The trial of former Trump campaign director Paul Manafort is scheduled to begin today in Virginia before Judge T.S. Ellis. Manafort is facing myriad charges, including tax fraud, bank fraud, conspiracy and money laundering.
Manafort, 69, is facing 32 federal criminal charges in Virginia on top of 12 charges in Washington, DC. He has been in prison since June 15, when Judge Amy Jackson, the federal judge in his DC case, revoked his bail on evidence of attempted witness tampering. Judge Ellis, who was appointed by President Ronald Reagan, described the gravity of Manafort’s situation in a March court order assessing the defendant’s flight risk: “Given the nature of the charges against the defendant and the apparent weight of the evidence against him, defendant faces the very real possibility of spending the rest of his life in prison.”
Both prosecutions against Manafort were brought by Special Counsel Robert Mueller, who is tasked with investigating Russian interference in the 2016 election, any links and/or coordination between the Russian government and any individuals associated with the Trump campaign, and any matters that arise directly from the investigation. Manafort has had dealings with Donald Trump since the 1980s, but Manafort’s most recent connection to Trump was through his work on the presidential campaign, which he joined in March of 2016. In May 2016, the campaign promoted Manafort to campaign chairman and chief strategist. He later became de facto campaign manager when Corey Lewandowksi was fired in June 2016.
Manafort then resigned in August of 2016 after coming under increasing scrutiny for his previous work lobbying on behalf of Pro-Russian Ukrainian politicians as well as a Russian oligarch. On Monday, federal prosecutors revealed that Manafort made as much as $60 million as a consultant for the Party of Regions, a Russian-backed political party in Ukraine. The Special Counsel’s Office focused early attention on Manafort, bringing the first set of charges against him in October of 2017.
To help us better understand what to expect and what to watch for during the trial, we turned to a group of former federal prosecutors and white collar criminal defense attorneys for their expertise. At the outset of the trial, here are our questions, with answers from Barbara McQuade, Alex Whiting and Andy Wright.
Why is Manafort facing two different trials?
Manafort is currently facing two federal trials: one in the Eastern District of Virginia, which is beginning today, and another in the District of Columbia, scheduled to begin on September 17. When the grand jury in Virginia returned a new indictment against Manafort in February, he was already facing charges in D.C. federal court.
Two, nearly concurrent trials in separate venues is not common. “Prosecutors sought to bring all of the charges in one venue, but Manafort declined to waive venue, which is his legal right,” McQuade explained.
The Sixth Amendment provides a constitutional right of trial venue in the district and state in which the alleged offense occurred. However, federal law allows for the transfer of a trial from one district to another under a variety of circumstances. This provision allows concurrent prosecutions in different venues to be consolidated. However, transfer to a different district – say, from Virginia to DC – requires that the defendant waive venue. The Special Counsel’s Office proposed a transfer, but Manafort has declined to consent.
It’s not exactly clear why Manafort refused or whether that decision was a good idea. Some believe that it reflects Manafort’s preference for a Virginia rather than DC jury pool. (The Virginia counties from which the jury would be drawn mostly favored Clinton in 2016, but they had many more Trump voters than in DC, where Clinton took 93 percent of the vote. Those Virginia counties are also whiter than DC, and polling data suggests that Mueller’s investigation has a significantly higher disapproval rating among white people as compared to black and other nonwhite respondents.) Others have questioned whether Manafort hopes that the Virginia trial, simply by unfolding, could increase frustration at the White House and lead to further pressure on Deputy Attorney General Rod Rosenstein and Mueller to offer him a more favorable deal if he cooperates.
Whatever the strategy at play, two trials cost the Justice Department a great deal more time and money. “It seems that he and his lawyers are simply hoping to make the work of the prosecutors more difficult,” Whiting said, “but he has also given the prosecutors two chances to convict him.”
Putting aside politics, how unusual is this case?
