NY's political prosecution of Manafort should scare us all

The Manhattan District Attorney’s Office has indicted Paul Manafort for mortgage fraud and more than a dozen other state felonies. This is a nakedly political prosecution. Democrats, who run the Empire State, are apoplectic that President TrumpDonald John TrumpDem lawmaker says Electoral College was 'conceived' as way to perpetuate slavery Stanley Cup champion Washington Capitals to visit White House on Monday Transportation Dept requests formal audit of Boeing 737 Max certification MORE could pardon his former campaign manager, who has been sentenced to 90 months in prison in the Mueller probe.

The federal charges had nothing to do with the rationale for the special counsel’s investigation, which involves Russia’s interference in the 2016 election and any possible Trump campaign coordination in that effort. But there is no doubt that the convictions and sentences, which resulted from separate but related proceedings in the Eastern District of Virginia and the District of Columbia, are valid. In Washington on Wednesday, Judge Amy Berman Jackson added 43 months of incarceration to the 47-months of imprisonment Judge T.S. Ellis imposed in Alexandria last week.

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The New York state charges, announced shortly after Manafort’s second federal sentencing, raise some interesting legal and strategic questions about double jeopardy and pardons.

Most of the time, a federal prosecution is no impediment to a subsequent state prosecution based on the same conduct or charges. Under the so-called dual sovereignty doctrine, there is no double-jeopardy protection because that constitutional safeguard only prevents the same sovereign from prosecuting a person twice for the same offense. In our system, the federal government and the states are deemed to be different sovereigns. It is a dubious proposition since it is supposed to be the people who are sovereign, regardless of whether we’re talking about federal or state government matters.

For now, though, the dual sovereignty doctrine is a settled part of our jurisprudence. I say “for now” because, during this term, the Supreme Court is considering Gamble v. United States, a case challenging that doctrine. Recently retired Sen. Orrin HatchOrrin Grant HatchNY's political prosecution of Manafort should scare us all Congress must break its addiction to unjust tax extenders The FDA crackdown on dietary supplements is inadequate MORE (R-Utah) even filed an amicus brief asking the court to end the federal-state distinction.

Dual sovereignty is unpopular because we recognize — at least when we are not in a highly charged political case — that the same fundamental unfairness is involved whenever a person is prosecuted multiple times for the same offense, no matter who is doing the prosecuting.

Because of this unfairness, some states have taken curative action. New York is one of them. New York follows a doctrine of equitable double jeopardy: A person may not be prosecuted if he already has been prosecuted for crimes based on the same factual transaction — regardless of whether the prior prosecution was by New York State or some other sovereign.

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When I was a federal prosecutor, especially in organized crime cases, I saw this operate in practice several times. If, for example, I was working on a RICO case, and New York prosecutors were working on a crime (e.g., murder) that would fit in my racketeering enterprise, we feds sometimes would hold back and let the state go first. That is because, under dual sovereignty, the federal government still could prosecute after the state trial; but under New York’s law, the state could not prosecute after the federal trial. That is, in the parlance of prosecutors, the feds could jeopardy the state out, but the state could not jeopardy the feds out.

So how might this work in Manafort’s case?

Well, as the New York Times notes, the New York state charges filed Wednesday are based on bank loans that were part of the fraud charges brought by Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE in the Virginia case. The Times says that “the Manhattan prosecutors deferred their inquiry in order not to interfere with Mr. Mueller’s larger investigation into Russian meddling in the 2016 election.” Having been in these tussles, I don’t buy that. The Manhattan prosecutors stood down because, once Mueller’s federal case went forward, they were out of luck.

And now, gamesmanship is the order of the day: The state prosecutors have brought a case they otherwise never would waste time on — not because the case should be done, but to try to block a pardon.

This raw politicization of prosecutorial power ought to frighten everyone. Yet, solely because of Donald Trump and Paul ManafortPaul John ManafortHill-HarrisX poll: 76 percent oppose Trump pardoning former campaign aides New York prosecutors throw out Constitution to charge Manafort Another prosecutor leaves Mueller investigation in latest sign probe may be winding down MORE, New York Democrats have been pushing to water down state double jeopardy protection — shamefully, as if civil rights were only for the ruling class’s political friends.

If Trump were to pardon Manafort, that would vitiate the federal prosecution. The point of the pardon is to excuse the offense as if it never happened. So, the idea is that if Manafort’s federal prosecution were to be voided, there would be no state double jeopardy bar against a subsequent New York State prosecution.

But what if Trump gave Manafort the essence of what he wants, although not a pardon?

If I were representing Manafort, I would consider asking for a commutation, not a pardon. In a commutation, the president can reduce the sentence down to time served and spare the person any further prison time on the offense. Yet, the convictions stand.

I believe that as long as the federal convictions remain in place, Manafort would maintain his double-jeopardy protection against a future New York State prosecution based on the same conduct. So this could be the rare situation in which a commutation is better than a pardon. I’m betting Manafort, who will be 70 on April 1, cares little at this point about the stigma of felony convictions; he just wants to be out of prison.

I don’t carry any brief for Manafort. Indeed, I have argued that he got a much lighter sentence than federal guidelines for his crimes called for because Mueller manipulated federal conspiracy statutes to cap his sentence at 10 years. No one, however, should be singled out for prosecution because of his political associations.  

The New York district attorney did not indict Manafort because he committed mortgage fraud. The DA indicted Manafort because he worked on the Trump campaign and could be pardoned during Trump’s presidency. That’s disgraceful.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor.