Monday, August 20, 2018

Does the Manafort Verdict Matter?

by Michael Dorf

After two days of deliberations, the jury in the Paul Manafort trial took a break over the weekend, with the expectation of resuming this morning. On Friday Judge T.S. Ellis III ruled that he would not reveal jurors' identities after the trial, to spare them the death threats that he has apparently been receiving. Meanwhile, President Trump told reporters that he thought "the whole Manafort trial is very sad,” not because it shows what poor judgment he displayed in making Manafort his campaign chairman but because of what "they’ve done to Paul Manafort,” who “happens to be a very good person." Because the jurors have not been sequestered over the weekend, there is a decent chance that one or more of them will have by now seen Trump's remarks, prompting one Washington Post columnist to speculate that Trump has engaged in illegal jury tampering.

Meanwhile, does the Manafort verdict matter? Even if Manafort is acquitted or the jury hangs, special counsel Robert Mueller's team will have another shot at him in short order in Washington, D.C., where they will likely face a less crabby judge and more sympathetic jurors. And if Manafort is convicted in the current case and/or the DC case, so what? Trump will take one or more of the following actions: (a) Distance himself from Manafort by noting that the crimes at issue were unrelated to the Trump presidential campaign; (b) denounce the verdicts as a result of a "partisan witch hunt"; and/or (c) pardon Manafort. The Resistance will be outraged, but Trump's supporters will remain supporters.

And yet, even seen strictly through a political lens, the Manafort cases may matter, at least a little. To see how, let's go back to basics. In May 2017, Mueller was authorized by Deputy Attorney General Rod Rosenstein to investigate any collusion between the Russian government and the Trump campaign as well as any matters that arise "directly from the investigation," and (through the incorporation of a federal regulation) obstruction of the investigation. It is easy to see how some of the indictments Mueller has issued relate directly to Russian interference in the 2016 election, but the Manafort case is more tangential. Yes, the financial crimes Manafort appears to have committed arose in part out of his consulting for pro-Russian forces in eastern Europe, but mostly they pre-date his involvement with the Trump campaign. So why has Mueller gone after Manafort?

Part of the answer could be simply to seek justice. Mueller and his team of seasoned prosecutors understandably don't want to see Manafort get away with serious crimes. But if that were Mueller's only motive, he could have referred the Manafort case to the US Attorney's offices in Virginia and DC for regular prosecution. Indeed, Mueller (apparently at the urging of Rosenstein) handed off the Michael Cohen case to the US Attorney's office in New York rather than go after Cohen himself. What explains the difference?

Both Cohen and Manafort could potentially provide Mueller with a great deal of damaging information about the Trump campaign by flipping. Perhaps the difference is that Manafort was officially connected to the campaign while Cohen wasn't, but that seems like a mighty fine distinction, given that Cohen, as Trump's "fixer," apparently tried to suppress politically damaging information late in the campaign. It's possible that if the public knew more about what Mueller's team knows we would understand that there is some consistent principle that explains why he prosecuted Manafort directly but handed off the Cohen case; based on what we do know, it looks more like  a matter of timing.

Manafort was first indicted by Mueller in the fall of 2017. The FBI raid on Cohen's home and office took place in April of this year. In the roughly half a year between those events, the public learned that Trump had sought to fire Mueller, and Trump ratcheted up his "witch hunt" rhetoric. It's quite possible that if Mueller had learned what he came to know about Cohen earlier, he would have gone after Cohen directly, but to protect the investigation against further interference by Trump, he and Rosenstein thought it prudent to hand Cohen off.

Whatever the reason for Mueller's treating Cohen and Manafort differently, it seems clear that one aim of indicting Manafort was to obtain his cooperation, in much the way that Mueller received such cooperation by accepting guilty pleas from Gates, Michael Flynn, and others. But Manafort balked. He thought he could beat the rap, or that he didn't have anything of value to offer on Trump or others, or that if found guilty after trial, Trump would reward his loyalty with a pardon.

And that brings us to the reason why the Manafort case matters. Trump hasn't pardoned Manafort yet. Why not? The obvious answer is that Trump would pay a political price for doing so.

Whoa! Slow down, you say. Has Trump paid a political price for pardoning Joe Arpaio? The short answer is we don't really know, but even assuming he hasn't, pardoning Arpaio fit within Trump's get-tough agenda on immigration. A pardon to Manafort would be different, as it would smack of self-dealing.

