By: Houston Criminal Defense Lawyers John T Floyd and Christopher Choate
Between March 19, and August 19, 2016, longtime Republican political operative Paul Manafort played a significant role in the presidential campaign of Donald Trump, including being named campaign manager on May 19. Manafort’s power and influence in the campaign was apparent in June 2016 when he forced the ouster of Corey Lewandowski, a longtime Trump friend/advisor who ran the president’s campaign before Manafort came on board. Manafort then proceeded to run and supervise the Republican National Convention in Cleveland between July 19 and July 21.
Beyond a doubt, Manafort was the alpha male in the Trump campaign during the three-month period between May 19 and August 19, 2016
Manafort’s Ties to Russia Make Headlines
Things turned badly for Manafort when an August 14 New York Times report directly linked him to the former pro-Russian government in Ukraine. Put simply, it was disclosed that Manafort had close ties with Russian billionaires, Vladimir Putin’s political operatives, and Russian intelligence services.
Manafort stepped down from the Trump campaign on August 19. The campaign could not risk exposure of the contacts and coordination that had already occurred—but weren’t widely, if at all, known to the public—between the campaign and Russian interests. For example, Donald Trump, Jr., Jared Kushner, and Manafort had met with a slew of Russians in the Trump Tower in June 2016 to discuss securing “dirt” on the Clinton campaign. The following month Trump himself was coincidentally calling on the Russians to locate and disclose Hillary Clinton’s “missing emails.”
Hints of Russian/Trump campaign “collusion” (which is an unfortunate misnomer because the term lacks a legal basis in this context) were just beginning to swirl in political and media circles when the Times report about Manafort surfaced. Unbeknownst to the public or the media, the FBI had already launched a major “intelligence/national security” investigation into possible collusion and coordination between the Russians and the Trump campaign.
Mueller Appointed as Special Counsel by Trump Administration
After Trump fired former FBI Director James Comey in May 2017, Deputy Attorney General Rod J. Rosenstein appointed former FBI Director Robert J. Mueller as Special Counsel for the United States Department of Justice. Rosenstein outlined the three avenues of investigation, which had begun under Comey’s tenure as FBI Director: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; (ii) any matters that arose or may arise directly from the investigation; and (iii) any other federal crimes committed in the course of, and with intent to interfere with the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses. (Rosenstein was tasked with making the appointment because Attorney General Jeff Sessions was forced to recuse himself from any investigations involving Russia because he failed to disclose his own contacts with Russians while acting as a Trump surrogate during the campaign.)
Mueller’s investigation has so far led to the indictment of Manafort and his longtime partner Richard Gates on criminal charges, which, on their face, do not initially appear directly related to the Trump campaign.
Former Campaign Manager Indicted
Manafort was indicted October 27, 2017 on twelve counts, including conspiracy against the United States, money laundering, failing to register as a foreign agent, failing to disclose foreign banking activity, making false statements to the Justice Department, bank fraud, tax fraud, and more.
If convicted on all counts, the 68-year-old Manafort theoretically faces up to 115 years in federal prison. A conviction on just one or more of the major counts in the indictment would result in the aging former political operative spending most of the rest of his life in prison:
- Conspiracy against the U.S.: A conviction under 18 U.S.C. § 371, the conspiracy statute, can result in a sentence up to five years and a fine up to $250,000.
- Money laundering: A conviction under 18 U.S.C. § 1956, the money laundering statute, can result in a sentence up to twenty years and a fine totaling twice the amount of the money laundered.
- Acting as an agent of a foreign principal: A conviction under 22 U.S.C. §§ 611-621, the Foreign Agents Registration Act, can result in a sentence up to ten years.
- Making false and misleading statements FARA statements: A conviction under 22 U.S.C. § 618, the false FARA statements statute, can result in a sentence up to five years and a fine up to $10,000.
- Making false statements: A conviction under 18 U.S.C. § 1001, the statute governing false statements to FBI or Justice Department, can result in a sentence up to five years.
- Failure to file reports of foreign bank and financial accounts (seven counts): A conviction under the Foreign Bank Account Report can result in a sentence up to five years and a $250,000 fine.
Paul Manafort is in serious legal jeopardy. At his age with the harsh criminal penalties he faces, if convicted on any of the charged offenses, he must make a hard choice. He can choose to cooperate with the special counsel in exchange for a chance at a more lenient sentence or he can fight his case before a jury with the hope of a pardon by President Trump, if convicted.
