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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. One of President

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Speaker 1: Donald Trump's early supporters in Congress, New York Republican Congressman

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Speaker 1: Christopher Collins and his son have been indicted for insider

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Speaker 1: trading and lying to the FBI. At a press press

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Speaker 1: conference today, the Manhattan u S Attorney Jeffrey Burman said

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Speaker 1: that Collins is accused of tipping off his son to

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Speaker 1: the results of a failed drug test at Innate Immuno

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Speaker 1: Therapeutics so that he could sell shares. Burman said that

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Speaker 1: as a board member of the company, Collins had a

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Speaker 1: duty to keep the information secret until it was released

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Speaker 1: to the public, but he didn't keep it secret. Instead,

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Speaker 1: as alleged, he decided to commit a crime. He placed

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Speaker 1: his family and friends above the public good. Joining me

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Speaker 1: is former prosecutor Peter Henning, a professor at Wayne State

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Speaker 1: University Law School. So Peter, this is believed to be

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Speaker 1: the first insider trading case against a sitting congressman. Other

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Speaker 1: than that, is this a fairly typical insider trading case.

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Speaker 1: I think it is June because this is a standard

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Speaker 1: tipping type case. I mean we saw this back with

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Speaker 1: for example, Rajat Gupta, who was on the board of

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Speaker 1: directors of Goldman Sachs tipping off Raj Raj Rottenham. This

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Speaker 1: is a corporate insider getting information and rather than selling himself,

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Speaker 1: tips off his son, who then tipped others and so.

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Speaker 1: But for the notoriety of it being a sitting congressman,

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Speaker 1: it really is a fairly down the middle, straightforward case.

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Speaker 1: The detail here is remarkable. I think there's more detail

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Speaker 1: than there was in the group to case. You have

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Speaker 1: the exact times of the calls. Collins got his six

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Speaker 1: attempts to call his son, and then the chain of

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Speaker 1: tipping that allegedly went on with calls his fiance, his

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Speaker 1: fiance's mother's fiance's father, and a friend. I mean, it's

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Speaker 1: it's hard to rebut that isn't it. Uh, certainly it

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Speaker 1: will be a challenge. Um. But with the prosecutors have here,

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Speaker 1: he is very much of a circumstantial case. I don't

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Speaker 1: think we have a recording of the key phone call

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Speaker 1: that lasted for about six minutes. But you have the

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Speaker 1: news getting to Congressman Collins, Congressman Collins calling his son,

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Speaker 1: and the next day his son and others sell out

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Speaker 1: their position that that's a classic circumstantial insider trading tipping case.

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Speaker 1: So in that regard um it's interesting that they have

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Speaker 1: all these details, but that's how they had to put

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Speaker 1: their case together. You've got to have the contact between

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Speaker 1: the trader in the source and it was traced here

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Speaker 1: to Congressman Collins, and that's where they of going forward

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Speaker 1: with it. Collins attorneys, of course they he'll amount of

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Speaker 1: vigorous defense, but they say it's notable that even the

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Speaker 1: government does not allege that Collins traded a single share

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Speaker 1: of Adate Therapeutic stock. Is that really important? Ultimately, no,

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Speaker 1: not for insider trading liability. If you are the source

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Speaker 1: of the information and you give it for the purpose

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Speaker 1: or knowing that the recipient of the information that Tippy

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Speaker 1: is going to trade on it, then you are just

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Speaker 1: as guilty as the person who traded the shares, even

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Speaker 1: though you never traded a stock at all. And so

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Speaker 1: in this case, Congressman Collins owned UM. I think it

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Speaker 1: was more than fift of the company. He didn't trade

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Speaker 1: any of his shares, but that doesn't absolve him of

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Speaker 1: any blame if he was the source. And we have

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Speaker 1: seen this in other contexts uh for example a case

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Speaker 1: from a couple of years ago involving Sean Stewart who

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Speaker 1: his father got information from him and Stewart was convicted

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Speaker 1: for being a tipper, although he was recently released from prison,

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Speaker 1: So there's nothing new here about the tipper not trading.

