside -- I'm paraphrasing -- it was sort of a 19 win-win. 20 , both. , which he to the and That from his perspective, it was -- That there was nothing -- there was no negatives. And I think the Government agrees with that, that 21 that was -- and, again, you're just asking for our -- if we are 22 theorizing, based on what we presented to you, that we agree 23 that that was a correct assessment. 24 25 But, again, for purposes of what's before you on this issue, what his ultimate motive was on what he thought was 84 1 going to be 2 3 I don't think is before you as one of the lies that we're saying that he told. 4 5 It's more that what he specifically said was, he denied that he had told Mr. Gates 6 . That he would not, in fact, have 7 8 9 and that he left it to 10 11 And our view is, that is a lie. That that is really 12 under -- he knew what the Gates 302s were. It's obviously an 13 extremely sensitive issue. 14 from the 15 have -- we can see what it is that he would be worried about, 16 which is that the reaction to the idea that And the motive, I think, is plain , is we can see -- we actually 17 18 19 20 21 would 22 have, I think, negative consequences in terms of the other 23 motive that Mr. Manafort could have, which is to at least 24 augment his chances for a pardon. 25 And the proof with respect to that is not just 85 1 Mr. Gates. 2 Mr. Gates, but you don't have just Mr. Gates's information. 3 You have a series of emails where we know that Mr. Kilimnik, in 4 fact, is reporting 5 6 So that I will say there's no contrary evidence to And probably the best piece of evidence is you have Mr. Manafort asking Mr. Gates to 7 8 . So, it's -- there's -- from three weeks ago, saying: 9 10 . 11 THE COURT: I understand why it's false. And I'm not 12 sure I understand what you said at the beginning, that you -- 13 and I understand why you've posited that he might not want to 14 be open about this, given the public scrutiny that foreign 15 contacts were under at the time. 16 understand what you're saying where you say you agree with him 17 when he said it had no downside. 18 19 20 But, I'm not sure I So, this is an important falsehood because it was false? Or is there some larger reason why this is important? MR. WEISSMANN: So -- so, first, in terms of the what 21 it is that the special counsel is tasked with doing, as the 22 Court knows from having that case litigated before you, is that 23 there are different aspects to what we have to look at, and one 24 is Russian efforts to interfere with the election, and the 25 other is contacts, witting or unwitting, by Americans with 86 1 Russia, and then whether there was -- those contacts were more 2 intentional or not. And for us, the issue of 3 4 is 5 in the core of what it is that the special counsel is supposed 6 to be investigating. 7 My answer, with respect to the Court's question about 8 what it is -- what the defendant's intent was in terms of what 9 he thought I was just 10 trying to answer that question, even though that's not one of 11 the bases for saying there was a lie here. 12 trying to answer that question. 13 14 And so I was just And what I meant by his statement that there's no downside, is that can you imagine multiple reasons for 15 16 17 . 18 THE COURT: 19 MR. WEISSMANN: 20 THE COURT: And I think the only downside -- You meant no downside to him? Yes. You weren't suggesting that there was 21 nothing -- there's no scenario under which this could be a bad 22 thing? 23 MR. WEISSMANN: Oh, sorry. Yes. I meant there was 24 no downside -- Mr. Manafort had said there was no downside to 25 Mr. Manafort doing it. 87 1 THE COURT: 2 MR. WEISSMANN: 3 THE COURT: 4 MR. WEISSMANN: 5 That was where I got confused. Sorry. All right. And meaning all of this is a benefit. The negative, as I said, was it coming out that he did this. 6 THE COURT: 7 Mr. Westling, why would this not fall within the 8 MR. WESTLING: because it's referred to in Mr. Kilimnik's various emails. THE COURT: And because Mr. Manafort told Mr. Gates to do it? 15 MR. WESTLING: 16 THE COURT: 17 MR. WESTLING: 18 Special counsel says they believe because Mr. Gates says so and 13 14 All right. I think the first issue, Your Honor, is what actually happened. 11 12 Okay. category of an intentional false statement? 9 10 Right. Please print this. That's what Mr. Gates says, yes. In an e-mail. But I think that the e-mail says, That's all it says. 19 THE COURT: Doesn't it say bring it to the meeting? 20 MR. WESTLING: 21 THE COURT: 22 MR. WESTLING: I'm sorry? Doesn't it say bring it to the meeting? It says related to a scheduling 23 meeting. Doesn't say anything about a meeting with 24 Mr. Kilimnik, it doesn't say anything about -- just on the same 25 date. 88 1 THE COURT: All right. 2 MR. WESTLING: And importantly, the statements that 3 we're aware of now that Mr. Gates makes that suggest that there 4 was 5 material here, so I may be wrong about this, but we have a 6 note -- a September 27th, 2018 interview which we did not see 7 until this submission was made, where Mr. Gates makes that 8 statement. 9 -- again, there's a lot of Mr. Weissmann has suggested we had all of Mr. Gates's 10 302s where he said this previously. 11 before that interview. 12 testimony from Mr. Gates compared to what he said in prior 13 proffer sessions, where I think he said something more like it 14 was more what was publicly available. 15 I don't think he said it And so as far as we know, that's new So there seems, to me, to be at least a meaningful 16 factual question about what actually happened. 17 we're struck by the fact that there's no evidence here of the 18 emails or anything else that would have 19 20 Mr. Kilimnik. THE COURT: 25 One of the things you seem to suggest is that, really, the 23 24 And so, again, special counsel may have that, we just don't have it. 21 22 If it in fact happened. And, you know, . And if that's true, then why was being paid so much ? I don't really understand that argument. 89 1 MR. WESTLING: I think the argument, Your Honor, is 2 that it's only really significant if you do what it is that 3 people like Mr. Manafort and others 4 5 6 7 . the kind of 8 9 that I'm able to look at on, you know, site and be able to figure it out on my own. very detailed 10 It's not This is on a level that is very focused. THE COURT: That's what makes the showing of it, 11 which you're saying isn't necessarily established by the 12 record -- 13 MR. WESTLING: 14 THE COURT: Right. But if I determine that it is established 15 by the record and in his statement -- but that's what makes it 16 significant and unusual. It's not the sort of thing you would 17 18 . 19 20 MR. WESTLING: But it's not the kind of thing you would give to an audience that would have 21 . I mean, I look at , and there's copies 22 of it in the exhibits, and it doesn't mean anything to me as a 23 person who has 24 time. 25 this country for a long So I don't know how -- the story that's being 90 1 how it's going to be any use to anyone. 2 It would seem to me if the goal were to help Mr. Manafort's 3 fortunes, that some other kind of 4 public, more 5 6 something more might help. But the that we're talking about here is -- it, frankly, to me, is gibberish and I can't imagine it was helpful 7 I don't even know, looking at it, whether it 8 says . 9 It's not easily understandable, unless you are , 10 in my view. 11 make sense why you would do that. 12 suppose, what the benefit of doing it would be, if the other 13 person 14 And so it doesn't -- you know, it just doesn't . THE COURT: Doesn't it reflect particular 15 ? 16 17 MR. WESTLING: different 18 19 . . I mean, it does -- it reflects But again, I don't know how you would And I think it's not clear to me that, again, . I think the other thing is that to the point about it 21 being 22 the most recent , it was the most recent, from what we can tell, 23 25 Yeah. that there's any evidence 20 24 And more importantly, I but I'm not sure. That would have been relevant to a meeting they were having within the campaign. THE COURT: I think Mr. Gates was saying it was 91 1 2 3 . MR. WESTLING: But he doesn't ever say it was shared at that meeting, Your Honor. He never sayings we 4 , which, if it 5 had happened, you would think he would say it, and that would 6 make the connection of the e-mail 7 Mr. Gates doesn't say that. 8 9 THE COURT: . Didn't he say it happened at the meeting where they had to leave by different doors and all that? 10 Doesn't he connect 11 Havana Club and the coming and going -- 12 13 14 But to the meeting and the MR. WESTLING: I don't believe so. I stand to be corrected, but I don't believe he makes that connection. MR. DOWNING: Your Honor, one other point. I know 15 this Court hasn't had the opportunity to review the testimony, 16 probably, of Mr. Gates from Eastern District of Virginia, but 17 he was found so incredible by the jury that a juror said to the 18 press that they completely disregarded his entire testimony. 19 So to the extent that this Court would cite Mr. Gates as any 20 evidence, I think a review of the findings of the jurors in 21 EDVA should be undertaken because if he is not corroborated -- 22 THE COURT: 23 MR. DOWNING: 24 THE COURT: 25 Don't. Don't. Your Honor, it's a fact. I'm not going to base anything on what one juror said to the press. 