Paul Manafort, the former campaign chairman for President Donald Trump, was convicted of eight counts of tax fraud and bank fraud by a federal jury in Virginia earlier Tuesday.
But it’s far from over for Manafort.
Unlike a typical defendant, Manafort still has several options available to him. His next move, and Trump’s response to it, could have explosive impact on the larger special counsel investigation and on the future of Trump’s presidency.
Next up for Manafort is sentencing. While all eight counts of conviction combined carry a maximum of 80 years in prison, he isn’t going to be locked up until 2098. Federal sentences are determined in part through a calculation based on the defendant’s prior criminal history (for Manafort, none) and the seriousness of the offense (for Manafort, very).
In determining the seriousness of the offense, Judge T.S. Ellis will consider the amount of the fraud, the sophistication of the scheme, and Manafort’s role as a leader. All things considered, Manafort likely faces a sentence of around eight to twelve years in prison. For a 69-year-old man, that could mean life behind bars.
And Manafort isn’t close to done. Mueller could choose to re-try Manafort on the ten counts on which the Virginia jury hung. That seems unlikely; Manafort’s sentence is hardly affected at all by the remaining hung counts, and Mueller’s team got all it needed from the eight counts of conviction.
Beyond that, Manafort goes on trial again next month in Washington, D.C. on an impressively well-rounded array of white-collar federal crimes. The indictment charges that Manafort worked as an unregistered foreign lobbyist in the United States, laundered millions of dollars through foreign bank accounts, lied to the Department of Justice, and—after he was charged with all of this—tried to tamper with witnesses, which got him thrown in jail pending trial in Virginia. Even if Manafort is acquitted in Washington, D.C. on all counts, it would have zero effect on the sentence he will receive on his conviction in Virginia. And if he gets convicted again in the second trial, his sentence could increase.
In short, Manafort now has been convicted in Virginia and he is looking at a scary-long sentence for a man of his age. The upcoming D.C. trial can only make that worse for him. So what options does he have left? And what are Trump’s potential responses to each course of action?
First, Manafort could just take his sentence and go to jail for the next decade or so. Sure, he will appeal (everybody does after trial), but the likelihood of the jury’s verdict being overturned is slim. Manafort also will ask the judge for a lenient sentence, but that request seems unlikely to succeed given the strength of the prosecution’s evidence and the extent of Manafort’s crimes.
Yet, it seems exceedingly unlikely that Manafort will simply take what’s coming to him. Nobody ever wants to be in prison, never mind potentially to die behind bars. Sometimes career criminals accept the possibility that their conduct will land them in prison for a long time. In the mafia, they’re called “stand-up guys,” and we’ve seen many defendants accept defeat and go off to serve their time. Manafort, sleazy as he might be, is not a hardened criminal, and doesn’t seem likely to grit his teeth and accept his fate in prison.
That leaves Manafort with two potential outs after his Virginia trial.
First, he can try to cooperate with special counsel Robert Mueller. It would be unusual but not entirely unheard of for a defendant to begin cooperating after trial. Defendants typically cooperate before trial because it is mutually advantageous for the prosecution and the defendant to get together as early as possible. Nonetheless, it is possible for a defendant to cooperate after a trial conviction but before sentencing. A sentence like the one Manafort now faces certainly can change a person’s perspective and willingness to flip. Of course, the prosecutor has to be interested as well. Mueller may decide to walk away, thinking: Manafort missed his chance to cooperate long ago, he challenged our case in court, we proved his guilt, and now he gets what’s coming to him.
Or Mueller could decide that Manafort might have information that is valuable enough to justify a post-trial deal. Manafort likely won’t get the same sentencing benefit he would have gotten if he had started cooperating before trial (as his former business partner and co-defendant Rick Gates did), but he still stands to do better than if he never cooperates at all. Manafort seems to be the rare defendant who could have information that is valuable enough to interest Mueller in post-trial cooperation.
We once tried and convicted a high-ranking member of the mafia on a murder charge, which resulted in a life sentence. We believed that that mobster had extraordinarily valuable information on other bosses and several unsolved murders. So we sent an FBI agent into prison to ask whether the gangster might consider cooperating. This defendant was an old-school, hardened guy, so he politely told the FBI agent he’d prefer to die in jail quietly rather than cooperate. The point is that, even though we had convicted this mobster at trial, we still wanted to cooperate him because we believed he had unique, dynamic information.
