Below is my column in The Hill newspaper on the effort in New York to change constitutional protections against double jeopardy to allow prosecutors to charge former Trump campaign chair Paul Manafort with state offenses. The effort is to guarantee that Manafort goes to jail if President Donald Trump gives him a pardon. The sight of politicians campaigning on the pledge to jail Manafort raises serious concerns of this highly selective effort. Moreover, the effort to change New York constitutional protection to get Manafort could give Trump precisely the basis for a pardon that Democrats are preemptively trying to deter. I have repeatedly said that a pardon for Manafort would be inexcusable. He has more than earned any sentence that a court chooses to give him and the New York effort should not change that. However, if the Democrats tailor their constitutional protections to get Manafort, they are giving Trump the ability to say that he is responding to selective targeting of Manafort to guarantee that he is not punished twice for the same underlying conduct. More importantly, New York should not sacrifice its commendable protection against double jeopardy to get Manafort. He is not worth it.
Here is the column:
As Paul Manafort awaits sentencing next month, his viable options seem to be dwindling down to a presidential pardon. While the sentencing memorandum of special counsel Robert Mueller has not been made public, there is little question that Manafort is looking at a likely terminal period of incarceration after his cooperating agreement was tossed out for allegedly withholding information. His lawyers insist that Manafort, who will soon turn 70, is in failing health and cannot do a long stretch. Judge Amy Berman Jackson is unlikely to be particularly sympathetic, much like the judge who handed down a lengthy sentence to an older defendant who objected, “Judge, I am too old to serve all of that time.” The judge responded dryly, “I understand, just do the best you can.”
The best that Manafort can do seems to be getting worse by the day. New York politicians and prosecutors have been pursuing state charges to blunt any possible presidential pardon of the onetime Trump campaign chairman. Various accounts describe state prosecutors, who previously stepped aside so that Mueller could investigate unimpeded, as laying the groundwork for new crimes that would avoid constitutional barriers but still send Manafort behind bars for the rest of his life. The effort to pursue Manafort is wildly popular in New York and widely celebrated in the media as clever “insurance policy” fashioned by Democratic Manhattan District Attorney Cyrus Vance Jr. and New York Attorney General Letitia James.
The public discussion of looking for state charges against Manafort as insurance against a pardon by President Trump is becoming increasingly troubling and untoward. State prosecutors have campaigned for office on the promise to find ways to guarantee incarceration for one person. To do so, they are willing to remove state constitutional protections for all New Yorkers. This is much like removing all of the life preservers from an ocean liner to guarantee that one single passenger does not survive a sinking.
As a vocal critic of Manafort, I am not very easily inspired to care about his welfare. Manafort is one of the most corrupt figures in Washington, and he richly deserves a long prison sentence. Yet, there is something too tailored, too personal about the efforts by prosecutors to guarantee that he spends much of the rest of his life behind bars. For more than a year, New York politicians have been pledging to voters to move aside constitutional protections to allow Manafort to be charged with state crimes that are based on the same underlying transactions or activities.
The problem could be the bar on double jeopardy, the guarantee that people are not punished twice for the same conduct. Such guarantees originated in ancient Rome and were made part of our Constitution under the Fifth Amendment unless, it now seems, you are Paul Manafort. While civil libertarians have long warned of the erosion of this guarantee, New York has been the gold standard on this with a more protective provision barring redundant or related state prosecutions after federal convictions.
Then Donald Trump became president. Manafort was found guilty on eight counts related to financial fraud by a federal jury in Virginia then pleaded guilty to separate charges in Washington. During this time, speculation has been rampant that Trump may pardon Manafort, particularly after a series of sympathetic tweets. As a result, New York legislators called for clearing away rights that might be used by Manafort to protect himself.
James actually campaigned for office on that issue. That is right, a state attorney general was elected by campaigning to remove constitutional protections from all citizens. James was not alone here. Former Attorney General Eric Schneiderman, before being forced out of office over sexual assault allegations, pushed the legislature to change the constitution and his successor, Barbara Underwood, then picked up the popular liberal cause to thwart the president by reducing double jeopardy protections.
Suddenly the double jeopardy clause was considered a “loophole” being used, to quote Underwood, to “thwart the cause of justice, rather than advance it.” Underwood told the New York legislature that it was urgent to change the state constitution in order to blunt the impact of a “politically expedient pardon.” While it is difficult to prove selective prosecution, Manafort seems to be in a criminal class of his own. Not only are these public pledges to go after Manafort building a possible defense for him, they also may be building a case for a presidential pardon from Trump. Manafort remains a tough candidate for pardon given his extensive criminal conduct and millions of ill-gotten gains. However, if Democrats are campaigning on changing the law to get at Manafort, Trump could cry foul and use the selective effort as a reason to pardon or commute on the federal offenses.
Manafort must feel like this is the start of deer hunting season, and he is the only deer allowed to be shot. The problem is not just the selectivity of these efforts but the fact that the other deer seem to have immunity by popular demand. Take Michael Cohen, former Trump attorney who has become a key witness against the president. There have been no similar calls to find state charges against Cohen to guarantee a long sentence.
While Manafort sits in jail awaiting a potentially long prison sentence, Cohen conversely secured another delay in serving a ridiculously short prison sentence for fraud and other crimes that netted him millions. Federal prosecutors in the Southern District of New York had opposed leniency for Cohen and said he was a liar who withheld evidence. Judge William Pauley III described his history as a “veritable smorgasbord of fraudulent conduct” but sentenced Cohen to just three years in prison.
Afterward, more allegations surfaced involving Cohen selling access and ripping off both the Trump organization and its contractors. He allegedly paid a firm to rig two polls in favor of candidate Trump and to create a Twitter account called Women for Cohen, to promote himself as a “sex symbol.” Cohen reportedly was given $50,000 by the Trump organization for that work but then gave the business, Red Finch Solutions, only some $12,000 in cash inside a Walmart bag along with a boxing glove from a Brazilian mixed martial arts fighter. Cohen has since denied that account.
Nevertheless, Cohen has now found favor with many Democrats. Not only have people inexplicably given him hundreds of thousands of dollars in donations to testify against Trump, but Democratic lawmakers also seem uninterested in what information he allegedly withheld from New York prosecutors or his other alleged criminal conduct. It is certainly true that Trump is more likely to pardon Hillary Clinton than Cohen at this point. However, that is the problem. The effort against Manafort is being driven by the prospect of clemency as opposed to the actual underlying crimes. Indeed, there is a debate about what crimes might be best brought to bypass constitutional challenges and cement the harshest sentences.
An alternative is to leave the constitutional protections alone. Manafort can be prosecuted for any evasion of state tax laws under New York law and existing precedent, but Vance and other prosecutors should show also equal vigor in pursuing any such crimes by Cohen. As for a possible pardon or commutation of Manafort, it still remains unclear whether the president would take such clearly unwarranted and inappropriate action.
What is clear, however, is that New York should not reduce protections for everyone in the state just to punish one man. Manafort is unlikely to finish even a modest sentence, given his declining physical condition. He is not worth undermining core due process and constitutional rights to add a few more years in prison as an insurance policy. There is more blind rage than blind justice behind the effort to amend the New York constitution.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.