92 1 MR. DOWNING: Completely disregarded. The entire 2 jury completely disregarded his testimony, Your Honor. 3 a public record of the statement. 4 There's But to the extent you're relying on something 5 Mr. Gates said uncorroborated, we would really have grave 6 concerns about that. 7 THE COURT: 8 9 10 Well, I find the e-mail from Mr. Manafort to Mr. Gates corroborative. MR. DOWNING: THE COURT: It does not say -- I'm going to look at it again. But I 11 think the timing of it and the substance of it is consistent 12 with what Mr. Gates said was going on. 13 that even you have made the argument to me that every single 14 thing in the Gates 302 should be thrown out because he is 15 completely unbelievable on every single issue. 16 you said is he doesn't remember everything either so, you know, 17 if we can forgive a failure of recollection on one side, we 18 should be able to forgive a recollection on the other side. 19 MR. DOWNING: And I don't believe I think what Actually, Your Honor, Mr. Westling 20 pointed out to the Court that when previously interviewed, 21 Mr. Gates never gave this kind of detail; he never said this. 22 So we find it very suspect, late in the day and sometime in the 23 middle of or after his performance in the Eastern District of 24 Virginia that cased a juror to say what I just said, that 25 they're getting this information from him all of a sudden. I 93 1 think the Court has to consider that, too. 2 his agreement with the Court -- and quite frankly, I don't 3 think anyone from the Office of Special Counsel would say that 4 they felt that Mr. Gates did anything but implode on the stand 5 there. 6 And the terms of So I do think it's something the Court should 7 consider. 8 come up in prior 302s, I think is very important and I think 9 it's something we can address. 10 But the fact it's recently fabricated, it didn't THE COURT: I need to ask the Office of Special 11 Counsel about something ex parte because -- and so I apologize 12 for that, but I need to do that. 13 them, they tell me there's no problem with sharing it with you. 14 But I have received information in this case, in this binder, 15 and in other means, and I just want to make sure I understand 16 something. 17 18 19 And it may be after I talk to And so, I can't -- I need to ask -MR. DOWNING: We would object. But we don't know he -THE COURT: I note your objection. And I will deem 20 your objection also to be a request that what we're about to 21 discuss be revealed to you. 22 I'm going to ask. 23 done, or you can just have him come to the bench for a minute. And that will be the first thing And we can do it at the end, after we're 24 MR. DOWNING: 25 THE COURT: That's fine. All right. Can you just approach the 94 1 bench? 2 the defense for the moment. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And so this portion of the record is even sealed from (Bench discussion:) 95 1 2 3 4 5 6 7 8 (Open court:) 9 THE COURT: 10 taking a brief break. 11 (Pause.) 12 THE COURT: 13 All right. It looks like Mr. Manafort is All right. All right. Going back on the record of this proceeding that's still sealed, but not ex parte. 14 Mr. Weissmann, with respect to the specific argument 15 that they just made that this was a new twist by Mr. Gates, 16 only in the 302 that they most recently received, do you have 17 anything you want to add to that, respond to that? 18 MR. WEISSMANN: Yes, I do. So, I would direct the 19 Court's attention to Exhibit 236, which is a 302 with respect 20 to Mr. Gates, and the date of that is January 30th, 2018. 21 And -- 22 THE COURT: 23 MR. WEISSMANN: 24 25 What exhibit number is it? 236. And on page 3 it discusses the August. 2nd meeting. And I can tell you that Mr. Gates -- I 96 1 think it may have been his first proffer session -- told us 2 about 3 you know, experienced defense counsel and the nature of the 4 investigation, 5 short order. 6 7 . As you could imagine with, that would come up in I can also represent that at the trial in the Eastern District of Virginia there was a side bar where Mr. Andres 8 9 . And so, this is -- this is 10 not new information, either because Mr. Gates has changed his 11 testimony in any way or that the defense wasn't apprised of it. 12 I also, in terms of referencing the August. 13 2nd meeting and the connectivity in terms of what 14 Mr. Gates has said about it and also corroborating information, 15 if you look at footnote 80, eight zero, there is a reference to 16 the series of emails that Mr. Kilimnik sends that reference 17 and what . 18 not talking about 19 obviously, doesn't go to the direct issue of 20 . It's That, . 21 It does go to the issue of -- that Mr. Westling 22 raising, which was this doesn't -- it's not really capable of 23 being 24 unusual for 25 purpose. If it's meaningless, it's wasn't going to have any And I would note that Mr. Kilimnik -- also, the Court 97 1 can make its own finding, as well, by looking at 2 because that is the -- that is an exhibit. 3 I would also note that Mr. Kilimnik worked with 4 Mr. Manafort for many, many years 5 working on 2018. So he would very much know 6 7 . 10 11 12 13 But I also think it would just -- it wouldn't make a lot of sense to 8 9 and in fact is . And, in fact, even if it was difficult and it required they had it. And then Mr. Gates, in -- I think I referred you to 236, on page 3, Mr. Gates talks about the August. 2nd meeting and actually has Mr. Manafort walking Mr. Kilimnik through 14 15 16 17 18 19 on August 2nd of 2016. So, there is connectivity to what Mr. Gates has said and to the various documentation. 20 In terms of the credibility of Mr. Gates -- 21 THE COURT: 22 23 24 25 When you just said, Which had been specifically described, by whom, where? MR. WEISSMANN: You say -- Mr. Gates had just said that at the meeting, that Mr. Manafort, in describing . 98 1 THE COURT: Okay. 2 MR. WEISSMANN: The -- with respect to Mr. Gates's 3 credibility, as I mentioned, there's no contrary evidence in 4 the record. 5 But, one thing I would note, even if the Court were 6 to want to make sure that there was corroboration for what 7 Mr. Gates said, you have that. 8 also have that because, if you want to look at the Eastern 9 District of Virginia case, Mr. Manafort has now pleaded here to 10 and admitted the crimes that he was charged with in the Eastern 11 District of Virginia. 12 Mr. Gates said he did in committing bank fraud and FBAR crimes 13 and tax fraud is something -- and as well as all of the crimes 14 before you, Your Honor, has actually been admitted now by the 15 defendant. 16 Not just in the emails, but you In other words, what it is that So it's hard to say that Mr. Gates is an abject liar 17 and is making this all up when the crimes he said that 18 Mr. Manafort did, Mr. Manafort has now said he did as well. 19 THE COURT: All right. 20 MR. DOWNING: I think defense counsel would like to 21 think about possible -- think about the implications of this 22 Court considering anything that came from Mr. Gates. 23 like to think about whether or not -- maybe there should be -- 24 Mr. Gates' testimony taken and us being able to cross-examine 25 him. I think it might be very important. We would 99 1 If this Court is going to consider at face value 2 anything Mr. Gates has said -- and by the way, throughout his 3 FBI interviews, the FBI continues -- they have it as reminders, 4 when he gets it wrong, if you look for "reminded Mr. Gates," if 5 you did a search, it occurs again and again and again. 6 even at trial he couldn't really get a handle on how many times 7 he lied to the Office of Special Counsel. 8 9 And So we have grave concerns that this Court might actually have to take testimony. And we're entitled to 10 confront Mr. Gates, if this Court is considering his statements 11 to the FBI. 12 THE COURT: Well, obviously I'm considering 13 everything in the record, as I was -- as I said I would. 14 has made statements to the FBI, they've been proffered to me, 15 you've known about them since the minute this issue was listed 16 as one of the issues. 17 to stand on the record. 18 He And you said repeatedly you're willing MR. DOWNING: And I will admit, on my end I won't 19 take it as a failure on my part because I did not think this 20 Court wouldn't take into consideration the fact how he was 21 found to have no credibility at all by the jury over there. 22 THE COURT: 23 MR. DOWNING: 24 25 You cannot keep saying that. I can keep saying it, Your Honor, because it's true. THE COURT: First of all, you're asking me to make a 100 1 determination about what 12 jurors concluded because of what 2 one juror was quoted in the paper as saying, which right now I 3 don't even have in front of me. 4 decided to vote on whether or not we could find him beyond a 5 reasonable doubt, putting his testimony aside, which is 6 different than saying we agreed, as 12 people, that nothing he 7 said was true. 8 MR. DOWNING: 9 THE COURT: 10 11 That's -- that's -- That's totally different. MR. DOWNING: I disagree with you. But I could go and get the press account of that. 12 13 But I believe she said we THE COURT: account. I don't know. I don't have the press The press account is not evidence. 14 MR. DOWNING: 15 THE COURT: 16 MR. DOWNING: I have a bigger concern, though. All right. I don't know if providing you with a 17 copy of the transcript of the testimony would help you in 18 assessing his credibility. 