Few things tick off a federal prosecutor more than being double-crossed by a defendant who came sniffing around for a plea deal the day before his trial was set to begin.
Enter Paul ManafortPaul John ManafortDOJ investigating one-time Trump campaign adviser over alleged ties to Qatar: report Foreign lobbyists donated over M during 2020 election: report Former Mueller prosecutor representing Donoghue in congressional probes: report MORE, Donald TrumpDonald TrumpMcAuliffe takes tougher stance on Democrats in Washington Democrats troll Trump over Virginia governor's race Tom Glavine, Ric Flair, Doug Flutie to join Trump for Herschel Walker event MORE’s former presidential campaign chairman.
Last week The New York Times reported that after Manafort signed a cooperation deal with Special Counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE, Manafort’s attorney regularly met with Trump’s attorneys and disclosed “valuable insights into the special counsel’s inquiry and where it was headed.”
As a former federal prosecutor who handled hundreds of cooperation deals like Manafort’s, I can comfortably say that what Manafort did would be uniformly perceived by prosecutors as a double-cross.
When a defendant enters into a cooperation deal, like Manafort did with Special Counsel Robert Mueller, there is an understanding of good faith that both parties will work toward the same goal. The defendant will truthfully disclose information about criminal activities of himself and others. In exchange, the prosecutor will reward the defendant by recommending a reduced sentence.
In the process of interviewing a cooperating defendant, questions asked by the prosecutor will unintentionally, but necessarily, reveal information about the prosecutor’s investigation. The questions can disclose criminal events of interest, people who are targets of the investigation, and evidence that the prosecutor has obtained.
In Mr. Manafort’s case, the events he was questioned about are undoubtedly the very things Mr. Trump will need to defend against. So, while it may not have been illegal, it was a sleazy move for Manafort to agree to fully cooperate with Mr. Mueller and then secretly work to undermine his investigation.
Making matters worse, at the same time Manafort’s attorneys were running to Trump’s team and divulging Mueller information that would help the president, Manafort apparently was lying to the prosecutors during the course of his interviews. The special counsel said as much when he filed a notice announcing that Manafort had breached his plea agreement by repeatedly lying and committing new crimes.
Paul Manafort has been operating as a savvy fraudster for more than a decade. By taking a cooperation deal, Manafort knew that Mueller controlled his fate and that if a sentence reduction was in the cards, it would come through Mueller.
When you are trying to get a squirrel to eat out of your hand, you don’t make any big moves. Lying to Mueller and running to Trump’s lawyers with Mueller’s secrets is a big move. It’s legal suicide.
Unless, of course, Manafort knew he had the ear of someone who could do more for him than Mueller.
For Manafort, the only thing better than serving less time in prison is serving no time in prison. A presidential pardon would have that covered. But, what would motivate the president to put pen to pardon paper?
The President’s personal attorney, Rudolph Giuliani, acknowledged to the Times that information Manafort’s attorney took from meetings with Mueller and delivered to Trump’s lawyers, helped shape Mr. Trump’s defense strategy and provided ammunition in his public relations campaign against Mueller’s office.
Having a mole inside the prosecution team, who pretends to be cooperating with the special counsel but is really lying to prosecutors and passing information to Team Trump, well, that sounds an awful lot like spying.
To the extent there was any ambiguity about the Manafort-Trump arrangement, with a series of tweets last Tuesday, the President appeared to begin laying the groundwork to satisfy his part of the apparent quid pro quo. Trump tweeted that Mueller’s investigation into Russian interference in the 2016 presidential election was “ruining lives” of witnesses who were “refusing to lie.” He followed with “heroes will come of this,” implying that witnesses who resisted cooperating with Mueller are heroes. Yes, Mr. Manafort, he’s referring to you.
If the tweets represented Mr. Trump dipping his toe in the water to test the current, by the following day the president was in waist-deep. In an interview with the New York Post, the President said that a pardon for Mr. Manafort was not “off the table.” No one should be surprised if Trump soon drops the double negatives and affirmatively places Manafort’s pardon on the table with a holiday garnish.
There are several possibilities why Paul Manafort agreed to cooperate with Special Counsel Mueller and then did the opposite. However, the link between Manafort’s silence, his attorney’s disclosure of Mueller’s strategy, and a presidential pardon is quickly evolving from shadowed line to highway lane marker.
I’m not suggesting anything as crass as a direct statement from Trump to Manafort. I imagine something more analogous to the President’s now infamous soft-peddle effort to convince former FBI Director James ComeyJames Brien ComeyGiuliani told investigators it was OK to 'throw a fake' during campaign DOJ watchdog unable to determine if FBI fed Giuliani information ahead of 2016 election Biden sister has book deal, set to publish in April MORE to drop the investigation into former National Security Advisor Michael Flynn: “I hope you can see your way clear to letting this go, letting Flynn go. He is a good guy. I hope you can let this go.”
Given that Manafort is in custody, I’m also not suggesting that he spoke directly with the President. That’s where the regular meetings between Manafort’s attorney and Mr. Trump’s attorneys comes in. The regular contact between the Manafort and Trump camps would have made for an easy arrangement with no paper, email, or phone trail.
The President’s reference to Paul Manafort as a hero reminds me of the 1960’s TV sitcom “Hogan’s Heroes,” which centered around Bob Hogan, a WWII prisoner-of-war. Hogan was an American in a German prison camp.
Manafort’s circumstance is like Hogan’s – except that Manafort was working to undermine an investigative team appointed to ensure free democratic elections, and Hogan risked his personal safety for the good of his country in an effort to do the right thing. Other than that, sure, Manafort is a “hero.”
Michael J. Stern was a federal prosecutor for more than 24 years with the Department of Justice in Detroit and Los Angeles, prosecuting high-profile crimes, including conspiracy cases related to international drug trafficking and organized crime. He has since worked on the indigent defense panel for the federal courts.