Former President Trump’s campaign manager Paul Manafort recently received relatively light prison sentences for two federal convictions, far below the federal sentencing guidelines, in two U.S. District Courts—one in the Northern District of Virginia and the other in the District of Columbia—for a litany of bank fraud and tax evasion convictions. Given that his second sentence was ordered to run concurrent with the first sentence, he is now facing the reality of serving approximately 81 months or 6 ½ years in the custody of the federal Bureau of Prisons, far below what most non-violent drug offenders will serve.
President Trump has dangled the possibility of a pardon (or a commutation of sentence) for Manafort since his arrest in October 2017. It is widely believed that the president’s quasi-promise of a pardon for Manafort has been repeatedly extended to buy Manafort’s silence in a dozen or more criminal investigations involving the president and his inner circle, including his three adult children.
Manafort Facing Independent State Charges in NY
Within minutes of the last federal prison sentence imposed on Manafort, the Manhattan District Attorney’s Office for the State of New York announced indictments against him for 16 criminal charges, including real estate fraud and falsifying business records.
Manhattan District Attorney Cyrus Vance brought the state charges against Manafort because they are pardon-proof from the president’s federal executive clemency powers.
“No one is beyond the law in New York,” Vance said in a statement announcing the indictments.
Questions of Double Jeopardy Arise
The question that immediately arose in legal circles is whether the state charges against Manafort constitute double jeopardy—a concept rooted in the Fifth Amendment of the U.S. Constitution that, “No person shall … be subject for the same offence to be twice put in jeopardy of life or limb.”
This constitutional concept was inherited from English common law. The Supreme Court effectively redefined the concept in 1922 in United States v. Lanza when it established the “dual sovereignty rule”—a constitutional principle that each state and the federal government are individual sovereignties empowered with the authority to establish criminal offenses that violate the peace and dignity of a given sovereignty and that each sovereignty, therefore, has the unquestioned right to independently prosecute those offenses.
The dual sovereignty rule effectively carved out an exception to the historical legal understanding of double jeopardy—namely, that the prosecution by one sovereignty does not automatically preclude prosecution by another sovereignty for the same subject matter.
Dual Sovereignty, Double Jeopardy Under Judicial Scrutiny
The dual sovereignty rule has drawn widespread constitutional criticism since its pronouncement nearly a century ago by the Supreme Court. And, as circumstance would have it, the rule is currently under serious constitutional challenge before the high court in Gamble v. United States.
The issue squarely before the Court in Gamble, as presented in amici curiae brief by the Cato Institute’s Center for Constitutional Accountability, is whether “the dual-sovereignty doctrine is inconsistent with the incorporation of the double jeopardy clause against the states.”
Whether the eventual ruling in Gamble will have a significant legal impact on the State of New York’s decision to prosecute Paul Manafort remains to be seen.
What is clear is that the current state of law raises what former federal prosecutor and conservative legal analyst Andrew C. McCarty calls “some interesting legal and strategic questions about double jeopardy.”
Given the best reading of current double jeopardy jurisprudence, the two crimes Manafort pled guilty to in the District of Columbia district court—“conspiracy against the United States” and “conspiracy to obstruct justice”—are off the table for a similar prosecution by the State of New York because it can reasonably be argued that jeopardy attached to those two convictions.
But what about the federal case against Manafort in the Northern District of Virginia for which he was indicted on 18 counts in October 2017?
Manafort was convicted on eight of those counts in August 2018. The jury deadlocked on the remaining 10 counts. A mistrial was declared.
As with the two D.C. guilty pleas, a reasonable argument can be made that jeopardy attached to the eight counts for which Manafort was convicted. The 18 counts and verdicts were reported by USAToday:
- Filing false U.S. individual income tax returns, 2010. Verdict: Guilty
- Filing false U.S. individual income tax returns, 2011. Verdict: Guilty
- Filing false U.S. individual income tax returns, 2012. Verdict: Guilty
- Filing false U.S. individual income tax returns, 2013. Verdict: Guilty
- Filing false U.S. individual income tax returns, 2014. Verdict: Guilty
- Failure to file reports of foreign bank and financial accounts, 2011. Verdict: No agreement by jury; judge declares mistrial on this count.
- Failure to file reports of foreign bank and financial accounts, 2012. Verdict: Guilty
- Failure to file reports of foreign bank and financial accounts, 2013. Verdict: No agreement by jury; judge declares mistrial on this count.
- Failure to file reports of foreign bank and financial accounts, 2014. Verdict: No agreement by jury; judge declares mistrial on this count.
- Bank fraud conspiracy ($3.4 million loan). Verdict: No agreement by jury; judge declares mistrial on this count.
- Bank fraud ($3.4 million loan). Verdict: Guilty
- Bank fraud conspiracy ($1 million loan). Verdict: No agreement by jury; judge declares mistrial on this count.