Not very. Some were surprised that Manafort’s initial indictment in the District of Columbia included two counts relating to alleged violation of the Foreign Agents Registration Act, which the Justice Department usually elects to enforce through administrative or civil penalties rather than criminal prosecution. (For more on FARA, read Steve Vladeck’s primer here.) The addition of witness tampering charges to the DC prosecution last month added another uncommon plot twist.
But Manafort’s case in Virginia is a different matter. From a purely legal perspective, the charges are pretty standard for a financial crimes prosecution. As Whiting put it “This case is interesting because of the scale of the fraud and tax evasion and also the involvement of Ukrainian officials. But in all other respects it’s just a fraud, tax evasion and money laundering case.”
Do cases like this typically reach trial?
That’s where this case becomes unusual. Plea bargains are the de facto mode of resolution for nearly all federal criminal charges: Fewer than 3 percent of cases go to trial. Moreover, the charges and evidence against Manafort do not lend themselves to a surprise courtroom upset. While the anticipated testimony of Manafort’s former partner, Richard Gates, is likely to be damning, it is not the basis for Manafort’s prosecution.
“This is a paper case, based on documents, records and email messages,” explained McQuade. “Gates can serve as a sort of narrator as a cooperating witness to provide context and background to explain the documents,” but the paper trail remains, even if Manafort’s lawyers succeed in undermining Gates’ testimony.
“Paper cases like this rarely reach trial because it is difficult to defend against documents,” McQuade said.“Witnesses can be impeached for bias, failure to observe or faulty memory, but documents don’t lie.”
How long will the trial last?
There is no exact equation here.
“My guess is two weeks,” McQuade told us. “The prosecutors estimate that the trial will take three weeks, but they usually err on the lengthy side so as not to irritate the judge, or run into conflicts on the judge’s calendar.”
Of course, as McQuade noted, there are factors beyond the prosecution’s control: “The length of trial depends very much on the judge and the defense.”
The Eastern District of Virginia is known as the “Rocket Docket” for its speedy disposition of trials, and Judge Ellis’ court is no exception.
“This judge has a reputation for moving cases quickly, but lengthy cross-examinations or a large number of defense witnesses could slow things down,” McQuade explained.
What about a plea deal?
While Manafort has not yet appeared willing to cooperate with Mueller, it is not too late for him to change course. In fact, many plea deals are struck during or on the eve of trial.
“Sometimes it happens at the last minute,” Whiting said. “The start of a trial can be sobering.”
Asked about Manafort’s unusual willingness to face federal trial, Wright explained that Manafort’s potential access to a rare presidential pardon may be factoring into his analysis.
“Trials are designed to resolve factual disputes, and I’m not sure how much room Manafort has on that front,” Wright said. “On the other hand, wealthy white collar criminal defendants with resources to devote to a full court defense may be more likely to risk it at trial. In addition, Donald Trump’s partisan political attacks on the investigation and his pardon dangling have already had an effect on Manafort’s willingness to cooperate. Trump’s use of the pardon power for ideological and political purposes to date is probably stiffening Manafort’s spine.”
Given the strength of the prosecution’s case, few experts believe that Manafort has refused to cooperate solely or predominantly because he believes he will win in the courtroom. In McQuade’s view, “he may be going to trial out of loyalty to Trump, or he may fear consequences from Russia if he flips.”
Others, like Whiting, see it hanging on the pardon: “I believe that if Manafort goes to trial next week and does not reach a cooperation deal with the prosecutors, it will be because he believes that ultimately he will be pardoned.”
Speaking of pardons…
Trump has not issued a public pardon for any known subject of the Special Counsel’s investigation. Yet.
Pardoning Manafort would undermine the rule of law and is expected to provoke broad, public outrage even among some of Trump’s Republican allies. A pardon “would constitute a gross abuse of power,” said Wright. Still, with Trump’s assertion that he has the “absolute right” to pardon even himself, it is not difficult to imagine the president extending such a gesture to Manafort if it meant protecting himself.