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Speaker 1: Now this is he's up for reelection, Collins, and we've

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Speaker 1: already seen that two analysts are moving this the you know,

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Speaker 1: this race from a safe race to a not so

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Speaker 1: safe race. Is there any problem with the releasing the

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Speaker 1: results of this indictment so close to an election? Well,

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Speaker 1: typically the Justice Department won't release charges within sixty days

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Speaker 1: of an election. We're a little bit more out from that.

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Speaker 1: But I think what the United States Attrainey's office here

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Speaker 1: was looking at was they had wrapped everything up, They

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Speaker 1: had all the information that they needed and will it

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Speaker 1: have an impact on the election? Being indicted on federal

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Speaker 1: charges is not a positi that thing, so it could

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Speaker 1: well have an impact. But in fairness to the U. S.

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Speaker 1: Attorney's Office, this is a Republican appointee at the moment,

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Speaker 1: who is charging a Republican congressman, So it wouldn't appear

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Speaker 1: to be something that he is politically motivated. I think

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Speaker 1: more just they were ready to go with their insider

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Speaker 1: trading charges and the time had come to bring them,

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Speaker 1: especially with the Congressional ethics investigation going on, that the U. S.

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Speaker 1: Attorney's Office decided that they in effect wanted to take

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Speaker 1: charge of this case. Now there are also charges of

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Speaker 1: lying to the FBI, and um, we've seen those charges

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Speaker 1: caused convictions by themselves. Those are those easier to prove? Well,

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Speaker 1: they are easier to prove in the sense that you

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Speaker 1: just bring the FBI agent up onto the witness stands.

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Speaker 1: So it's not a circumstantial case. It is more a

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Speaker 1: case of direct evidence where the agent testifies this is

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Speaker 1: what I was told by whoever the person is, and

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Speaker 1: then the government brings in documentary evidence to show that

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Speaker 1: that was not in fact the case. And here in

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Speaker 1: this type of the case, we're talking about trading records,

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Speaker 1: phone records, things like that. The type of evidence that

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Speaker 1: is not really subject across examination. So what the government

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Speaker 1: will do is it will rely on the agent or

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Speaker 1: the agents, if it was more than one, to come

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Speaker 1: in and say, this is what we were told, and

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Speaker 1: we're going to show you that it's a lie. And

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Speaker 1: of course for this kind of a charge, you have

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Speaker 1: to show it wasn't just the ambiguous or it wasn't

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Speaker 1: the complete truth. You have to show that it was

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Speaker 1: an out and out lie. And that's where the documentary

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Speaker 1: evidence will be the key for showing that in fact,

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Speaker 1: the agent was lied to. Alright, I think they had

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Speaker 1: some they have some of the evidence READIORRATD because the

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Speaker 1: the U S Attorney had huge boards with with different

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Speaker 1: uh you know, boxes and the chain of insider trading.

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Speaker 1: Looks like they're ready for trial. Thanks so much, Peter.

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Speaker 1: That's Peter Hanney, professor at Wayne State University Law School.

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Speaker 1: Rick Gates, the star witness in the trial of Paul Manafort,

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Speaker 1: admitted that he stole light and cheated, but asked the

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Speaker 1: jury to believe his testimony anyway. The defense attack on

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Speaker 1: Gates and cross examination was brutal and often personal. Joining

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Speaker 1: me as former federal prosecutor Robert Mint's a partner mcarter

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Speaker 1: in English. So Bob Gates testifies that he stole on

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Speaker 1: behalf of Manafort and from Manafort, and he falsified letters

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Speaker 1: and invoices, made false statements in a deposition. Those are

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Speaker 1: crimes that relate to credibility, a little different from someone

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Speaker 1: admitting to be a robber or trading on inside information.