5K1.1 Substantial Assistance for Cooperation
There are two generally accepted ways the government can reward a defendant who provides “substantial assistance”—cooperation with the government in the prosecution of others—in a criminal case: the first, most common and preferred, way, is through a motion for downward departure filed at sentencing by the Assistant United States Attorney for providing substantial assistance pursuant to U.S. Sentencing Guideline § 5K1.1; or the second, less common and often weaker, way, is through a post-conviction motion filed by the AUSA to reduce a sentence for substantial assistance pursuant to Federal Rule of Criminal Procedure 35(b).
Plea negotiations take place is virtually all federal crime cases. They are most often initiated by the government. The government will offer a willingness to file a “5K1.1 Motion” if the defendant can provide substantial assistance that will lead to the prosecution of others. A criminal defense attorney has an absolute duty to convey to the defendant the government’s willingness to plea bargain. If the defendant is receptive to plea bargaining, government prosecutors and the defense attorney will usually negotiate the terms for an interview in a proffer letter, also known as “queen for a day” letter. The proffer letter spells out the terms of the debriefing with federal agents and the defendant, and is normally just the beginning of the cooperation process. Cooperation can also be “proactive,’ which usually entails actively working on the investigation by approaching other investigative targets with clandestine surveillance such as “wearing a wire” or conducting controlled phone calls.
Whether a 5K1.1 Motion is filed is entirely in the government’s discretion. If one is filed at sentencing, it is sealed and includes substantive details regarding the defendant’s cooperation, along with making a recommendation to the court as to sentencing. The court is under no obligation to adhere to the government’s recommendation; it is free to impose a lower sentence on the defendant if the defense attorney has convinced the court that the defendant’s assistance was more substantial than the government has suggested. Likewise, the court may impose a higher sentence on the defendant if the court feels that punishment should be more severe despite the defendant’s cooperation.
Rule 35, Post-Conviction Cooperation
If the defendant is unable or unwilling to cooperate until after conviction to provide substantial assistance, or the government decides to wait until after the defendant has been convicted before making a determination that the defendant’s assistance was substantial, the government can file a “Rule 35(b) Motion.” This motion, like the 5K1.1, will provide sealed information to the court documenting the extent of cooperation and the reduction in sentence the government believes is appropriate.
Both motions have a significant benefit that allows the judge, under § 3553(e), to disregard any statutory mandatory minimum sentence that could be, or has been, imposed.
Manafort and Gates face tough decisions: do they accept plea deals straight out of the chute in exchange for 5K1.1 Motions, hoping to get the most value for their information? Or do they fight the case before a jury with the hope and anticipation that, if convicted, a presidential pardon will come their ways?
Manafort May Miss the Train
The problem inherent in waiting is that the special counsel’s investigation may lead to sources not only willing but eager to provide the same substantial assistance that Manafort could have provided. The government then would have no incentive to file a motion for Manafort. The government’s position would be that he missed the cooperation train.
There is a high probability that Manafort has information that could connect the president, his family members or other high-ranking officials in the Trump campaign to direct assistance from the Russians that helped Trump get elected President of the United States. After all, at roughly the same time the charges against Manafort and Gates were announced, a plea agreement for Trump foreign policy advisor George Papadopoulos was unveiled, which detailed the type of coordination at the heart of Mueller’s investigation. In the factual basis filed with the plea agreement, a reference is made to “another high-ranking campaign official” who is widely understood to be Manafort.
The proverbial ball is now in Manafort’s court—and there is every reason to believe, based on the personal conduct of the president himself, his family members and a slew of his advisors, that back-channel communications are already underway to secure Manafort’s silence in exchange for executive clemency.
There is no question that the president has the authority to grant executive clemency to Manafort upon conviction for any reason he chooses or for no reason at all, but the issue of whether the president can issue a pre-conviction pardon has not been constitutionally resolved. President Ford did it for Richard Nixon, but that pardon was never constitutionally challenged to the U.S. Supreme Court.
A pre-conviction pardon of Manafort by President Trump would result in an immediate court challenge that would, in all likelihood, enjoin the legitimacy of the pardon until the constitutional issue about whether the president has the power to issue such pardons could be resolved by the Supreme Court.
As for a post-conviction pardon of Manafort by the president that executive action would almost certainly, in more normal, more rational times, result in Trump’s impeachment. These are not normal, rational times, and it wouldn’t surprise us one bit that such an action would fail to lead to impeachment; that is, unless a tax cut for the extremely wealthy had been passed. If taxes for the extremely wealthy are cut, perhaps Congress would decide it can do without Trump’s vexing frustrations. In any event, a pardon for Manafort could conceivably nudge Trump’s already historically low approval ratings down a bit more.
Manafort is in a legal pickle, one that he will be in for a long time to come.
Deal or no deal?
Either way, the rest of his life will most probably be embroiled in never ending legal proceedings and conspiracy theories…