Below is my column in The Hill newspaper on the New York charges brought against Paul Manafort. As I have previously written, double jeopardy protections have been watered down by the Supreme Court through the years. However, this is also a matter of state constitutional protections. Regardless of the outcome, there are troubling concerns raised by this filing. Many New Yorkers often see themselves as civil libertarians, but such concerns seem to be dismissed when the target is an unpopular individual like Manafort.
The New York Constitution has a prohibition on double jeopardy, which is further defined under New York’s Criminal Procedure Law 40.20 which states, “A person may not be twice prosecuted for the same offense.” Section 40.30 sweeps broadly to include any case “filed in a court of this state or of any jurisdiction within the United States, and when the action either: (a) Terminates in a conviction upon a plea of guilty; or (b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.” That would include not just federal counts but those that were subject to both Manafort’s convictions and guilty pleas.
Here is the column:
This month, the greatest off Broadway production should be titled “The Prosecutors,” starring Manhattan District Attorney Cyrus Vance Jr. and New York Attorney General Letitia James. As in another dramatic comedy, “The Producers,” the state case against former Donald Trump campaign manager Paul Manafort seems designed to fail, leaving its prosecutors with the convenient windfall of public support and none of the burden.
The New York state charges that Vance filed against Manafort appear to run afoul of state and federal protections against double jeopardy, or being prosecuted twice for the same underlying conduct. The timing of the charges alone seemed right out of the playbook of “The Producers” character Max Bialystock, the corrupt Broadway figure who insisted that in New York the rule is “if you got it, flaunt it, flaunt it.” Accordingly, Vance waited just minutes after the Manafort sentencing to hit him with state charges, guaranteeing the maximum exposure and credit for his effort.
The problem is that the case appears not only constitutionally flawed but ethically challenged, coming right out of the Max Bialystock School of Prosecution. I have long been one of the longest and loudest critics of Manafort. He is a corrupt and despicable person who deserves the two sentences that could keep him in jail for the rest of his life. However, it is not his crimes but his association with President Trump that has driven the manic effort to charge him in New York. In this current age of rage over Trump, Manafort is a readily available surrogate for selective prosecution.
For more than a year, leading New York state prosecutors have openly pledged to get Manafort on some undefined crime to prevent Trump from releasing him from jail on a presidential pardon. They promised to find crimes that could be alleged in the state system, which would not at all be impacted by a presidential pardon. To do that, they only had to strip all citizens of certain rights. Former New York Attorney General Eric Schneiderman pushed the legislature to rescind a core protection against double jeopardy to allow him to charge Manafort on the same criminal conduct that he would later be sentenced for in federal court.
New York is one of those states with its own protections against such abusive and duplicative charges. When Schneiderman was forced out of office for alleged sexual assault, his cause was picked up by his successor, Barbara Underwood, who has deemed the constitutional protection a loophole that would “thwart the cause of justice rather than advance it.” You heard that right, a constitutional protection would “thwart justice” because it could be used by an unpopular individual such as Manafort.
These calls were then picked up by Vance and James, who promised to get Manafort at any cost. James actually campaigned for and was elected to the attorney general post in part on her effort to reduce constitutional protections for everyone in order to get one man. Now Vance has fulfilled his pledge and charged Manafort in New York. It is a striking contrast here that Scheiderman was allowed to walk on sexual assault charges because prosecutors determined that some punching and slapping without any consent is allowed for “sexual gratification.” Yet, Manafort was charged on essentially the same alleged fraudulent conduct as in his federal case.
When I read the complaint against Manafort, I was struck not only by the overlap but the overkill. I had never seen the Manhattan district attorney bring such a case, but I could be mistaken. After all, Vance proclaimed he had a sacred duty to protect the “integrity of our residential mortgage market.” That was news in itself. The core allegation was that Manafort lied about a condo being used as a home by his family, as opposed to a rental property. If that type of misrepresentation were truly prosecuted with vigor, New York would be a ghost town. In the land of rent controlled apartments, fraudulent practices are the norm. Indeed, Aaron Carr of the Housing Rights Initiative, a nonprofit housing watchdog group, declared recently that in New York “rent fraud is like finding rain in a rain storm.”
Given the absence of past serious criminal prosecutions, I reached out to the office of Vance with a simple request: Could he show me other cases like this where he prosecuted people like Manafort to uphold the integrity of the residential mortgage market? After repeated attempts, the office declined to respond. I then searched New York cases on Lexis Nexis, which contains all published opinions, and found only a handful of opinions on mortgage fraud in New York and nothing on point from Vance. While there are just the published opinions, there is no evidence of his focus on misrepresentation of rental properties before the Trump era.
What emerges is a picture that should trouble everyone who values blind and fair justice. Vance took the same underlying conduct from the federal cases to recharge Manafort then used the same conduct over and over to pile up 16 counts for mortgage fraud and falsifying business records. Most of the counts are built around defrauding Citizens Bank, leaving just four or five more charges pertaining to his involvement with a second bank. It is unclear whether “Lender #1” in many of the New York state charges is Citizens Bank, but it sure looks like those state charges are related to the Citizens Bank loan with “Lender #1” featured in the federal prosecution.
Manafort was convicted of defrauding the bank by securing a $3.4 million loan for his New York condo by saying that his family was living in it rather than renting it. However, James and others never succeeded in stripping the New York state constitution of the core protections related to double jeopardy. Vance charged him anyway, apparently following the Bialystock script by making a splashy premiere and satisfying voters who want to see this one individual prosecuted in the most selective and grandiose way.
Equally glaring is the absence of prosecuting Michael Cohen. Vance does not seem concerned over the “integrity” of the markets for the long list of criminal acts committed by Cohen in New York. Indeed, the Cohen case was transferred to New York because they primarily concerned that city and its markets. Yet, Cohen now represents a direct threat to Trump, so he is untouchable to prosecutors. Although Cohen received a ridiculously low sentence, neither Vance nor James have any expressed interest in bringing state charges for his fraud related to banks and taxi medallions. That would not be nearly as popular a production. Ironically, Cohen has criminal allegations that would not be barred under double jeopardy.
The greatest danger is not that Vance will fail on constitutional grounds but that he may succeed. If Vance can single out an unpopular individual and convict him again on the same crimes, he would eviscerate the core protections in New York. Worse, Vance and James fed a public appetite for selective state prosecution that will only become insatiable if successful.
The best that can be said here is that Vance may view this is a just a stunt unlikely to get to trial. However, it is a dangerous game, as shown by the Bialystock character that was ruined when his production of “Springtime for Hitler” became a hit. It left Bialystock with a lament many in New York soon could be voicing, “How could this happen? I was so careful. I picked the wrong play, the wrong director, the wrong cast. Where did I go right?”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.