For those of us following the testimony in the case it was astonishing that anyone had any reasonable doubt of guilt. The fact that Manafort never took the stand and never called a single witness reeked of guilt. His lawyer knew that putting anyone on the stand who had knowledge of Manafort’s activities would only make matters worse for Manafort.
There was suspicion that if Manafort was found guilty, that Trump would pardon him. Now that he has been found guilty, inspite of advice to the contrary, Trump has signaled that he is planning to pardon Manafort. Trump has described Manafort as a “victim” and a “brave man.”
The indication is that “Trump is setting it up. He’s referring to the investigation as a ‘witch hunt’. White House officials expect that the pardon is coming.
When Manafort was indicted, many observers believed he would save himself by flipping against Trump and cooperating with special counsel Robert Mueller’s Russia probe. But that never happened. Instead, Manafort decided to plead “not guilty,” even though the evidence against him was overwhelming and he was facing serious prison time if convicted.
One explanation for Manafort’s decision is that he believed a presidential pardon awaited him on the other side of the trial. This is consistent with a March report from the New York Timesthat a lawyer for Trump discussed the possibility of pardoning Manafort with his lawyer in 2017.
Because the President’s power of pardon is limited to federal crimes, it was a relief that Mueller has been working with New York Attorney General Eric Schneiderman on his investigation into Paul Manafort and his financial transactions. The thought was that Trump’s ability to pardon Manafort for federal crimes wouldn’t keep Manafort out of jail because he could be charged with violation of state crimes for the same conduct.
The issue that we had not considered is the legal theory of DOUBLE JEOPARDY! The doctrine of dual sovereignty allows the federal and state governments to prosecute the same crimes. The problem is that many states broaden double jeopardy protections to prevent the bringing of state charges after a federal prosecution. New York, California, Virginia and Pennsylvania have such a rule. But because of some likely combination of prosecutorial skill and luck, Manafort still faces prosecutions in those states, plus perhaps Illinois and others.
Let’s first focus on just the crimes for which Manafort has already been tried. This week, he was convicted of five counts of tax fraud, two counts of bank fraud, and one count of failing to report a foreign bank account. In New York and Virginia, where he held residences, double jeopardy laws prevent him from being charged for the exact same crimes. But state tax fraud is a distinct crime, one that he has also likely committed. When one fraudulently hides income from the federal government, it is likely that the same cover up has occurred in reporting state income tax.
The Virginia tax law further covers fraud. Thus it seems Manafort is still exposed for violation of Virginia tax laws. Further, according to Virginia rules of evidence, past convictions can be admissible: “Such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan.” So in a Virginia trial against Manafort for tax fraud, these many federal convictions would be admissible evidence. Manafort faces the same implications under New York law. Moreover, in 2011, New York fixed the rule to allow state tax fraud prosecutions to follow a federal prosecution. Now Manafort could face New York tax fraud charges, even after a federal pardon.
Manafort was also tried on bank fraud relating to New York and California banks. Both states have double jeopardy statutes that seem to create a potential pardon protection. But there was a hung jury on the conspiracy bank fraud charge for the California bank. California’s double jeopardy law states, “No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted.” That obviously excludes mistrials. So California could prosecute the separate act of conspiracy bank fraud because Manafort has never been prosecuted and convicted or acquitted of that charge.
There was also a hung jury on the four bank fraud charges for his dealings with the Federal Savings Bank in Illinois. Illinois double jeopardy law also allows a second state prosecution after a mistrial. It is ironic that the one holdout juror who caused a mistrial on some charges opened up Manafort to state retrials.
Ultimately, a Trump pardon wouldn’t benefit Manafort in any concrete sense, but it would build a stronger case for impeachment and removal of Trump. Such a pardon would only add proof of Trump’s obstruction, providing additional evidence of criminal corrupt intent.
Thus if Trump pardons Manafort, he will only prove how foolish he is. Manafort will still be tried and likely spend the rest of his life in prison, and Mueller’s case against Trump for obstruction just gets better!