19 THE COURT: I am aware that he was cross-examined 20 fiercely, that his credibility was shaken enormously, that 21 there were a number of issues that you argued successfully that 22 he was not a good source, that there was evidence produced that 23 he benefited from a lot of the financial things that were 24 wrong, and that his credibility was attacked. 25 his credibility was also attacked on a number of issues that I believe that 101 1 are -- were potentially quite collateral to the trial in the 2 Eastern District of Virginia and enormously collateral to the 3 issues that I have to decide. 4 But, I don't believe, notwithstanding the jury's 5 verdict and the split verdict and the fact that he was 6 cross-examined the way he was and that it had the effect on the 7 jury he had, that binds me to determine that not one word he 8 said to the Office of Special Counsel was true. 9 think your position in the Eastern District was that not one 10 I don't even word that comes out of the man's mouth is true. 11 MR. DOWNING: Well, Your Honor, I'm going to agree 12 with you on that issue. 13 didn't take before as being part of your consideration, is your 14 understanding of what happened to him and what his performance 15 looked like and that his credibility was truly called into 16 question in, you know, in a very serious way. 17 that you consider that when considering anything that's been 18 proffered by the government from Mr. Gates's cooperation with 19 the FBI and the Office of Special Counsel. 20 THE COURT: But, you just said something that I We're asking Well, the more specific question is, are 21 you asking for an opportunity to cross-examine him about the 22 specific allegation, and only the allegation about whether 23 24 25 , or do you want to stand on the record, which is that he told the FBI . We have the emails that we have that say what they say 102 1 and don't say what they don't say, we have the circumstances 2 surrounding the meeting. 3 establish to me by a preponderance of the evidence -- not 4 beyond a reasonable doubt -- that Mr. Manafort's testimony 5 about that was not accurate? 6 7 MR. DOWNING: And the question is: Does that So if we could confer over the break and have an answer for you afterwards, that would be -- 8 THE COURT: 9 MR. DOWNING: 10 THE COURT: Okay. That would work for us. Okay. I think we only have a couple more 11 issues to discuss. 12 break because I think it would be helpful to resolve the matter 13 about whether what we discussed can be discussed with the 14 defense. 15 But I think it may make sense to have a I'm actually now, as I'm thinking about it more 16 directly, thinking that it can. 17 things were said and revealed and when they weren't, that would 18 be helpful. 19 break we will discuss the answers to the questions I asked 20 during the ex parte piece of this, what your position is on 21 whether Mr. Gates needs to be in this courtroom or whether -- I 22 mean, the agent can -- I don't think you're disputing anymore 23 that Mr. Gates said it to the agent. 24 what Mr. Gates said to the agent is true. 25 But if we can determine when I think we should all take a break. MR. WESTLING: And after the You're disputing whether Yes, Your Honor. Is that fair? 103 1 THE COURT: All right. So, whether we need to have a 2 hearing on that because I am, actually, particularly concerned 3 about this particular alleged false statement. 4 think we need to think about what the purposes I'm being asked 5 to find whether or not this is, what the burdens are, etcetera. 6 So, you're entitled to think about it, although I don't think 7 this has come as a surprise, that this was the issue, since 8 this was the only evidence they pointed to as the fact that 9 this fact was false, was Mr. Gates's 302s and the e-mail. 10 MR. DOWNING: But I also Your Honor, I would say didn't 11 completely allude us, but your take on how he was corroborated 12 caused great concern on our part, and that's why I'm raising 13 the issue. 14 THE COURT: The only thing I said that corroborated 15 his testimony about this matter was the e-mail within -- 16 related to on this date. 17 MR. DOWNING: 18 THE COURT: Yes. And you're saying read more carefully, 19 Judge, because it doesn't say 20 will do that, but -- 21 MR. DOWNING: 22 THE COURT: 23 24 25 Is that correct? to the meeting. So I I doesn't say that, Your Honor -- -- I do believe that that is corroborative. I am not pointing to anything because I am not relying on anything that happened in the trial in the Eastern 104 1 District of Virginia. 2 that if I read the newspaper, I would know that the jury 3 discounted every word that came out of his mouth. 4 thought that was something of an overstatement, but I wasn't 5 there. 6 I was just responding to your suggestion And I I haven't had an opportunity to consider the 7 evidence. I think it would be entirely inappropriate for me to 8 rely on my understanding through the media of what took place 9 in that trial. 10 others. 11 the others. 12 at the time. 13 I know he was convicted of some counts and not I know he has now sworn to me that he was guilty of I know that you attacked Mr. Gates's credibility And I know all that. But the question is: Is he lying about this? And 14 I'm not going to base whether he was lying on this about a 15 proceeding that did not take place before me, that is not part 16 of the record in this case. 17 MR. DOWNING: 18 THE COURT: Understood. All right. All right. Just to make sure 19 that I don't pass out from hunger, we are going to take a 20 break. Can we resume at 2:15? 21 MR. ANDRES: (Nods head.) 22 MR. DOWNING: 23 THE COURT: 24 (Recess.) 25 THE COURTROOM DEPUTY: (Nods head.) All right. Thank you, everybody. Your Honor, recalling criminal 105 1 action No. 17-201-1, the United States of America v. Paul J. 2 Manafort, Jr. 3 The defendant is present in the courtroom. THE COURT: All right. Let me start with you, 4 Mr. Weissmann. 5 we talked about, that you can add publicly? 6 Is there anything further you can add to what MR. WEISSMANN: Yes. Yes, Your Honor. So, we 7 haven't finished our review, but we believe that the material 8 that you asked about was redacted. 9 THE COURT: 10 Okay. MR. WEISSMANN: However, I would like to direct your 11 attention to two exhibits in the record. If you recall, I 12 mentioned that I recalled that Mr. Gates had, very early on in 13 his cooperation, given us information about 14 And there are two 302s that are dated in, I believe, both in 15 January of 2018. 16 connection with his proffers. . So before he actually pled guilty, so in 17 So, the first one is Exhibit 222. And if you look at 18 page 17 of that exhibit, there's a long explanation of 19 communications with 20 refer to 21 Mr. Manafort. 22 January 31st, 2018. 23 counsel in connection with the Eastern District of Virginia 24 trial. 25 previously to page 3, and I would also refer you to page 5. that at the direction of And then if you look -- and that is dated And that was, of course, provided to And Exhibit 236, and I believe I referred you 106 1 Both of those refer to 2 discussions of the -- discussions of 3 and also refer to the at the August. 4 2nd, 2016 meeting. 5 THE COURT: All right. I will look at all of that. 6 So for right now, I'm going to leave the little conversation 7 that we had ex parte, ex parte with your objection noted. 8 9 10 MR. WEISSMANN: Judge, we will continue to look to see if there is any portion that was unredacted to confirm that. 11 THE COURT: Okay. I mean, mainly I was interested in 12 the timing that you've just provided. 13 the question. 14 said. 15 So, I think that answers And we'll all look at these to see what was With respect to his credibility, I absolutely 16 recognize defendant's right to argue to me that I should take 17 anything he says with a grain of salt for whatever reasons 18 defense believes I should take it with a grain of salt. 19 However, I wanted to refresh my recollection as to what I read 20 publicly at the time. 21 that I believe I read at the time and, indeed, there was a 22 juror who spoke publicly. 23 she wanted the public to know that while she wanted 24 Mr. Manafort to be not guilty, the evidence was overwhelming. 25 And so, I went back and read the article She spoke publicly because she said She indicated that the only reason he was not 107 1 convicted on all counts was because of a lone holdout in the 2 jury. 3 And reportedly, she did say, as I thought I recalled, some of 4 us had a problem accepting his testimony because he took the 5 plea. 6 paperwork. 7 anything to preserve himself, that's just obvious in the fact 8 that he flipped on Manafort. She did not attribute that to Mr. Gates's credibility. So we agreed to throw out his testimony and look at the And then she added, I think he would have done 9 So, I don't believe -- there's certainly not anything 10 in this record for these proceedings, or the public record, for 11 that matter, that supports your argument that I should consider 12 the fact that the jury unanimously concluded he was a liar, as 13 was reported in the press by a juror, and threw out his 14 testimony. 15 articles reported. 16 newspaper article or what happened in the Eastern District of 17 Virginia anyway, but I believe your argument was a little 18 hyperbolic. 