Rick Gates, former associate and protege of Paul Manafort, is testifying in the latter’s trial. Gates has already pleaded guilty to felony charges and is cooperating with the government. Under questioning by the prosecution he admitted committing multiple financial crimes with Manafort, as well as stealing from Manafort himself. On cross examination the defense hammered Gates, forcing him to further admit to his own many frauds and deceptions, including an extramarital affair.
Gates is a liar and a fraud. He’s testifying to help himself out in his own case. He carries a lot of baggage to that witness stand.
And he’s the government’s star witness.
Although that may seem bizarre, it’s a common occurrence in complex criminal cases. Often the best way — and sometimes the only way — for the government to learn what happened is to persuade someone who was on the inside to plead guilty and cooperate. Participants in an illegal enterprise may provide the crucial details necessary to convict others involved — typically those a few rungs higher up the criminal ladder. But such witnesses are subject to withering attacks on their own credibility and present real challenges for the government.
Prosecutors deal with those challenges in a number of ways. The first is to maintain a healthy skepticism toward — and distance from — the cooperator throughout the investigation and trial preparation. It’s dangerous to “fall in love” with your cooperator and start accepting what they say uncritically. They will be tempted to say what they think the prosecutor wants to hear, regardless of the truth. Good prosecutors are alert to that risk and know that a witness who has already admitted to lying to others will readily lie to them if he thinks he or she can get away with it.
At trial, prosecutors do not attempt to sugarcoat the cooperator’s misdeeds. At the beginning of Gates’s testimony, the government spent a good deal of time having him discuss his own crimes and the terms of his deal with the government. Lawyers call this “removing the sting”: bringing out the damaging information about your witness yourself. Then when the defense gets into it on cross examination, the jury just feels like they’ve heard this all before. This also shows the jurors that the government has no illusions about the witness and is not trying to conceal anything.
Another important factor is the witness’s demeanor on the stand. The cooperator cannot appear to be minimizing his own misconduct or evading responsibility. By all accounts, Gates has been a calm and articulate witness who is being pretty forthcoming about his own actions, although the defense has managed to rattle him a bit on cross.
But the real key to such a witness is to corroborate everything they say – up, down and sideways. Prosecutors want to be able to back up every crucial piece of testimony with some document, testimony from another witness, or some other piece of evidence. The defense is going to argue that Gates will say whatever prosecutors want in order to save his own skin. Prosecutors want the jury to know they don’t have to rely solely on the cooperator’s word for anything because everything he said has been corroborated by other reliable evidence. In a fraud case like this, much of that corroboration is contained in bank records and other documents that don’t lie — which is why it’s so important for the defense to attack Gates’s credibility.
Ultimately, prosecutors want to be able to stand before the jury in closing argument and say something like: “Ladies and gentlemen — Mr. Gates is a crook and a liar. He told you that himself. Maybe you didn’t like him very much. That’s fine. But the government didn’t choose Mr. Gates as a witness: Mr. Manafort did. It was Mr. Manafort who chose Mr. Gates as his co-conspirator, to engage in all the crimes you’ve heard about during this trial. That’s why Mr. Gates was able to tell you about them in such great detail. So the question now is not whether you like Mr. Gates or approve of his conduct — none of us do — but whether what he told you on that witness stand was the truth. And when you consider how everything he said is backed up by all of the other evidence in this case, we submit you will conclude that what Mr. Gates told you is exactly the way it all happened.”
Cooperating witnesses can be unsavory, but they are often crucial — and that’s certainly true of Gates. If Manafort is convicted, Gates’s testimony will have played a key role. And if that happens, prosecutors are no doubt hoping that Manafort, President Trump’s former campaign chairman, will consider playing the role of cooperator himself in special counsel Robert S. Mueller III’s broader investigation.