President Donald Trump’s former campaign manager Paul Manafort is being tried this week in a Virginia court for bank and tax fraud. The charges stem from special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election.
After Manafort turned himself in last October, I reached out to former federal prosecutor Renato Mariotti and asked him what Mueller’s aggressive pursuit of Manafort could tell us about the Russia investigation.
He told me that Mueller is employing a “divide and conquer” strategy, meaning he’s looking to exploit conflicts between people under investigation in order to turn them against one another. But if Manafort was going to flip against Trump, it’s very likely that he would have done so by now, Mariotti told me. You don’t go to trial and plead “not guilty” if you’re planning to cut a deal, after all.
So what exactly should we expect to happen at Manafort’s upcoming trial?
To answer this question, I reached out to Mariotti again. I asked him if anything has changed since October, how strong the legal case is against Manafort, and why he thinks Trump’s former campaign manager only has two options now: prison or a presidential pardon.
A lightly edited transcript of our conversation follows.
Last time we spoke, you were pretty sure that Manafort was going to flip, or at least that Mueller was trying to make Manafort flip. But that hasn’t happened.
Well, he’s on the eve of trial, and it’s pretty rare to see someone flip this late in the process. If he was going to flip, it’s likely he would have done it months ago. It’s possible that he’ll plead guilty, but there’s a difference between pleading guilty and flipping. Pleading guilty is self-explanatory. Flipping means you’re going to testify against your compatriots, your friends, your fellow conspirators.
I can’t say for sure that Manafort won’t flip at the last minute, but I can tell you that that’s normally a bad legal strategy. Criminals often do very stupid things, however, and Manafort does not appear to be the most savvy or rational actor in the world, so who knows what he’s thinking at this point.
Are you surprised that Manafort hasn’t flipped?
Mueller has done everything he could to put maximum pressure on Manafort. The man is facing charges in two different jurisdictions, a variety of federal charges carrying very substantial penalties, but for whatever reason, he has decided not to plead guilty, not to flip.
My speculation would be that’s because he’s hoping for a pardon or expecting a pardon, and if you’re expecting a pardon at the end, there’s no real downside in going to trial, as long as you feel confident you’ll get a pardon eventually.
Going to trial in that case could only be helpful because there’s always a chance that you get lucky and win. And beyond that, even if Manafort doesn’t win, he still gets witnesses on the record, and that could help him with any possible state prosecutions down the road.
There was a New York Times report earlier this year that said Trump’s then-lawyer, John Dowd, floated the possibility of a pardon to Manafort and onetime Trump National Security Adviser Michael Flynn’s lawyer. Perhaps that’s why Manafort believes a pardon is likely.
That’s entirely possible, maybe even likely. But we don’t know for sure. Manafort’s in a tough spot here. He’s facing almost certain conviction, given all the evidence against him, and the very high likelihood of years in prison. Given his age , that’s a grim outlook.
Even if he pleads guilty, that would only slightly reduce the sentence. He would still be facing serious prison time. So from his perspective, why not fight this thing and hope that you get a pardon on the back end if it doesn’t work out?
Do you still think the case against Manafort is moving unusually quickly?
Yeah, I do. It certainly proceeded quickly to indictment. One thing that’s become clear over time is that Mueller was handed the Manafort investigation and it had already been vetted, already been worked by the Justice Department, so he wasn’t starting at ground zero with that investigation. That certainly helped speed it along, and it has proceeded very quickly since it’s been in court.
The charges against Manafort came faster than I anticipated, and that’s probably because Mueller’s team had a head start. They charged Manafort before they had completed other parts of their investigation, which is somewhat unusual. But one upside to this is that it demonstrates progress to the public and to Congress. It signals that the investigation is bearing fruit and moving forward.
Manafort doesn’t seem to have much of a defense here. He’s being charged with crimes like failing to report certain bank accounts and not registering as a foreign agent for which there is clear, documented evidence. How do you fight that in court?
Right — that’s something we should highlight. Some of these crimes are very straightforward, and we know that because the indictment was leaked. What’s striking to me, as a prosecutor, is that these are precisely the sort of charges prosecutors love.
For example, he’s charged with not reporting certain bank accounts and with not registering as a foreign agent — these are clear-cut crimes. Either he reported the bank account or he didn’t. Either he registered as a foreign agent or he didn’t. These are very straightforward and hard to defend against.
Some of the fraud charges against Manafort are much more complicated because you have to prove someone’s mental state and motivation. But that’s not the case with the bank accounts and the failure to register as a foreign agent.
All these crimes allegedly committed by Manafort were uncovered during the course of Mueller’s Russia investigation, but they’re not specifically related to Russian meddling in the 2016 election. Is this part of a broader strategy by Mueller to gain leverage over Manafort?
There’s a myth out there that Mueller is investigating some crime called “collusion,” and that everything he’s doing relates to that. But the truth is that there is no crime called collusion, and Mueller is investigating a number of individuals who appear to have been involved with Russians.
In fact, Manafort is the first American to have been charged with conspiring with the Russians. In the DC case, there’s a superseding indictment charging him with conspiracy to obstruct justice, along with a suspected Russian intelligence agent. Clearly there’s involvement with Russia, but he’s been charged with the crimes that Mueller was able to determine or find probable cause that he committed.
At this point, it seems safe to assume that Mueller gave Manafort an opportunity to flip in order to help him prosecute the Russia case, but since Manafort has declined to do so, he’s very likely looking at significant jail time no matter what happens.
I think that’s right. Realistically, I would be surprised if the prosecutors were still reaching out to Manafort’s team regarding flipping or pleading guilty — that window has likely closed. Manafort, meanwhile, has embarked on a very aggressive strategy to challenge Mueller’s authority and to make a number of aggressive motions. But that strategy has completely failed.
His problem now is that he’s facing many criminal charges in two different jurisdictions. The government only needs to get a conviction on one of those charges to obtain a very significant prison sentence, because the judge can take into account all of Mr. Manafort’s activity if he’s convicted on any charge.
As a practical matter, then, any guilty verdict is a win for the government. Manafort essentially would have to win on every count to keep himself out of prison. The chances of that happening are next to impossible, absent a major series of blunders by the government.
So it’s prison or a pardon for Manafort now?