19 I don't believe that that is what the newspaper Not that I would have relied on the As I said, you are free to argue that his credibility 20 is suspect for whatever reasons you wish to advance, but I 21 don't believe the jury verdict is emblematic of that, and 22 certainly there's nothing in the press that's emblematic of 23 that. 24 credibility issues with the judge who had the opportunity to 25 view Mr. Gates's demeanor. You will have to argue acceptance of responsibility and And should Mr. Gates's credibility 108 1 be important to that, then that can be argued to that judge. 2 But with respect to me, I think you have to point to 3 some facts in the record that should lead me to discount what 4 he said, and the newspaper account of what a juror said is not 5 one of them. 6 to read your cross-examination of Mr. Gates, you're welcome to 7 give it to me. 8 9 10 you want to have a hearing on this particular issue that involves an evidentiary presentation? MR. DOWNING: THE COURT: And I must tell Next -- I won't do this anymore. I did it for your convenience, because sometimes -- 15 16 We have, Your Honor. you that sitting and talking to the Court is very strange. 13 14 But that's where that stands. So, have you had further consideration about whether 11 12 If you believe it will be helpful and you want me MR. DOWNING: No, I'm afraid the next time I go to court, if I don't stand up... 17 THE COURT: I do it usually for pretrial conferences 18 where there's just so much back and forth and so much in front 19 of you, to keep everybody -- to spend an extra hour walking 20 back and forth. 21 MR. DOWNING: 22 THE COURT: 23 everyone. 24 up. 25 Sure. I certainly didn't mean to discombobulate And I appreciate the fact that you all like to stand MR. DOWNING: We did have a conversation over the 109 1 lunch break, and what we would like is just an opportunity, 2 with the record that's in front of the Court, to file some 3 supplemental briefing on what happened in Court today. 4 some of the references back and forth, even for us to follow 5 from earlier 302s to later ones, it would just be nice if we 6 had an opportunity to go back through that. 7 I understand we can get an expedited transcript 8 tomorrow morning. 9 with the Court on Friday, if that would be possible. 10 And And we would be willing to file anything THE COURT: I can tell you that I would not be able 11 to be here and rule before Friday anyway. 12 you can also attach anything else you want me to consider. 13 all needs to be filed -- can we say by noon on Friday? 14 MR. WESTLING: 15 THE COURT: So, we can do that, It That's fine, Your Honor. And anything the government decides it 16 wants to supplement with. 17 arguments very clearly. 18 everyone has asked me to read with all that in mind. 19 think I needed to have it all written out for me. 20 see if the 302s back up your characterization or your 21 characterization, and I don't need it all written out again. 22 So, if you want to, in a very abbreviated fashion, point my 23 attention to something, feel free. 24 25 I really do think I understand your And so, I will read all the things I don't I'm going to But, please, I think you all know me well enough to know by now that I have heard what you said, I understand your 110 1 arguments and I'm going to look at everything in light of 2 everything that both of you have told me. 3 stop you from giving me what you think I need to see in 4 addition. But I'm not going to But only in addition. 5 MR. DOWNING: 6 THE COURT: Understood. All right. So is that a long-winded way 7 of telling me that we are not insisting that Mr. Gates testify 8 in this courtroom and be cross-examined again? 9 MR. DOWNING: 10 THE COURT: 11 MR. WESTLING: 12 MR. DOWNING: 13 THE COURT: I didn't think I was. I'm sorry? Yes, it is, Your Honor. Yes. All right. I mean, when I asked you, do 14 you want to hear from him, you said you wanted to file 15 something. 16 when this record is concluded, we're done with the record. I just want to make sure you're saying we're done; 17 MR. DOWNING: 18 THE COURT: 19 20 21 Correct. All right. Unless you want to send me the metadata or whatever other exhibits you want to send. Okay. I think we can go on to category IV, the other DOJ investigation. This involved the special -- the 22 that was looking into 23 24 25 . The allegation is that the defendant 111 1 offered a version of events that downplayed 2 role and/or his knowledge. 3 prior involvement of the 4 inconsistent with and less incriminating of 5 he had already said during the proffer stage and now consistent 6 with what Mr. 7 the session where he watered down what he said before the plea, 8 he had to be redirected by his lawyer more than once. 9 ultimately, I believe, he did then repeat what he had said Specifically, his knowledge of any that was himself was telling the FBI. than what And that in That 10 originally, although I can't recall that at the moment. 11 I'll give you a chance each to just argue briefly what you want 12 me to make of that. 13 MR. WEISSMANN: So So, Your Honor, this, like the 14 instance where we were talking about Mr. Kilimnik and his 15 liability for Count 2 of the superseding information, this is 16 one where I think it's important to focus on the details of the 17 story that Mr. Manafort tells, because it's quite dramatically 18 different. 19 some details of a basic core set of facts. 20 This is not I forgot something or I need to augment The story that was told to us before he entered into 21 his plea agreement was of particular note to the government 22 because it suggested sort of a path that we thought was 23 potentially optimistic in terms of providing information. 24 25 And there was a detailed account of -- from Mr. Manafort of Mr. providing information about a 112 1 who was 2 3 And there also was a discussion of whether Mr. 4 believed 5 there was a discussion with the 6 to needing to get 7 resolve that issue. 8 9 10 , and he had said he did. And then who linked that to That -- so this is one where there are real details being given. And the next version that happens, what we, of course, then, as we noted, brought 11 was relevant to that investigation, and had them 12 come here. And the story omitted everything, basically, about 13 Mr. saying that and, instead, there was a very watered- 14 down version related to Mr. 15 Mr. Manafort had previously said, I did not want to be involved 16 in this at all. 17 and -- who specifically, So this was directly contrary to the statement 18 earlier that Mr. -- when Mr. 19 called, he said, essentially, I'm on it, don't get involved. 20 This was a very, very different story that was being told and 21 then basically had to be sort of walked back, having seen notes 22 that were described as being the notes that had been taken by 23 defense counsel of that prior session. 24 25 , he had said had previously There's one other point I was going to make which just now has alluded me. If I can have one moment. 113 1 (Pause.) 2 MR. WEISSMANN: Ms. Rhee has reminded me of it. So 3 one thing that we do think is note is the way in which this 4 initially came up. 5 declaration, which is the way this initially came up is that we 6 were asking questions about an e-mail that Mr. 7 written about a potential way of saving the candidate. 8 sort of paraphrasing it. 9 explaining away that e-mail. And it's in Special Agent Weiland's had That's And this was a way of explaining, or 10 And if you want to ask what do we think is going on, 11 we think that the defendant realized that he thought better of 12 this, this -- what he said was actually not going to help and 13 having the 14 this is now relevant to what is a there and making it really obvious 15 16 walked back this allegation so there was -- there was no 17 information that could be helpful with respect to either 18 Mr. 19 investigation. 20 or the in furthering that It is also useful to know that detailed account was 21 offered by Mr. Manafort without prompting. 22 when he was asked about that 23 provide all of those details. That was his -- e-mail, he proceeds to 24 That's it, unless there are other questions. 25 THE COURT: Well, I guess I have a question that I 114 1 started with at the beginning, which is we've all agreed that I 2 don't actually have to find whether you decided in good faith 3 that he violated the terms of the plea agreement by not being 4 totally forthcoming and candid and all the things that he 5 agreed, that they're not contesting that. 6 necessary, but I don't think there is any quibbling about 7 whether I could find that he did in fact violate the plea 8 agreement. 9 And it may not be I think where the dispute is, whether he 10 intentionally lied, which you equated, at least in your initial 11 pleadings, with committed a crime while in a cooperation state, 12 and that that's highly relevant to sentencing in a number of 13 ways, including but not limited to acceptance of 14 responsibility. 15 And so, we have a couple of instances where even if I 16 agree with you, when he thought about what he would like to 17 say, that what he decided to say was not true, that it was 18 corrected within the same session, perhaps the prompting of 19 counsel, but, indeed, the record was corrected. 