Justice John Paul Stevens's fiercely modest judicial method
Justice was served by Manafort's sentences, but the story isn't over
The ink was not even beginning to dry on Paul Manafort's sentencing order in Washington, D.C., when the Manhattan district attorney dropped additional New York state charges on him for mortgage fraud, falsifying business records and conspiracy - state crimes that President Trump cannot pardon. The result may be, as I predicted in January, that Manafort seeks refuge in the only sanctuary he has left: special counsel Robert Mueller.
Federal Rule of Criminal Procedure 35 permits prosecutors to seek a reduction in sentence for a cooperator for up to one year after sentencing. So, even though Manafort now has been sentenced to a combined 7½ years in prison as a result of his Virginia and Washington federal cases, he still can have that sentence reduced by cooperating with Mueller.
But why would Mueller take him back? The answer is that Manafort, Trump's former campaign manager, is incredibly important to the government's Russia-collusion case. Why else did Mueller expend so much time and effort to indict him in two jurisdictions, try the Virginia case to a jury, and continue to try to work with Manafort even after he was convicted in Virginia?
Manafort was the only person present in the infamous Trump Tower meeting in June 2016 who was not Russian or related to Trump. Manafort also provided key polling data to alleged Russian spy Konstantin Kilimnik. In other words, Manafort is in the best position to provide critical information to the government about the Trump campaign's contacts with the Russians leading up to the 2016 presidential election. If Manafort's firsthand accounts are substantially corroborated by other evidence such as emails, text messages, bank records, other witness accounts and common sense, then he still has a great deal of value to Mueller.
Having worked as a federal prosecutor for 13 years in the Clinton, Bush and Obama administrations, I can report that criminal defendants flip at all stages of the criminal process. I flipped several defendants as late as in the middle of trial against their co-defendants. So, the fact that Manafort has been sentenced twice, lied countless times and has all sorts of other baggage does not necessarily mean he has no value to Mueller.
With regard to Manafort's federal sentencings, many people believe the Virginia judge was too lenient on Manafort, and the combined 7½ year prison sentence also is too light. However, anything substantially greater than that sentence may be tantamount to a death sentence. As egregious as Manafort's crimes were, his actions did not warrant a death sentence. I suspect that is why Judge Amy Berman Jackson opted to give him a sentence in Washington that provided him some hope of living outside of jail before he dies. Of course, Manafort's poor health may moot that point altogether.
One interesting question is whether the Manhattan district attorney coordinated his efforts with Mueller. It surely was not coincidence that the New York state charges were announced within minutes of Manafort's federal sentencing in Washington. The district attorney either sat silently on the sidelines, waiting for Manafort's federal cases to conclude, or Mueller was in on the strategy. In either case, Manafort has only one choice left: Mueller, or likely death in prison.
Of course, Manafort could fight the New York state case, but assuming the evidence is strong, a conviction is likely. First, Manafort confessed to all of the facts underlying the New York state charges when he pleaded guilty to the federal charges in Washington. Second, what New York juror does not know Manafort is a two-time convicted felon - something an average juror in a less publicized case would never know?
Manafort's lawyers would certainly argue to New York state court judges prior to any state trial that double jeopardy requires dismissal of the New York state charges, which may offer Manafort his best opportunity at a reprieve.
Nonetheless, it has been clear from the moment Mueller targeted Manafort with two separate federal indictments that Manafort was a huge prize for Mueller. When Manafort refused to cooperate, it was a huge loss for Mueller. But now, with the New York state charges, it is likely Mueller will get his man and the cooperator he long has sought to cultivate. That is usually how it works out for prosecutors, one way or another.
Seth B. Waxman, a partner at the Dickinson Wright law firm in Washington, D.C., served as a federal prosecutor in the United States Attorney's Office for the District of Columbia, and has worked as a criminal defense lawyer in Washington and New York.