- Bank fraud ($1 million loan). Verdict: Guilty
- Bank fraud conspiracy ($5.5 million loan). Verdict: No agreement by jury; judge declares mistrial on this count.
- Bank fraud conspiracy ($9.5 million loan). Verdict: No agreement by jury; judge declares mistrial on this count.
- Bank fraud ($9.5 million loan). Verdict: No agreement by jury; judge declares mistrial on this count.
- Bank fraud conspiracy ($6.5 million loan). Verdict: No agreement by jury; judge declares mistrial on this count.
- Bank fraud ($6.5 million loan). Verdict: No agreement by jury; judge declares mistrial on this count.
That leaves ten charges available for re-prosecution.
That’s because mistrials do not necessarily invoke double jeopardy. Deadlock jurors can lead to a mistrial when jurors are honestly split in their opinions allowing the trial judge to declare a retrial under the “manifest necessity” rule.
Deadlock Jury Creates Necessity of Mistrial
One juror held out on ten counts in the Manafort indictment thereby creating a hung jury, and under these circumstances the trial judge had no real choice but to order a retrial.
In September 2018, the Special Counsel Robert Mueller announced in a plea agreement with Paul Manafort on the D.C. charges that it would not retry Manafort on the 10 remaining counts in the Virginia case.
The question then is whether those ten counts opened the door for the New York state charges. New York has “one of the most stringent” double jeopardy laws in the U.S. and that in New York State, the “jeopardy” part “attaches after a guilty plea, a conviction or an acquittal.”
New York Criminal Procedure Law § 40.20(1) provides that “a person may not be twice prosecuted for the same offense.” Subsection 2 of the statute provides exceptions of this rule:
A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:
(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or
( b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; or
(c) One of such offenses consists of criminal possession of contraband matter and the other offense is one involving the use of such contraband matter, other than a sale thereof; or
(d) One of the offenses is assault or some other offense resulting in physical injury to a person, and the other offense is one of homicide based upon the death of such person from the same physical injury, and such death occurs after a prosecution for the assault or other non-homicide offense; or
(e) Each offense involves death, injury, loss or other consequence to a different victim; or
(f) One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon insufficiency of evidence to establish some element of such offense which is not an element of the other offense, defined by the laws of this state; or
(g) The present prosecution is for a consummated result offense, as defined in (g) subdivision three of section 20.10, which occurred in this state and the offense was the result of a conspiracy, facilitation or solicitation prosecuted in another state.
(h) One of such offenses is enterprise corruption in violation of section 460.20 of the penal law, racketeering in violation of federal law or any comparable offense pursuant to the law of another state and a separate or subsequent prosecution is not barred by section 40.50 of this article.
(i) One of the offenses consists of a violation of 18 U.S.C. 371 , where the object of the conspiracy is to attempt in any manner to evade or defeat any federal income tax or the payment thereof, or a violation of 26 U.S.C. 7201 , 26 U.S.C. 7202 , 26 U.S.C. 7203 , 26 U.S.C. 7204 , 26 U.S.C. 7205 , 26 U.S.C. 7206 or 26 U.S.C. 7212(A) , where the purpose is to evade or defeat any federal income tax or the payment thereof, and the other offense is committed for the purpose of evading or defeating any New York state or New York city income taxes and is defined in article one hundred fifty-five of the penal law, article one hundred seventy of the penal law, article one hundred seventy-five of the penal law, article thirty-seven of the tax law or chapter forty of title eleven of the administrative code of the city of New York.
New York’s Doctrine of Double Jeopardy
Andrew McCarthy refers to this law as a “doctrine of equitable double jeopardy.”
“A person may not be prosecuted if he already has been prosecuted on the same factual transaction – regardless of whether the prosecution was by New York State or some other sovereign,” McCarthy explains.
But as Noah Bookbinder, Norman Eisen, Caroline Fredrickson, and Conor Shaw pointed out in a May 10, 2018 article for the American Constitution Society, a “prior prosecution of a federal offense is not a bar [under Subsection (2)(b) of § 40.20] to a prosecution of a similar New York offense where the two offenses have substantially different elements and the acts establishing each offense are clearly distinguishable or where each offense has an element that is not in the other and the ‘statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil.’”
Manafort’s attorneys no doubt will rely strongly on New York case law which generally provides that the state’s double jeopardy statute § 40.20 & 30 protects against separate prosecutions for “two offenses based upon the same act or criminal transaction.”
Clearly Distinguishable Elements of Offense
The ultimate question in the Manafort case, as we see it, will turn on the elements of the New York offenses and whether the elements and evidence establishing those offenses is “clearly distinguishable” from the evidence used to prosecute Manafort in federal court.
One thing for sure: the New York charges for the moment renders moot any corrupt pardon, and immediate release of Manafort by President Trump.