20 it -- I'm not sure that is something that a prosecutor would 21 prosecute as a criminal false statement necessarily, although I 22 think it is something that a prosecutor could definitely say 23 I'm done trying to cooperate with this fellow who we have to 24 pull his teeth every time. 25 And so, I find And so, I guess the question is does it matter, for 115 1 my purposes -- and I know we started there, but this is a good 2 example of it -- if he fixed it or if he never fixed it, 3 especially if it got fixed in the same session? 4 MR. WEISSMANN: So, I think that the issue of whether 5 it was the same session or not is a factor that I would submit 6 is a weak factor. 7 can imagine situations where somebody remembers something, they 8 see something and it refreshes their recollection, or just in 9 thinking about something remembers more details. 10 I can't say it's totally irrelevant. You So it's not that it's irrelevant, but it shouldn't be 11 the case that whether the government brings something up at 12 that session or waits to talk to defense counsel afterward, at 13 the end of the day, and then says here's some additional 14 information, this isn't making sense, and then the next day 15 there's a different version, that that -- that the fact that 16 it's during one session is -- should be not just dispositive 17 but, frankly, all that relevant. 18 THE COURT: I think that the -- Well, even if it's the next day, and it 19 shouldn't depend on vagaries of when you look at the lawyer and 20 raise your eyebrows, what does the fact that he changes it -- I 21 mean, I understand the ones where he changes it multiple times 22 different ways and throws in some new details. 23 says -- this is a close example, where he said X and then he 24 said Y and then he went back to X -- 25 MR. WEISSMANN: But if he So, I would like to address, first, 116 1 this issue of, like, that the government wouldn't normally 2 prosecute it. 3 that we've already told you we have no -- we're not intending 4 to do that. 5 we're saying in this, or, frankly, in our view more egregious 6 ones, or that's something that that's our current intent. 7 And -- but I don't think that -- and, of course, we do agree 8 with you that it's relevant to the issue of, you know, should 9 the person still be a cooperator? 10 I don't think that's the standard in the sense We are there. And so that this is not one where But it doesn't change the fact that the person is 11 saying something that's not true, that it's intentionally 12 lying. 13 not true, they're confronted, and they realize it doesn't work 14 and they go backwards. 15 and deeper. 16 the initial announcement of what they're saying and whether 17 it's intentional or not. And there are instances where someone says something is 18 There are others where they go deeper Maybe one is less egregious, but it doesn't change Obviously, if it was something so minor in detail 19 that the Court thinks it wasn't intentional at the outset, game 20 is over. 21 back to the initial version about being confronted and what 22 their decision is or whether they dig deeper should change the 23 initial issue. 24 25 But I don't think that's the issue of whether they go I do think that all becomes, if you were to find that the initial pronouncement was intentional, I think it's all 117 1 then a sentencing factor for the Court as to how to consider 2 it. 3 something that the Court considers in terms of how it affects 4 the sentence. 5 certainly not the breach issue, but I don't think that it 6 changes the fact that it is pertinent. 7 The fact that it may not be individually prosecuted may be But I don't think that it would change -- And then just finally, I do think if the Court was 8 trying to address also the issue of whether it hits all the 9 elements of a false statement in terms of is it material to an 10 investigation, I mean, what we've tried to do with each of 11 these is put in enough context to show the materiality here, 12 the whole -- 13 14 THE COURT: I understand the materiality in this circumstance. 15 MR. WEISSMANN: 16 THE COURT: Okay. All right. Mr. Westling, this does seem 17 to be a stark departure and then return. 18 I should make of it? 19 MR. WESTLING: So, what do you think Your Honor, first, I think to special 20 counsel's point, there was this first discussion during the 21 proffer leading up to the plea where a lot of detail was 22 provided and then clearly what is going on here is that, it 23 seems to me, he's going over the story, it's just at a very 24 high level. 25 you know, some point where it's, like, no, that's really not He's not going to the details and then there's, 118 1 where we are, we have to reset, and there is a discussion 2 off the record with counsel and sharing of notes to refresh 3 recollection. 4 I mean, again, keeping in mind this is how ever many 5 number of sessions along the way, and the fact that topics 6 continue to change. 7 when Mr. Manafort was reoriented, he had no trouble repeating 8 what he had said previously. 9 experience, this is the kind of thing that happens in these And I think there was just, in this case, And I just think, from my 10 meetings. 11 idea that there's some intentional effort to mislead. 12 Obviously, you know, whether anybody remembered it at the 13 moment or not, you know, the prior testimony was of record. 14 And he had given it voluntarily. 15 I don't think it necessarily in any way supports the So, you know, there are times when just -- the day 16 gets off to a start that doesn't work very well. 17 that a lot in these sessions, where the difficulty of being 18 transported, of, you know, his physical and other 19 circumstances, meant it often took a little while to get back 20 into the groove each day that we got together. 21 this really fits squarely into that. 22 reoriented he fought the issue or suggested that he hadn't been 23 truthful the first time, or to the extent there was any 24 discrepancy, he wasn't trying to correct it. 25 And we found And I think It's not that once he was This is the sort of thing you want someone to do if 119 1 they get it wrong at some point. 2 wrong isn't always because they're trying to mislead. 3 think, motive-wise, there's really zero reason here. 4 the same prosecutors that heard the story before. 5 the extent you go back over it and say, wait a minute, 6 remember, he gave them the story. 7 is, of course, natural to have whatever suspicions people have. 8 9 And the reason they get it And I These are And so to And I think, you know, it But I think there is nothing in this record to suggest that there was some intentional effort to sort of 10 provide, you know, an incomplete or inaccurate version of what 11 happened. 12 THE COURT: I do think, to quibble with maybe the 13 first thing you said, where you said he started at the level of 14 generality and didn't add the same amount of detail he added 15 the first time, but then he was happy to add the details, 16 that's very different than telling a different detail than the 17 detail you provided the first time. 18 a -- it was a very generous characterization. 19 MR. WESTLING: I don't think that's quite Again, I'm sort of reading the 20 documents like everyone else. I think if you compare what's 21 being said, there is a discussion of a conversation with 22 Mr. 23 issue is and it takes prompting to get into the details. 24 it doesn't seem to me that it is a completely different version 25 of anything. over an issue, there is an elaboration of what the But 120 1 THE COURT: 2 want to tell me about this one? 3 All right. MR. WESTLING: Is there anything else you I think, to the point that the Court 4 has made in its questioning, you know, there is a situation 5 that occurs where someone comes into a session, you know, you 6 move through it and corrections get made. 7 contemporaneously, you know, within really just a few minutes, 8 an hour of break or whatever it was over lunch. 9 it just isn't a situation where the government, you know, had 10 They were made But, I mean, any adverse impact from this. 11 I mean, you know, it was a misstep. And it happens, 12 but I don't think this fits in that category of, gee, let's 13 come in today and deceive the government. 14 are the facts and I don't think the factual record supports 15 that. 16 17 THE COURT: All right. I don't think those Is there anything you feel you need to add? 18 MR. WEISSMANN: Just two things, briefly. 19 One, I don't think adversely impact is the standard, 20 but when -- assuming that the Court were to find there is a 21 lie, that is the adverse impact in terms of the utility that 22 can be made of the cooperating witness. 23 Second, I would just ask the Court -- I know the 24 Court is incredibly detailed -- to look at the initial story 25 and the details of it and then look at the next version and 121 1 then the next version. 2 after he reads the defense lawyer's notes and then only later 3 comes to saying what is initially said. 4 Because there is another version even And I do think this is one where this is not the 5 situation where -- and the way we look at this, where simply a 6 mistake -- the stories are so dramatically different about 7 significance where there was enormous attention 8 to this issue, that we're not talking about -- again, there 9 were many instances which we are not bringing to the Court's 10 attention because our view is they easily could be mistakes 11 about minor details of dates and times and names. 