The prospect of former Trump campaign chairman Paul Manafort cutting a plea deal with special counsel Robert Mueller’s office to avoid a second criminal trial set to open next week doesn’t concern President Donald Trump or his legal team, Trump lawyer Rudy Giuliani told POLITICO.
“We can see a reason why he might want to do that. What’s the need for another trial?” Giuliani said in an interview late Wednesday. “They’ve got enough to put him in jail. His lawyer is going to argue they shouldn’t. The judge should decide this. Not Mueller. I think it’s pretty clear if they were going to get anything from him they’d have gotten it already.
“What’s the point of further harassing him?”
Giuliani said Trump and his attorneys are unconcerned about a potential plea agreement because they’re convinced Manafort has nothing damaging to say about the president.
“From our perspective we want him to do the right thing for himself,” the former New York mayor and U.S. attorney said. “There’s no fear that Paul Manafort would cooperate against the president because there’s nothing to cooperate about and we long ago evaluated him as an honorable man.”
“Manafort might just be doing one last solid for Trump” — Jed Shugerman
A plea deal that would scuttle Manafort’s upcoming trial could be mutually advantageous for Manafort and Trump, lawyers close to the case say.
Trump could avoid a distracting, high-profile political spectacle just weeks before a midterm election where GOP losses could severely crimp his power and might lead to his impeachment. Manafort could save hundreds of thousands of dollars in legal bills stemming from another showdown with Mueller, while still preserving the possibility of a presidential pardon.
“It’s a big win for Trump to get this trial off the calendar in late September or early October without cooperation,” Fordham law professor Jed Shugerman said. “Manafort might just be doing one last solid for Trump.”
Late last month, a trial for Manafort in Virginia on tax fraud and bank fraud charges ended with guilty verdicts on eight counts and a hung jury (split 11-1 for conviction) on 10 other counts.
Jury selection in another case brought by Mueller against Manafort on charges of failing to register as a foreign agent, money laundering and witness tampering is set to get underway Monday. Opening arguments are expected to take place a week later.
However, on Tuesday, the judge overseeing the D.C. trial fueled speculation about a plea deal by abruptly postponing until Friday what was expected to be the final pre-trial hearing in the case. No explanation was given. The Washington Post and ABC News said plea talks were underway, although details of the discussions are unknown and lawyers involved declined to comment. (A spokesman for Manafort also declined to comment.)
Still, a series of sticking points and snags loom that could thwart or complicate any effort to head off Manafort’s looming trial.
At any time, Trump could wipe out Manafort’s earlier convictions and eliminate the need for the D.C. trial or a plea deal by pardoning Manafort. The president has sounded open to the idea, expressing deep sympathy for his former campaign chief.
“I feel very badly for Paul Manafort and his wonderful family,” Trump tweeted after the verdicts last month. “’Justice’ took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike Michael Cohen, he refused to ‘break’ – make up stories in order to get a ‘deal.’ Such respect for a brave man!”
Several aides and advisers have told POLITICO they believe Trump will grant clemency to Manafort, but Giuliani has said the president has agreed to put off any consideration of the issue until the Mueller probe concludes.
Asked Wednesday whether a plea deal would close the door on Manafort getting a Trump pardon, Giuliani replied, “No, it doesn’t. I can’t speak for his exercising discretion on a pardon. But I don’t see why it would foreclose it, no.”
“Every trial is to some extent a crapshoot” — Former federal prosecutor Randall Eliason
Giuliani also confirmed that Trump’s lawyers and Manafort’s have been in regular contact and that they are part of a joint defense agreement that allows confidential information sharing.
“All during the investigation we have an open communication with them,” he said. “Defense lawyers talk to each other all the time where as long as our clients authorize it therefore we have a better idea of what’s going to happen. That’s very common.”
Giuliani confirmed he spoke with Manafort’s lead defense lawyer Kevin Downing shortly before and after the verdicts were returned in the Virginia trial, but the former mayor wouldn’t say what he discusses with the Manafort team. “It’d all be attorney-client privilege not just from our point of view but from theirs,” he said.
A plea deal makes the most sense for Manafort if it serves as a gateway to a pardon from Trump, but the president made clear in a series of recent statements that his admiration for his former campaign chairman is driven by the fact that he has resisted efforts to “flip” him — slang for turning him into a witness, in this instance against his ex-boss.
“One of the reasons I respect Paul Manafort so much is he went through that trial — you know they make up stories. People make up stories. This whole thing about flipping, they call it, I know all about flipping,” Trump told “Fox and Friends” last month. “It’s called flipping and it almost ought to be illegal. … For 30, 40 years I’ve been watching flippers. Everything’s wonderful and then they get 10 years in jail and they — they flip on whoever the next highest one is, or as high as you can go.”