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Speaker 1: Can the prosecution get all six jurors to believe him, Well,

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Speaker 1: that's certainly what they're hoping. There is no question that

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Speaker 1: this confrontation between Paul Maniford and his former right hand man,

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Speaker 1: a relationship that spans two decades, is the climax of

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Speaker 1: this trial, and ultimately, for for the prosecution to win

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Speaker 1: this case, they have to convince jurs that Rick Gates

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Speaker 1: is telling the truth now, even though he admitted to

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Speaker 1: lying repeatedly both to Paul Manafort and to prosecuters in

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Speaker 1: the past. So the defense attorney was relentless in his

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Speaker 1: cross He moved quickly from topic to topic, and at

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Speaker 1: one point Gates seemed confused and he contradicted himself one time.

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Speaker 1: He was also reluctant to use the word embezzlement. How

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Speaker 1: much damage did the defense do with that and what

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Speaker 1: would prosecutors do to repair it. Well, there's no question

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Speaker 1: that the defense has a lot to work with because

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Speaker 1: one of the standard tactics that defense lawyers will use

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Speaker 1: his supposed to jurors the question, if this witness has

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Speaker 1: lied in the past, how do you know he's not

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Speaker 1: lying to you now? And certainly Rick Gates has an

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Speaker 1: awful lot to gain by testifying in a way that

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Speaker 1: helps himself and hurts Paul Manifort. So the defense case

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Speaker 1: will essentially hange on the question of can you believe

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Speaker 1: Rick Gates somebody who has admitted to lying repeatedly in

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Speaker 1: the past. The way prosecutors deal with that is to

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Speaker 1: say to jurors that we're not asking you to rely

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Speaker 1: solely on what Rick Gates has said. We're gonna show

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Speaker 1: you corroborating evidence. We're gonna show you documents, We're gonna

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Speaker 1: show you emails, We're gonna show you other testimony from

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Speaker 1: the accountants, for example, all of which falls in line

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Speaker 1: completely with what Rick Gates said to you. But at

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Speaker 1: the end of the day, prosecutors are still essentially vouching

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Speaker 1: for his credibility, and they're basically asking jurors to accept

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Speaker 1: the fact that although he has lied before, he is

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Speaker 1: now telling the truth. So the prosecutor has brought out

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Speaker 1: this litany of his past crimes on direct But I'm

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Speaker 1: curious about why they didn't bring up the affair that

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Speaker 1: Gates admits too. They have to have known that defense

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Speaker 1: would bring that out because it damages this area of

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Speaker 1: his life, his relationship with his family. Well, yeah, that's

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Speaker 1: an interesting question, And it seems that there were some

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Speaker 1: back and forth between prosecutors and the defense where the

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Speaker 1: prosecution had argued that the fact that he had an

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Speaker 1: affair in and of itself does not go to his credibility,

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Speaker 1: and there's some law in the Fourth Circuit that says

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Speaker 1: that the fact that someone has an affair doesn't necessarily

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Speaker 1: go to their truthfulness. The defense had agreed that they

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Speaker 1: would not bring it out. But what actually happened at

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Speaker 1: the trials as soon as the defense went after Rick

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Speaker 1: Gates for having alleged secret life, Gates was the one

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Speaker 1: that blurted out the fact that he had had an affair,

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Speaker 1: and that's really how that came out. But the defense

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Speaker 1: was going to argue that they were bringing at this

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Speaker 1: issue out not simply to show that he was having

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Speaker 1: an affair, but that he was using some of the

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Speaker 1: money that he stole from Manafort to support the relationship.

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Speaker 1: That's interesting that the judge has clashed with prosecutors throughout

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Speaker 1: the trial, and he's also shown himself to be rather quirky.

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Speaker 1: To put it mildly, but something he said yesterday, we're

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Speaker 1: shocking when Gates said that that Manafort was very good

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Speaker 1: at knowing where the money was and where it was going.

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Speaker 1: The judge said, he didn't know about the money you

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Speaker 1: were stealing, so he didn't do it that closely. Isn't

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Speaker 1: that the judge injecting his own opinion, which is negative

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Speaker 1: about the credibility of the state star witness. Well, that's

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Speaker 1: something that a judge would typically say during a trial

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Speaker 1: in front of a jury. That's something you would normally

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Speaker 1: expect the defense to point out to jurors in their

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Speaker 1: closing statements or through their cross examination of Mr. Gates.