12 can happen, where there's no concern about is it intentional. 13 All of that This rises to such a level and it goes really to the 14 heart of what 15 have such a different version, we just don't think that's the 16 kind of thing that somebody just makes a mistake and, you know, 17 has a bad day. 18 THE COURT: that -- to All right. Well, that leads me into No. 19 5, the contacts with the administration. And of all of them, 20 this is the one where I have the most difficulty figuring out 21 where the real contradiction is of moment to the investigation. 22 You say that what he said was false because he did in 23 fact agree to have messages sent to the administration on his 24 behalf. 25 other people contact the And you point to evidence in which he offered to have on behalf of Mr. , 122 1 for example, or to press buttons. 2 have been two people outside the administration who themselves 3 would have contacts within. 4 Mr. Gates said that Mr. Manafort said he still had connections, 5 and that another individual asked Mr. Manafort if he, that 6 individual, could tell 7 Manafort. 8 9 10 There is some evidence that he was still close to And you have his involvement in lobbing with respect to , and Exhibit 404 is this memo summarizing the group's plan that say, somewhat ambiguously, 11 12 But that outreach appears to did her bit and get her to call will find out if And it's not even crystal clear that he was supposed do that by calling her. 13 So, again, I want you to point to the specific 14 statement in a 302 or a grand jury statement that is the 15 precise question and answer you think I should denote as false. 16 And, you know, it does seem to be that there are indications 17 that he may have bragged that he still had sway or offered to 18 assist people or to lobby. 19 contacts that contradict a denial of a contact? 20 21 MR. ANDRES: Your Honor, I'm going to handle that one. 22 THE COURT: 23 MR. ANDRES: 24 drew the short straw. 25 But do we have direct evidence of All right. Given that you have issues with it, I So, the specific false statement that Mr. Manafort 123 1 made was during his October 16th interview, it's at Exhibit No. 2 4. 3 or indirect communications with the administration, and it's 4 the indirect part of that that we believe is a false statement. 5 So specifically what Mr. Manafort -- what's recorded in the 6 302, it says Manafort had no communication with anyone in the 7 administration while they were in the administration. 8 contest that. And the specific is that Mr. Manafort denies having direct 9 We don't Manafort then says, Manafort never asked anyone to 10 try to communicate a message to anyone in the administration. 11 Then it goes on to say Manafort spoke with 12 left the administration. 13 Manafort communicated with 14 the administration. 15 after he And notably, the last sentence, before joined I think that last sentence is particularly 16 significant because the instance in which Mr. Manafort 17 indirectly communicates with the administration is about 18 , when he specifically reaches out to Mr. , asks if 19 Mr. would like Mr. Manafort to reach out to the 20 administration and basically put a good word in for Mr. 21 who's later 22 . And then in the grand jury, specifically, on page 214, 23 Mr. Manafort is asked about that and he's asked about -- I'm 24 sorry, on 215 it says: 25 President Trump took office, were you in touch with anyone in How about once the President -- that 124 1 the administration that -- after that period. 2 says: 3 testimony, you learn that he has indirectly reached out to the 4 administration specifically about Mr. 5 testifies, on page 224, that he reached out to 6 who's a friend of both Mr. Manafort and Not directly. And Mr. Manafort Which, in effect, in the ensuing 7 . And Mr. Manafort , , and that through those individuals he 8 sent a message with respect to Mr. 9 Mr. Manafort then answers a question that as of this time, 10 . Tellingly, March of 2018, he still had the ability to send messages to 11 . 12 So, the government's contention is that when 13 Mr. Manafort said that he did not have any indirect 14 communications with the White House or with the administration, 15 that in fact he did. 16 THE COURT: So that's -Going back to Exhibit 4, you summarized 17 it to me and you said he denied direct or indirect 18 communications, but then I didn't hear you read me a sentence 19 where he said that. So what page? 20 MR. ANDRES: 21 THE COURT: 22 MR. ANDRES: 23 24 25 the 302. Sorry. What page are you in Exhibit 4? It's Government's Exhibit 10, which is When I said 4, I should have said 10. THE COURT: Okay. And what page of the 302 has the statement that is contradicted by the grand jury testimony? 125 1 MR. ANDRES: So page 2 of 8 in the one, two, three, 2 four, fifth paragraph that starts: 3 communications. 4 Manafort had no The first sentence says he had no communications with 5 anyone in the administration while they were in the 6 administration. 7 That would be the direct communications. 8 is the next sentence where he says: 9 anyone to try to communicate a message in the administration, 10 11 12 That's not the sentence we're contesting. What we're contesting Manafort never asked a/k/a, the indirect communication. With respect to the other issues, with respect to the lobbing, Mr. Manafort is also asked about that in the 13 grand jury. 14 He doesn't have a memory of reaching out to anyone in the 15 administration, but he says the question is whether he should 16 have or Mr. 17 the two of them were supposed to reach out to the 18 administration. 19 20 21 And the question is whether he should reached out. should have. The indication that one of The last one with respect to Mr. it's Exhibit 405, Mr. , I think writing in a text: , should I tell him that you say hi, or should I 22 acknowledge our relationship? That's not one that we're 23 relying on solely, obviously, but I think it provides important 24 context to the Court with respect to Mr. Manafort's state of 25 mind at the time. That is, he's looking for the opportunity to 126 1 reach out to 2 Mr. 3 4 . Even if he didn't prompt to say that, he's at saying, look, if you see the , tell him I said hi, or you should acknowledge our relationship, whether or not he asks or not. 5 So, again, that's not an exhibit that we're relying 6 on solely. 7 Mr. 8 affirmatively acknowledges that he was reaching out indirectly 9 to 10 I think the strongest evidence relates to and Mr. Manafort's grand jury testimony which when he said something contrary to that, to the government during the October interview. 11 THE COURT: All right. So you're not saying that he 12 lied to the grand jury, you're saying that his grand jury 13 testimony is inconsistent with what he told -- stated during 14 the interviews on October 16 and that's how you know that what 15 he said was false. 16 MR. ANDRES: Correct. 17 THE COURT: All right. And if materiality were 18 important, why is this of moment that I should be concerned 19 about it? 20 MR. ANDRES: Sure. Judge, throughout the interviews 21 with Mr. Manafort and some of the issues we've discussed today, 22 you see that he constantly either minimizes the information he 23 has about the administration or any contact with the 24 administration. 25 cooperation he's communicating with So there's an issue whether or not during his or 127 1 providing information about the questions or other things that 2 are happening in the special counsel investigation, whether 3 he's sharing that with other people. 4 example of Mr. Manafort -- 5 THE COURT: And this is another That hasn't been given to me as we're 6 troubled by this or he wasn't truthful about that, so I don't 7 see how to put this in the context of that because I don't know 8 about that. 9 MR. ANDRES: Well, so for example, in the No. 4, the 10 one that Mr. Manafort -- that Mr. Weissmann just talked about 11 with respect to the 12 changing his story so as not to implicate either 13 or someone in 14 this issue, again, Mr. Manafort is trying to distance himself 15 from the administration and saying he's not having contact with 16 the administration at a time when he's under at least one 17 indictment. 18 THE COURT: , you see Mr. Manafort . I think, with respect to But you're not suggesting right now that 19 there's more information in here about other efforts to 20 distance himself from the administration or to deny a 21 relationship or to deny reporting back to them? 22 23 MR. ANDRES: We're not relying on any other evidence of that issue. 24 THE COURT: All right. 25 MR. WESTLING: Mr. Westling? Well, I think, Your Honor, you know, 128 1 these are all situations where Mr. Manafort, at best, had 2 contact with someone who was contemplating contact with the 3 administration. 4 he had direct or indirect contacts. 5 that even in the case of Mr. 6 and he's saying I'll reach out to people and see if I can get 7 them to support you, that could be with any number of players. 8 9 I don't think there's any evidence here that I think that, you know, , that the government cites, I think the problem here is that Mr. Manafort volunteers Mr. 's name earlier on in the 302. There's no 10 reason to think that he sees any problem with what he was doing 11 there. 