News that Paul Manafort has written a book (scheduled to be published later this summer) is not surprising: he had texted about doing so during the Special Counsel investigation. As a result, the government anticipated as much when Manafort pleaded guilty before the Honorable Amy Berman Jackson in September 2018 shortly before his second trial (the month before, he had been found guilty of various felonies by a jury in the Eastern District of Virginia). The plea agreement Manafort entered into with the government allowed him to write anything he wanted, but provided that he could not profit from any such writings — a provision that the government uses when defendants in high-profile matters might seek to profit from their crimes. Judge Jackson specifically noted the provision before accepting Manafort’s guilty plea. (I was the lead prosecutor representing the Justice Department before the court.)

The provision reads:

Your client agrees not to accept remuneration or compensation of any sort, directly or indirectly, for the dissemination through any means, including but not limited to books, articles, speeches, blogs, podcasts, and interviews, however disseminated, regarding the conduct encompassed by the Statement of the Offense, or the investigation by the Office or prosecution of any criminal or civil cases against him.

Several issues arise now.

One legal issue is whether the presidential pardon Manafort received voids this provision in the plea agreement. The answer to that question is surely no. The plea agreement is a contract between the Department of Justice and Manafort, which can be specifically enforced. The pardon did not purport to address this provision, any more than the forfeitures Manafort agreed to in the agreement (which the Department of Justice continues to enforce, albeit only partially).

A second issue is whether Manafort has been paid directly or indirectly by his publisher (or any other party) for the book, for without that there is no violation of the plea agreement. This issue is one that the Department of Justice can readily resolve through a phone call to the publisher.

The remaining issue is whether the Department will in fact take any action — it has of course the discretion not to, in the same way that the Department chose not to seek to enforce the full forfeiture provisions set out in the plea agreement. But the issues that may have animated that forfeiture decision are different than those at issue here: whether defendants should be permitted to profit from their illegal actions? The Department can seek enforcement of this provision of the plea agreement and disgorge or attach any payments. The Department has another harsher remedy other than specific performance. If Manafort breaches the plea agreement by accepting remuneration for his book, he can be prosecuted for the crimes for which he was not pardoned – the pardon was narrow and only covered crimes Manafort was convicted and sentenced for, leaving a host of other criminal charges extant.  And the court already has found that Manafort breached his plea agreement (when he lied to the government after he pleaded guilty), so this in just an additional breach and justification for government action.

As an aside: it appears, from the detailed description of his book, that Manafort is borrowing a page from Michael Flynn and is now saying that he is not guilty of the crimes for which he pleaded guilty under oath. That would amount to an admission of perjury and intentional false statements – since Manafort told the Special Counsel’s Office and the court that he had in fact committed these crimes.

Time will tell how the Department resolves these issues.