If Trump is considering a pardon for Manafort, the question turns to timing and scope. As McQuade noted, “a pardon may be granted before or after conviction or even before charges are filed, as we saw with Gerald Ford’s pardon of Richard Nixon.” Of course, charges have already been filed against Manafort. But, according to Whiting, there also is “some evidence that John Dowd [Trump’s former lawyer] already floated the possibility of a pardon in the future for Manafort.” As he explained in a Just Security post, the mere act of dangling a pardon in this manner could be seen as an illegal obstruction of justice.
So, Trump could be waiting to pardon Manafort until later. Delaying a pardon until after Manafort is tried – or convicted – may narrow the possibilities for any state prosecutions. Moreover, Whiting emphasized, “the only way to keep Manafort quiet is to assure him that he will receive a pardon in the future so that he sticks to his guns and refuses to cooperate with Mueller. If Trump were to pardon Manafort now, then Manafort might be forced to testify.”
According to McQuade, “a pardon would not necessarily prevent Mueller from calling Manafort as a witness against Trump because a pardon would remove Manafort’s ability to invoke his Fifth Amendment right against self-incrimination in a federal case.” Any testimony could be used in impeachment proceedings and likely publicized long before that. However, McQuade cautioned that even in this circumstance, “the possibility of state charges could permit Manafort to invoke his Fifth Amendment right.” Still, McQuade also highlighted, some the charges Manafort faces, like those relating to the FARA violation, are uniquely federal.
Trump only has federal pardon power. What about state prosecutions?
Generally speaking, state prosecutions for criminal conduct that was already subject to federal trial are unusual and, in some cases, prohibited by state law.
Under Virginia law, federal prosecution is a bar to state prosecution of the same act. The law defines the prosecution as commencing once jeopardy attaches, which occurs when the jury is empaneled. Some of the charges against Manafort strongly suggest that he may have committed additional state crimes in New York as well, but New York has a double jeopardy statute analogous to Virginia’s. So, unless the law is changed in Virginia, Manafort will be largely shielded from Virginia state prosecution for the same acts once the jury is selected and sworn in, which could happen as early as today or Wednesday.
But, that’s not the whole story.
A subsequent state prosecution is not completely out of the question if Manafort is acquitted or pardoned. There are three possibilities to consider. First, the federal charges against Manafort in Virginia (and DC) have almost certainly not included the full scope of criminal activity that could be prosecuted in federal or state court. In fact, as Jed Shugerman has argued, Mueller may be strategically declining to bring certain federal charges in order to insulate them from a presidential pardon. Second, states could bring charges for crimes that are related to those included in the current federal cases, but distinct enough to avoid double jeopardy problems. The third possibility is that a change in state law allows for state prosecution. (Lawmakers in New York have already proposed amendments to the state’s double jeopardy statute.)
Any of these scenarios could be workable without constitutional issue. As McQuade explained, “Manafort could be charged in state court for some of the fraud offenses, for instance, because the dual sovereignty doctrine permits state and federal prosecutors to charge the same crimes without violating the double jeopardy clause. This process occurred in the cases against police officers in the Rodney King beating, where federal charges were filed after acquittal in state court.”
However, as Whiting noted, concurrent or successive state prosecutions are rare for reasons that may be more about legal principles than rules. “Since the federal trials are going forward, it is very unlikely that there will be state charges for the same conduct,” said Whiting in reflecting on the basic premise. “Even though there is no federal double jeopardy bar to prosecuting someone under federal law and under state law for the same conduct, some state constitutions prohibit it and prosecutors generally refrain from taking this step even when it is legally permissible.”
Of course, a pardon from Trump could prompt departure from this tradition. Whiting acknowledged this: “If there is a federal prosecution followed by a pardon I could imagine state prosecutors being willing to go forward with a state crime prosecution for the same conduct in order to vindicate state interests – as long as the state constitution permitted a successive prosecution. The state prosecutor could conclude that because of the pardon, the federal prosecution failed to vindicate the separate state interests in prosecution.”
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