12 Mr. 13 And in fact, wouldn't have a reason to raise 's name in the first place, if he did. I think this is a situation where he honestly did not 14 believe that these were the kinds of contacts that the 15 government asked him about. 16 think we're all in agreement about that. 17 isn't evidence of him seeking to have indirect contact, you 18 know, in any of this. 19 to use his name or some reference to being talking about 20 somebody who's working on a lobbing project. 21 Mr. 22 says: 23 if someone were interested in seeking a job. 24 25 They were not direct, clearly. And there really It's the issue of Mr. 's case, the conversation with Mr. Can I help you in some way? I wanting Or in where he The way that anyone might But clearly, he hewed to the line of not having, you know, those contacts. And I think to say it's something more 129 1 than that, and perhaps more importantly, that there was some 2 effort to conceal or to disguise or lie about it, seems to me 3 just not substantiated by the record that's before the Court. 4 5 MR. ANDRES: Your Honor, page 225 -- 224 and 225 is the evidence of the grand -- 6 THE COURT: 7 MR. ANDRES: Of? -- of the grand jury, of Exhibit 4. 8 is the specific evidence of the indirect contact. 9 on line 6, this is recounting the text with Mr. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 says: It And starting , it 130 1 2 3 4 5 6 7 8 9 10 11 12 13 THE COURT: 14 15 Well, if he's calling these people, when they pick up the phone, they call the are they supposed to say I want 16 they supposed to say Paul wants 17 MR. ANDRES: Your Honor, I don't know the answer to that, but I would argue that that's not relevant. 19 relevance is that Mr. Manafort -THE COURT: Or are ? 18 20 ? The Well, one is conveying a message and the 21 other is getting people, other people to help this guy who he's 22 not going to help directly. 23 guy, but that's different than sending a message, isn't it? 24 25 MR. ANDRES: So he's indirectly helping the Well, if the message is a good guy, then it's sending that message, whether it comes is 131 1 from Mr. Manafort or it comes -- the government is not alleging 2 that the message is Paul Manafort says X, the message is we 3 support or there is support for 4 message that is indirectly sent from Mr. Manafort through a 5 third party to the 6 THE COURT: All right. 7 MR. WESTLING: . And that's the Mr. Westling, anything? I guess, two things, Your Honor. One 8 is that, obviously, when these questions -- Your Honor, I 9 think -- the first is that none of us, in terms of working with 10 Mr. Manafort through this process, would have thought that that 11 would have amounted to a direct or indirect contact. 12 so in terms of giving advice and working through this matter, I 13 don't think we thought about it as how many layers do you have 14 to get down before you might run afoul of the I didn't have 15 direct or indirect contact. 16 I think the other point with Mr. I mean, that's 17 particularly well made is that obviously, given when this is 18 happening, the idea that Mr. Manafort was going to be helpful 19 to someone was only going to be because he asked others to 20 potentially support them. 21 indictment at this point and, you know, the idea that he was 22 going to pass a message and it would have some value, frankly, 23 no offense to Mr. Manafort, but I can't see that. 24 that's why we went to other business leaders and said you 25 should consider this and it was up to them to decide what to do And, you know, he was already under I think 132 1 or whether to do. 2 evidence here that they ever contacted anyone in the 3 administration. 4 there's just no basis to make that finding. 5 And there's not even really any direct So I think the idea it's an indirect contact, THE COURT: All right. That covers all the subject 6 matter areas. The defendant, though, in his pleading asks me 7 to consider his health issues exacerbated by the conditions of 8 confinement, and particularly his solitary confinement as one 9 reason why I should conclude that any inaccuracies are 10 unintentional. 11 those statements? 12 intent? 13 And I want to know, do you want to elaborate on What about his confinement bears on his MR. WESTLING: Well, I think, Your Honor, that the 14 situation, obviously, has been physically and mentally 15 difficult, as it always is. 16 Mr. Manafort is going through is not shared by anyone who goes 17 through a similar kind of confinement. 18 probably doing it at an age that most people don't, and it's 19 been over a meaningful period of time. 20 there is a natural degree to which one sees an impact on health 21 and mental abilities, that people tend to be sharper when 22 they're not under those conditions. 23 I'm not suggesting what I will note that he's And with that, I think And I think the reality here is it's been shown that 24 those kinds of conditions have an affect on memory. So I 25 think -- I'm not saying that that explains the situation, I 133 1 think it's just highly relevant in understanding why there were 2 miscues at various points that might not have happened, 3 particularly given a greater opportunity to sit and prepare and 4 to spend time with counsel, to be ready for sessions. 5 just wasn't really possible under the circumstances. 6 That We've had tremendous access to Mr. Manafort, I'm not 7 suggesting otherwise. But it just becomes challenging with his 8 scheduling and everything else, to finish a long day of 9 interviews and then to rush over to the jail at night to be 10 ready for the next day, even if you know what the subject 11 matter is, and often we had only, kind of, headlines. 12 So I guess what we want the Court to understand -- 13 THE COURT: 14 15 Were you able to -- did you have access to him, or were there times when he was not accessible to you? MR. WESTLING: Generally we had access to him twice a 16 day; in the afternoon, which of course is when we were together 17 with the government, and then in the evening. 18 have had good access, but there are times when there are 19 unscheduled lock downs and all kinds of other things that get 20 in the way of that access. 21 situations that makes what is always a difficult and stressful 22 undertaking for your client, in terms of those cooperation 23 sessions, that much more difficult. 24 25 And we generally But it is just one of those And I think we've noticed -- without, again, looking to hurt Mr. Manafort's feelings in any way -- the cost of him 134 1 being incarcerated has been one that has made, you know, him 2 less acute in his ability to sort of see and perceive. 3 while he spent a lot of time and he's put in a lot of effort, 4 and we've appreciated his help, it still is just a factor that 5 we think is relevant as the Court looks at the whole construct 6 of what's going on here. 7 THE COURT: And Well, I take your point with respect to 8 the emotional toll this would take on anyone and the physically 9 difference aspect of his existence from what it had been 10 before. 11 consider his physical health in some particular way, and you 12 were arguing that his physical health was exacerbated by his 13 conditions of confinement. 14 court appearance when he appeared in a wheelchair. 15 that happen -- was he taken to any of these debriefs in a 16 wheelchair? 17 18 But I got the impression you were asking me to MR. WESTLING: And certainly I'm aware of the But, did He was taken to the grand jury in a wheelchair. 19 THE COURT: Okay. 20 MR. WESTLING: On the 26th and the 2nd? I know on the 26th. The 2nd as well, 21 Your Honor. 22 to talking about had he not been in a wheelchair, he would be 23 sitting somewhere different. 24 25 And there's actually a reference in the transcript THE COURT: So -- What is it about his conditions of confinement that you want me to understand has something to do 135 1 with that? 2 MR. WESTLING: Well, he basically has never in his 3 life before had a problem with the swelling in his leg and foot 4 that he has now related to gout. 5 that has to do with diet and a lack of exercise. 6 something that has only been onset since he's been 7 incarcerated. 8 emotionally. 9 know, there's been some depression and other things that you The general indications are And it's Obviously, it's also been, to the point we made, And we've shared this in the pleadings. You 10 would expect that have been treated, as is the physical 11 situation. 12 created some challenges to him as he tries to stay focused and, 13 you know, live up to his obligations under the plea agreement. 14 But it's obviously not ideal and it has had some -- THE COURT: And this isn't to suggest that the 15 situation he finds himself in wouldn't make someone be 16 depressed, but is there any prior history of depression before 17 this case arose? 18 MR. WESTLING: 19 THE COURT: 20 (Pause.) 21 MR. WESTLING: Let me confer with Mr. -- All right. Your Honor, I think there has not been 22 significant depression in the past. I do want to correct one 23 thing I said: 24 And that is there has been some history with the gout, but it's 25 been very minor, whereas now it's become a significant issue. My fellow counsel and client have been helpful. 