Having said that, if I had been asked a few months ago whether Trump would pay a political price for pardoning Manafort to reward his loyalty, I would have guessed no. After all, Trump's pardon of Scooter Libby for obstruction of justice was understandably seen as a trial balloon and/or signal to the likes of Manafort that further pardons would be forthcoming if they would only avoid snitching. The Libby pardon quickly vanished into the void of yesterday's news, so I would have thought that a Manafort pardon would likely also be overwhelmed by the fog of distracting incendiary tweets.

So why hasn't Trump already pardoned Manafort or, for that matter, other possible targets of the investigation, like Don Jr.? We can almost certainly rule out one possibility-- that doing so would be illegal. In my view, notwithstanding broad language in the 1925 SCOTUS ruling in Ex Parte Grossman, there are limits on the purposes for which a pardon can be issued. For example, if a president took a bribe in exchange for a pardon, that would make the president guilty of accepting a bribe and might even void the pardon. Prof. Buchanan has elaborated a view like this on this blog. But here's the thing: Although we here at DoL doubt that a president can lawfully issue pardons for the purpose of interfering with an investigation into his own alleged wrongdoing, the lawyers who are in fact advising Trump believe that he has the absolute power to pardon anyone for any reason.

That suggests that something else must be holding Trump back. The most likely explanation is that Trump believes that he would pay a political price for pardoning Manafort, Trump Jr., and other loyalists. He could be wrong in that belief, but given how shameless Trump typically is, the fact that only his self-restraint is holding him back from issuing pre-emptive pardons suggests that there is a sound basis for his political judgment in this instance. Thus, there is at least one reason why the Manafort verdict will matter: If Manafort is found guilty, then in order to reward his silence, Trump will actually have to issue a pardon and bear at least some modest political cost.

7 comments:

Shag from Brookline said...

While the Manafort indictments do not involve the Russia investigation, there is the matter of what role Manafort may have played in the 2016 GOP Convention to change its plank on Russia's role in the Ukraine. Working GOP conventions was one of Manafort's political strengths. Such a role might be a connecting dot to the Trump Tower meeting that Don, Jr., Kusher and Manafort had with the Russia lawyer to get dirt on Hillary.

As to why Trump has not exercised the pardon power with respect to the Russia probe, I'm reminded of why Nixon didn't destroy the Oval Office tapes. Trump may be unsure of the impact of such pardons on him personally and financially with his brand. Charles M. Blow's NYTimes column today "Nixon, Clinton and Trump, The more Trump is cornered, the more he mirrors Richard Nixon" might provide some clues. Eventually the truth will emerge about any collusion of the Trump campaign with Russia in the 2016 election as well as claims of obstruction of justice and possible conspiracies post-Trump's inauguration. History might brand Trump as a Benedict Arnold.

Paul Scott said...

Maybe. I think it may go something like this. Try to beat this. Beating it helps my "which hunt" narrative. If you fail, then I'll pardon.

It may not be that he thinks he'll pay a price for pardoning, but that he gets a win from a not guilty verdict.

Joe said...

I think the verdict is important since it is the first big moment and if he is found "not guilty" or if there is a hung jury, there very well might be a big push (including from "serious people") to say that it's time to start to think about winding stuff down &/or maybe nothing big will be found etc. (e.g., someone referenced a person on MSNBC saying maybe nothing will be found against Trump). It also would give more cover, ala your discussion, to Trump. The differences between the two trials etc. will just be treated like nuances.

Ian said...

What would happen if Trump doesn't pardon Manafort but commutes his sentence to time served and waives whatever fines the court imposes? All the time screaming "witch hunt" and that he's doing this b/c the investigation was partisan. I think his supporters would be ok with that and it plays into his narrative against Mueller.

Shag from Brookline said...

Query: Can Trump waive Manafort's potential civil federal income tax liabilities, including penalties,for civil tax fraud under Ian's commutation/waiver of fines scenario?

Joe said...

Manafort found guilty of 5 tax fraud charges, 1 charge of hiding foreign bank accounts, and two counts of bank fraud. Hung on 10/mistrial there.

Shag from Brookline said...

Judge Ellis' polling of jurors on the mistrial counts may be telling, particularly in analyzing Rick Gates testimony as well as the fact that certain banks' officials may have been (to put it kindly) "negligent."