Below is my column in The Hill newspaper on the implications of the conviction of Paul Manafort in Alexandria Virginia. Notably, if President Donald Trump is inclined to pardon Manafort, he may want to do it before the approaching start of the D.C. trial. The counts in the new trial are a true parade of horribles for Manafort and his image will hardly improve by the end. He will face details over his work for a blood-soaked authoritarian figure who fled into exile to Moscow. It will be much more difficult to portray Manafort as a victim and a “good man” after that evidence is aired in open court.
I previously warned that Manafort’s obvious hung jury strategy was likely to fail. He is now left with only his pardon strategy, though his lawyer ominously warned that he is considering “all of his options.”
The prosecutors from the Justice Department office of the special counsel left the courthouse in Alexandria on Tuesday with their first major conviction, given the eight guilty verdicts against Paul Manafort for bank and tax fraud out of the 18 counts he faced. For many observers, however, a reasonable question can be raised as to what all of this means.
This obviously is not the set of crimes that special counsel Robert Mueller was appointed to pursue. As noted by the openly skeptical trial judge in this case, Mueller clearly was pursuing President Trump and not these particular crimes. The question now is whether these convictions will further concentrate Manafort on flipping against Trump. If not, Mueller could be left looking like the guy who showed up at a bass fishing competition with a trophy deer head. It may be an impressive eight count buck of a defendant, but still is not the game he was supposed to catch.
Just as Manafort has some evaluations to make, so does Mueller, who has spent millions of dollars in pursuit of crimes outside the original mandate of misconduct related to the 2016 election and its aftermath. The question here is not why Manafort was prosecuted. He deserved to be prosecuted, and he now is rightfully labeled a felon. The question rather is who should have prosecuted Manafort and why.
There is an incoherent element to the case brought by the special counsel. Mueller transferred the investigation of former Trump lawyer Michael Cohen to the Southern District of New York despite those alleged crimes being related in part to the 2016 election. (In a surprise deal with prosecutors, Cohen pleaded guilty earlier in the day to eight counts of bank fraud, tax fraud and campaign finance violations). Yet, Mueller retained an array of financial crimes by Manafort that are far removed from the election. The only reason for this was to obtain leverage.
Mueller now has that leverage, however, he cannot offer what Manafort most wants, which is a walkaway. The benefit of the convictions is that Manafort is looking at a practical life sentence if sent to jail for a decade or more. However, Mueller is already under fire by a cooperating witness, George Papadopoulos, and his wife for what they view as unfair dealing, including a recent signal from the special counsel to the court that a six month sentence would be appropriate. Notably, attorney Alex van der Zwaan pleaded guilty to making false statements without cooperating with Mueller and received a 60 day sentence. The “deal” for Papadopoulos seems less than a bargain when compared to uncooperating witnesses, even with the differences in the context of their false statements.
It is highly unlikely that cooperation from Manafort would spare him from prison time in light of the sentences meted out to other defendants. Trump, however, could give Manafort precisely that benefit with a presidential pardon. Indeed, unlike Cohen, who could easily face state charges, the legal jeopardy for Manafort is more solidly based in federal claims that can be fully addressed in a pardon. Manafort thus far has been “all in” on that strategy. He has remained silent and loyal to Trump.
In contrast, Trump has been hit by a number of former close aides like Omarosa Manigault Newman and Cohen, who have actively sought to use their inside information against him. In a strange way, Omarosa and Cohen have improved the chances of a pardon for Manafort. Not only would such a pardon remove the leverage by Mueller from these convictions, it also would punish people like Cohen and former national security adviser Michael Flynn in seeking protection under Mueller.
While Manafort has openly preserved his position for a pardon, Trump has laid the foundation for it. As the likelihood of a conviction grew in Alexandria, Trump stepped up his public comments denouncing the prosecution and affirming the good character of Manafort, declaring, “I think it’s a sad day for our country.” He added, “He happens to be a very good person. I think it’s very sad what they have done to Paul Manafort.”
The “happy day” sought by Manafort is unlikely to be found in court or the office of the special counsel. He knows it only can come from the man who could brush aside all of these charges with the stroke of a pen. As for Trump, he could use a pardon to highlight the disconnect between the original mandate and the actual prosecutions that Mueller is pursuing. Trump could pardon Manafort for all crimes unrelated to the campaign or its aftermath, allowing Mueller to prosecute Manafort and anyone else for crimes tied to Russian interference with the 2016 election. Trump could then claim that he is not obstructing justice but rather doing what he has long demanded from Attorney General Jeff Sessions, which is to keep the special counsel focused on the primary purpose of the investigation and to finish that work without continued delays or more distractions.
Such a pardon by Trump would be a mistake. Indeed, these were not the crimes that Mueller was supposed to pursue, but that does not change the fact that Manafort remains a criminal. The Alexandria trial showcased how Manafort was becoming increasingly desperate over his declining income and opulent lifestyle. The Trump campaign may have been viewed as a way out of his financial and legal problems. A pardon would reward Manafort for such a calculated strategy. He could walk away from an array of financial crimes simply by using his personal connection to Trump.
Conventional wisdom holds that this prosecution was a clever play for leverage over a key potential witness. In the end, however, this move on Manafort could prove to be a serious miscalculation. By not transferring the financial crimes to the local district attorney, Mueller gave Manafort a better chance for a pardon by making himself part of the calculation.
If Mueller had transferred the case, he still would have had the leverage from any conviction but would not have given Trump the rationale for issuing a pardon as a way of confirming what Trump portrays as a runaway federal investigation. In such a scenario, Manafort ultimately would emerge as the only true winner, not because of his innocence, but because of his associations. If that windfall scenario plays out for Manafort, the man he may want to thank is not Trump but Mueller.