136 1 2 I didn't want to not clarify that. THE COURT: All right. Did anyone from the office of 3 special counsel have concerns during any meetings that his 4 health or his ability to focus or his emotional state were 5 affecting his ability to be responsive or that they were 6 brought to your attention by the defense? 7 MR. WEISSMANN: They were -- we had no such concerns 8 and they were not brought to our attention. To the contrary, I 9 would call the Court's attention to Exhibit 4, the grand jury 10 transcript. 11 of questions you would expect were asked about whether the 12 defendant had any medical concern or issue that would affect 13 his ability to answer the questions and understand what was 14 going on, and he denied that. 15 went over that again, he kind of joked about it, and you'll see 16 that in the transcript. 17 And that is, on October 26, 2018, the normal types In fact, after lunch, when we The other thing that's referenced there that may be 18 of note to the Court is that with respect to his medical 19 condition, it's noted in the transcript that that arose and the 20 condition was only in the last of the proffer sessions. 21 other words, the transcript of the grand jury is on October 22 26th and the last of the proffer sessions, debriefings was 23 October 16th. 24 stayed the same, but in terms of the condition with respect to 25 the inflammation in his leg didn't appear until October 16th. So, in So the -- obviously, the prison conditions 137 1 THE COURT: 2 that I need to cover right now? 3 Okay. MR. WEISSMANN: All right. Is there anything else Judge, the only issue, I think I have 4 mentioned before, and so you should cut me off if you feel like 5 this point has been -- or, at least our position has been made 6 clear, is that in terms of the way that the government looks at 7 this, the issue of the -- whether the defendant breached or 8 didn't breach the agreement, from our perspective, there's a 9 legal standard, which is it's a good faith determination and 10 that that is beyond us because that is one it was conceded. 11 And so that the issue that we see here is not whether 12 he in fact breached, that's something that there is no platonic 13 ideal of that, it's something that's in fact happened because 14 the determination has been made and there's been no challenge 15 to that. 16 whether there have been misstatements, intentional 17 misstatements that would be relevant to the Court at 18 sentencing. 19 The issue now is one of a sentencing issue, of And we bear the burden of proving that. THE COURT: And I think we all agreed last time that 20 trying to differentiate that question from whether he in fact 21 breached was a distinction, you know, too impossible to even 22 draw, that they were essentially the same inquiry. 23 understand that that's not what I'm being asked to find. 24 All right. 25 MR. WESTLING: But I Anything further from the defense? No, Your Honor. 138 1 THE COURT: All right. We now have a little bit of a 2 two-step process in terms of producing the transcript, that is 3 going to be longer than I initially anticipated. 4 guess first question would be from when the court reporter 5 expects that it could be done, so that we can set a schedule 6 for when you could agree to how much of it we can make public. 7 And so I I think a large portion of what we discussed could be 8 public. I think there are certain issues where you probably 9 only need to redact out names and turn them back into entities. 10 And then there are may be one or two issues where we're really 11 talking about something that was completely redacted at every 12 point prior to this and will continue to be. 13 you'll both be on the same page about that with respect to what 14 of the investigation is not yet public. 15 Special Counsel has the stronger point of view about that. 16 And, hopefully, I think the Office of But I'm going to ask you to see if you can agree on 17 what a redacted version would look like before I docket 18 anything, with the understanding that ordinarily this room 19 would be completely full of people reporting on what happened. 20 And they know that we're meeting and they know that we promised 21 them a transcript, so when -- 22 All right. I will order that tomorrow morning when 23 the sealed transcript is ready, that the parties may have it. 24 And then assuming you get it at some point tomorrow morning, 25 how long do you think it would take to confer and let me know 139 1 if you have an agreed version? 2 (Off-the-record discussion between counsel.) 3 MR. WEISSMANN: 4 So I think end of the day on Wednesday. 5 THE COURT: Okay. If you're in agreement, then I 6 think you can file a notice and attach it with the proposed 7 redactions, but maybe do it in a way where it's highlighted so 8 I can see what's redacted or bracketed and then I can order 9 that it be made public with those redactions. If you are not 10 in agreement, then you need to bracket it or highlight it in 11 such a way that I know who's proposing one and what's in 12 dispute. 13 I think we've had to -- the court reporter has the 14 authority to send counsel for both sides a PDF to accelerate 15 this exercise, though -- I mean, we've done this before, I 16 guess not with transcripts. 17 if you didn't get hers, is that correct? 18 information now that we can figure out how to do this. 19 20 MR. DOWNING: So either way, you would make one We have enough The Office of Special Counsel can. We'll rely on them. 21 THE COURT: Okay. That's fine I'll ask the Office of 22 Special Counsel to transmit to me -- and it's still under seal 23 at this point -- what you think the redacted version should 24 look like. 25 record. And then I will order it to be placed on the public And that process can continue even before we have a 140 1 hearing for me to rule, at which point we'll do the same thing. 2 I think I would rather rule from the bench than do a lengthy 3 written opinion, which will take much longer. 4 do the same thing about issuing an unsealed transcript as soon 5 as possible. 6 And then we can So, we should probably put on the record -- determine 7 right now when a hearing for me to rule on this would be. 8 I know I've given the parties some extra time to get 9 information to me. 10 11 And And I appreciate everybody's patience with what we've had to go through today. I believe it was very helpful, very useful and very 12 important for you to have been here, Mr. Manafort. 13 we've had hearings where counsel sought to minimize the burden 14 on you and not have you be here, but this is about you, it's 15 not about them. 16 you available to ask questions to. 17 And I think it's very important that they have All right. What about on the 12th or 13th? 18 say 9:30 a.m. on the 13th for -- 19 MR. ANDRES: 20 THE COURT: 13th is the Wednesday. think I can do it Tuesday. 22 14th and 15th, if I don't have to. 23 MR. WEISSMANN: 24 THE COURT: preference? Can we Tuesday? 21 25 I know that If not, then I I don't want to go as far as the Any of those days we will make work. All right. Does the defense have a 141 1 THE COURTROOM DEPUTY: 2 THE COURT: 3 11 o'clock on the 13th? I don't think it will take more than an hour and a half, certainly; hopefully less. 4 MR. WESTLING: 5 THE COURT: So the 13th works. 13th at 9:30 a.m. then we will reconvene 6 in a sealed proceeding to make my findings. And I think we can 7 do a public minute order that says they can file supplemental 8 submissions by -- that has all these dates; the date that they 9 are supposed to get back to me with the proposed redactions, 10 the supplemental submissions, and let's just say an additional 11 hearing on that date that will also be under seal, so that 12 people at least know that we're working on it. 13 14 THE COURTROOM DEPUTY: check? THE COURT: 16 THE COURTROOM DEPUTY: 20 We did, I believe, didn't we? THE COURT: Oh, that's right. Did you get to do that? MR. WESTLING: I wanted to ask which dates we're 21 talking about. 22 want to make sure I'm oriented. 23 THE COURT: 24 MR. WESTLING: 25 They couldn't see their calendars. 18 19 Do you want to have them You're moving the sentencing to March. 15 17 Okay. would be good. We've looked, so I'm prepared to answer. So I How about the 12th or 13th of March? If we could do the 13th of March, that 142 1 THE COURT: March 13th sentencing. All right. Let's make that 2 also 9:30 in the morning. The date of the 3 submission remains the same. 4 have time between the receipt of the submission and the 5 hearing. The point of this exercise was to All right. 6 MR. WESTLING: 7 THE COURT: Your Honor, that's the 22nd? Yes. Okay. I don't think there's 8 anything else we need to do right now. 9 the door will not be locked when our 4 o'clock matter takes 10 And that's good that place. 11 Anything further from anybody else? 12 All right. 13 14 15 16 17 18 19 20 21 22 23 24 25 next time. You all can stand up. Thank you. * * * And we'll see you 143 1 2 CERTIFICATE OF OFFICIAL COURT REPORTER 3 4 5 I, JANICE DICKMAN, do hereby certify that the above 6 and foregoing constitutes a true and accurate transcript of my 7 stenograph notes and is a full, true and complete transcript of 8 the proceedings to the best of my ability. 9 Dated this 5th day of February 2019. 10 11 12 /s/________________________ 13 Janice E. Dickman, CRR, RMR Official Court Reporter Room 6523 333 Constitution Avenue NW Washington, D.C. 20001 14 15 16 17 18 19 20 21 22 23 24 25