If Manafort hopes for a pardon, it seems it would be poison for him to take any deal that seems like a capitulation to Mueller or a betrayal of Trump. Usually, plea deals require a defendant to share information useful to prosecutors, but they will typically give some concessions to someone who won’t cooperate but is willing to plead guilty to some of the charges they face.
“Even if there’s not a cooperation agreement, it’s always to the government’s benefit to negotiate a plea to avoid the time and resources necessary to do a trial and to get the certainty of a conviction. Every trial is to some extent a crapshoot,” said former federal prosecutor Randall Eliason. “I expect they would consider letting him plead guilty to some counts in exchange for dropping some charges.”
Manafort’s best opportunities to cut a deal likely came and went months ago, when the investigation was in an earlier stage and before the Virginia trial went forward.
Notably, Manafort’s business partner and co-defendant Rick Gates decided to plead guilty last February and cooperate with Mueller. Gates’ deal required him to plead guilty to the main count of conspiracy against the U.S. and another of making false statements. He faces a maximum possible sentence of ten years, but will likely get far less and could even get probation if his cooperation with Mueller is deemed particularly fruitful.
Several lawyers said that despite Manafort’s convictions in the Virginia case, Mueller would insist that Manafort plead guilty to more charges in Washington than Gates did.
“The cost of admission has gone up,” said former federal prosecutor Jeff Cramer, now with Berkeley Research Group. “He won’t get less than Gates.”
But the details of what sentence Manafort might get on the remaining charges may be beside the point. The outcome of the Virginia case could actually make a plea deal for Manafort more attractive, since he already faces substantial prison time — perhaps on the order of eight to 10 years — on his convictions there. He already faces a sentence that could amount to life for a 69-year-old.
“At this point, there’s not much he can do to avoid a life sentence, short of getting a pardon or cooperating,” Eliason said.
“If he takes a plea, all he’s doing is adding to a life sentence, so who cares?” one attorney representing witnesses in the case added.
Money could also be a factor. Manafort had five attorneys at the defense table for his Virginia trial, which lasted more than three weeks. The case against him in Washington was filed nearly a year ago and could result in another trial of similar length.
“It could be there’s a sealed indictment ready to go and as soon as Manafort is released from federal prison, there’s a van waiting to take him to state prison” — Jed Shugerman
Recently unsealed court transcripts show that Manafort was trying to free up resources earlier this year to pay for his defense after prosecutors froze some of his bank accounts.
A plea deal could seek to limit the fines Manafort would owe, although clemency from Trump could wipe out those fines altogether and perhaps even restore forfeited assets. However, the president wouldn’t have the authority to give Manafort back legal fees that he’s paid out.
“Manafort might be saying, ‘Enough is enough. I spent $1 million, or $500,000 on legal fees and got eight convictions,’” said Shugerman. “This is someone who seems to have cared a lot about money and he may now be trying to shield some amount of money for his family.”
The threat of state prosecution could also undercut some of the value of a plea deal to Manafort, since Trump’s pardon power is limited in one significant way: he can’t forgive state law crimes.
Some of the bank fraud and tax fraud charges at issue in the Virginia trial involved events in New York, Virginia and California. Each of those states might be able to bring charges against Manafort even if he resolved his federal cases through a plea deal or a pardon.
“It could be there’s a sealed indictment ready to go and as soon as Manafort is released from federal prison, there’s a van waiting to take him to state prison,” Shugerman said.
The details of state charges are complicated, though. New York has an anti-double-jeopardy law that bans some state prosecutions of crimes already tried in federal court. However, it doesn’t apply to tax charges. It’s also not clear if charges that result in a mistrial, like the 10 counts jurors deadlocked on in Virginia last month, count as having been tried or not. Statutes of limitations could add another layer of issues.
So, it’s at least possible Manafort — who’s been in jail since June — could enjoy at least several months of freedom.
Another question is whether cutting a deal might put Manafort in a spot where he can more easily be compelled to testify about the Trump campaign’s Russia contacts including the now infamous Trump Tower meeting with Russians Manafort attended in June 2016.
Lawyers said it might expose the former Trump campaign chief to more questioning but the same issue could come up even if Manafort is convicted at a second trial and Trump grants a pardon. Mueller could grant Manafort immunity and force him in front of a grand jury.
“A pardon would remove any Fifth Amendment privilege against self-incrimination,” said Phil Lacovara, who served on the Watergate Special Prosecution team. “Accordingly, Manafort could be ordered to testify about what he knows concerning the president‘s knowledge of any active cooperation between his presidential campaign and Russian agents. Any lies during that testimony would expose him to new prosecutions for perjury or making false statements.”
It’s less clear how forcing Manafort to testify would affect state charges. Under a Supreme Court ruling from 1964, state prosecutors might have to prove that none of the testimony the former Trump campaign chairman was ordered to give played any role in assembling the cases against him.
Without a deal or a pardon, Manafort could likely resist efforts to make him testify, at least while he pursued appeals — something that could take years.