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Speaker 1: But I don't think it necessarily does much damage because

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Speaker 1: it was obvious to jurors that while on the one hand,

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Speaker 1: Gates was saying that Manafort was watching every penny and

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Speaker 1: was aware of every uh the flow of money and

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Speaker 1: exactly what was going on, with all of his finances,

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Speaker 1: he had at the same time to admit that he

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Speaker 1: was embezzling money from mantafor it by inflating his own invoices. So,

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Speaker 1: in a sense, uh that that issue had already been

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Speaker 1: laid out there and it was something that the defense

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Speaker 1: was going to jump on at closing arguments or through

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Speaker 1: cross examination, even if the judge hadn't mentioned it. Is

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Speaker 1: there anything an attorney can do during a trial if

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Speaker 1: he or she feels that a judge is being unfair

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Speaker 1: or you know, saying things in front of the jury.

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Speaker 1: Can you go to the administrative judge or do you

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Speaker 1: just have to wait to see what happens and try

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Speaker 1: and appeal. All there's two things you can do. I mean,

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Speaker 1: first of all, you can put an objection on the

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Speaker 1: record to preserve that on appeal if you believe the

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Speaker 1: judge has overstepped his or her bounds and in any

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Speaker 1: way prejudiced your case. And there's also an opportunity during

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Speaker 1: the many sidebars where where lawyers approach the bank and

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Speaker 1: have a private conversation with the judge out of your

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Speaker 1: shut of the jury, to express your dissatisfaction with what

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Speaker 1: is being said. And a judge may reconsider their position,

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Speaker 1: or may at some point at the end of the

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Speaker 1: trial given instruction that attempts to cure what may have

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Speaker 1: been an inadvertent statement. So we'll see whether this issue

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Speaker 1: comes up again. But generally those are the ways that

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Speaker 1: lawyers have an opportunity to try to deal with the

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Speaker 1: situation where they think a judge may not be entirely fair. Um,

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Speaker 1: it seems unlikely, but I'm going to ask the question anyway,

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Speaker 1: is there any chance that Manafort might testify? Um, It's well,

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Speaker 1: it's always a possibility, and that decision will ultimately be

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Speaker 1: made by Mr Manafort himself. But you can almost guarantee

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Speaker 1: that his lawyers are going to strongly urge him not

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Speaker 1: to take the stand. He has very little to gain

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Speaker 1: by testifying, an awful lot to lose. Once the defendant

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Speaker 1: takes the stand, it really gives prosecutors a chance to

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Speaker 1: retry their entire case through the cross examination of the defendant.

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Speaker 1: And I don't think in this case the lawyers were

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Speaker 1: going to allow him to do that, And I think

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Speaker 1: it's highly unlikely that he'll ultimately testify. Um, how we

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Speaker 1: know what what the defense is trying to do here?

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Speaker 1: With Gates, But what else do you see they could

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Speaker 1: do in their defense to humanize Manifort or you know what,

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Speaker 1: what could they do well? I think ultimately this is

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Speaker 1: case is going to be one that turns, as most

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Speaker 1: criminal cases, due on a question of reasonable doubt. Remember

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Speaker 1: here the defense does not have to prove that they

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Speaker 1: are innocent. They simply have to prove that the government

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Speaker 1: has not proven its case beyond a reasonable doubt. And

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Speaker 1: if they can make Rick Gates uh so unpalatable to

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Speaker 1: this jury, where the jurors believe that the government cut

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Speaker 1: a deal with somebody who committed so many crimes and

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Speaker 1: lied so many times that they are just not going

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Speaker 1: to sanction that. That's probably their best hope for getting

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Speaker 1: at least one juror to refuse to vote for a conviction,

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Speaker 1: and even a hung jury in this case would be

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Speaker 1: a victory for the defense. It certainly would be one

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Speaker 1: out of six. Thanks so much, Bob, that's Robert Man's

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Speaker 1: a partner McCarter in English. Thanks for listening to the

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Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

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Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com.

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Speaker 1: Slash podcast I'm June Brasso. This is Bloomberg ye