There is one question about the cooperation option for Manafort: why hasn’t he done it yet? Did Manafort think he could beat this case and the Washington D.C. case, or at least that he could roll the dice before going down the road of cooperation? Or does Manafort fear retaliation if he does cooperate from the Russian-backed oligarchs he once profited from? Cooperation is usually an all-or nothing proposition. A defendant can’t pick and choose which people he gives information about. So cooperation for Manafort likely would require him to divulge any incriminating information he knows about Putin-backed oligarchs, which may seem like a scary proposition.
Manafort’s second potential out would be a presidential pardon. This would, of course, be the optimal result for Manafort. His conviction and sentence, and any pending charges, would be wiped away. He would not go to prison; in fact, he would be released from his current incarceration, which he earned by trying to tamper with witnesses while on bail. Most importantly, a pardon would greatly reduce any incentive Manafort otherwise might have to cooperate with Mueller.
(A pardon may not completely eliminate that incentive because it remains an open question whether state charges could be brought against Manafort even after a presidential pardon; plus Manafort still faces the D.C. trial in September, which may or may not be precluded by a pardon).
While legal scholars have raised the important question of whether a pardon by Trump under these circumstances would be legitimate, there currently is no known legal mechanism to un-pardon somebody because, of course, courts have never been asked to rule on that question.
All of which raises a crucial question: would a Trump pardon of Manafort constitute obstruction of justice? Taken along with Trump’s other bursts of explicitly obstructive conduct—firing Comey and telling Lester Holt he did it because of Russia, asking Comey to go easy on Michael Flynn, trying to berate Jeff Sessions into resigning so a new Attorney General can step in and fire Rod Rosenstein and/or Mueller—it is eminently clear that Trump’s real goal in issuing a pardon would be to silence Manafort. To that end, Trump faces two competing concerns. He surely wants to prevent Manafort from cooperating with Mueller, but he also likely wants to use the pardon only as a last resort because of the legal and political risks.
To mitigate the legal risk, Trump already appears to be laying a foundation to justify a Manafort pardon as something other than an obstructive act.
When the federal judge in Washington, D.C. sent Manafort to prison pending trial in June, Trump tweeted: “Wow, what a tough sentence for Paul Manafort… Very unfair!” (Note: it wasn’t a sentence, it was a revocation of bail). In another tweet, Trump drew a bizarre comparison between Manafort and famed gangster Al Capone, seemingly to argue that Manafort has been treated unfairly. Most egregiously, just last week, Trump—while the Manafort jury was in the midst of deliberations—told reporters that Manafort is a “good person” and that his trial is “a very sad day for our country.”
If an attorney in the case had made the same public statements during jury deliberations, the judge likely would have imposed sanctions for breaching ethics rules prohibiting public statements outside the courtroom that might influence a jury. (In fact, Manafort’s attorney—opportunistically, and on the razor’s edge of his own misconduct—embraced the president’s remarks, smugly telling the media, “It’s great to have the support of the president of the United States”). What’s the point of these statements by Trump? They allow him at least to claim that he did not pardon Manafort to prevent cooperation or to obstruct justice, but rather to remedy a perceived injustice.
Trump may be sending signals to Manafort through these tweets, by “dangling” pardons through his then-lawyer, John Dowd, and by issuing a series of pardons in other high-profile cases to Scooter Libby, Joe Arpaio and others. By these actions, Trump seems to be saying, “Paul, I’m going to take care of you—but first you just need to keep your mouth shut and let things cool down a little, at least until after midterms.”
Of course, if such an agreement were spoken out loud—if Trump and Manafort agreed that Manafort would be rewarded with a pardon if he kept quiet—that almost certainly would be obstruction of justice. Even in the absence of an explicit agreement, a pardon taken together with other evidence already in the public record might prove Trump’s larger intent to obstruct the Russia investigation as a whole.
Trump, then, faces a difficult and crucial choice. He can grant a pardon to Manafort, which carries serious risks, both legally and politically. Or, if Trump doesn’t issue a pardon, Manafort might well flip, which could hand Mueller crucial new evidence of wrongdoing by the president and his closest advisors. The questions now are: Which way does the president go? Which way does Manafort go? And, importantly, who blinks first?