Virginia judge calls Manafort’s plea deal ‘highly unusual,’ but is it?

Former Trump campaign chairman Paul Manafort’s Virginia case was supposedly dead and buried. Wrong. The judge in that matter has breathed life back into the case in the only way he knows how: with verve and bluntness. Judge T.S. Ellis is, of course, the same judge who told the prosecutor in Manafort’s trial that there were “tears in your eyes” and to focus on more relevant evidence — highly unusual comments. To say that Judge Ellis is an “active” judge may be an understatement.  

Now, Judge Ellis has called into question the government’s request to postpone the decision on whether to retry the 10 undecided Virginia counts until after Manafort’s cooperation with the Mueller investigation is complete, which could take a year or more. In an order dated Oct. 10, 2018, Judge Ellis said such a delay “would be highly unusual. In this district, the government’s decision to re-try a defendant on deadlocked counts is always made in a timely manner and sentencing occurs within two, to no more than four, months from entry of a guilty plea or receipt of a jury verdict.”  

{mosads}Is Judge Ellis correct? Does it matter for special counsel Robert Mueller? Having flipped scores of cooperators during my 13 years working as a federal prosecutor in the Clinton, Bush and Obama administrations, I can report that prosecutors always want to keep as much pressure as possible on cooperators to ensure the information provided is truthful. The best way to do that is to keep charges active until the cooperation is complete. For Manafort, that may include testimony at future criminal trials or even impeachment proceedings.  

If Manafort lies during any of those proceedings, or minimizes his or others’ roles in an offense, the government could reactivate the 10 Virginia counts, as well as add perjury and obstruction of justice charges. In other words, the Virginia counts can act as a giant hammer to keep Manafort in line.  

Judges respond differently to the government’s desire for power and control over cooperators.  Some judges (like Judge Ellis) like to wrap up criminal cases in an expeditious manner by sentencing defendants within a few months of conviction. Other judges are more accommodating to the government, knowing that the government’s hammer is likely to lead to a more responsive cooperator and the more efficient administration of justice through additional guilty pleas.  Indeed, many judges will allow sentencing to hang over a defendant’s head for a year or more to allow the government to achieve its ends.

To be fair, even under Judge Ellis’ preferred practice, the parties have a mechanism to reduce a defendant’s prison term even after sentencing. Rule 35 of the Federal Rules of Criminal Procedure allows for a reduction in sentence based on new events that take place after sentencing such as additional cooperation. There is, however, no mechanism to increase a defendant’s prison term after sentencing. The best way for the government to stick it to a malingering cooperator is to add new charges or move forward on dormant charges such as the 10 undecided Virginia counts.

What happens if Judge Ellis refuses to accommodate Mueller? Is his case damaged? Not really.  Of course it would be preferable to have the undecided Virginia counts hanging over Manafort’s head. But, presumably, Manafort is singing to prosecutors about all sorts of criminal wrongdoing that took place in the months leading up to the 2016 election. If Manafort goes against the government in future proceedings, the government can:

• charge Manafort for his role in the 2016 offenses;
• add perjury and obstruction of justice charges for lying under oath; and
• add any other charges not previously brought against him.

In other words, the government still has an arsenal to keep Manafort in line. And, given Manafort’s age, any additional convictions would be tantamount to a death sentence.  

In August, Manafort rolled the dice, hoping to hang or beat his Virginia case. Had that happened, he would have made that same effort in Washington, D.C., knowing all the while that the government would still take him in as a cooperator. Having lost that gambit, Manafort is beholden to the government for everything. If he screws around again by lying or minimizing his or others’ roles in the offenses, the government will not be so kind.

Manafort has one chance to save his own skin — that is, by incriminating Donald Trump Jr., Jared Kushner and the president. And, a pardon at this point does the president little good, given that Manafort likely has spilled everything already. If Manafort toys with the government this time, they will not just try to keep him in jail; they will try to bury him under it.

Seth B. Waxman, a partner at the Dickinson Wright law firm in Washington, D.C., served as a federal prosecutor in the United States Attorney’s Office for the District of Columbia, and has worked as a criminal defense lawyer in Washington and New York.