If the answer is no, then what motive would Manafort have to lie at this point? He’s already been convicted of some charges. He agreed to cooperate with Mueller after his first trial presumably in hopes of avoiding a sentence on the remaining charges that might keep him locked up for the rest of his life. To the average defendant in that position, the prosecutor is his only remaining friend in the world. You wouldn’t lie to your only friend, one with power over your personal freedom, and risk making an enemy of him.
But Manafort’s not the average defendant, is he? He has a second friend, one with even greater power over his freedom than Mueller does. And so lawyers and pundits of all stripes are stuck asking the question, “The Worst Thing Manafort Could Do Is Lie to Mueller. So Why Did He Do It?” A logical possibility, per former prosecutor Harry Litman, is that Manafort had reason to believe he’d be pardoned by Trump if he misled Mueller about certain important details.
Did the president secretly promise to rescue Mr. Manafort, so long as he resisted Mr. Mueller? That would make sense of his otherwise confounding conduct. But the chain of implausibilities is long.
The prospect of a pardon was always in the mix, including when Mr. Manafort made his initial decision to cooperate. For it to suffice to change his mind now, it would have to have become all the more certain. But that would entail some communication, from the president, through two intermediaries (one in the Trump camp and one in the Manafort camp) and on to Mr. Manafort in prison, where all his conversations are monitored.
The perils for all those participants in such a crass scheme would be enormous. If discovered, it would mean assured conviction for witness tampering and, if any of the intermediaries was a lawyer, disbarment. For the president, it most likely would trigger impeachment, and even conviction in the Senate could not be counted out. Finally, for Mr. Manafort, it would require a measure of Mr. Trump’s good faith that nobody acquainted with the president’s track record could comfortably have. And it would still not shield him from near-certain prosecution for related state crimes.
I’m not so sure the “chain of implausibilities” is long, especially since the alternate theories he offers for Manafort’s lying are also implausible. Could it be that Manafort *wants* to go to prison because he fears assassination by his former Russian paymasters on the outside? Eh. Why agree to cooperate in the first place, then? Russian fears of what Manafort might be whispering to Mueller are more likely to get him killed than if he never talked at all. Other theories are that Manafort lied because, well, maybe he’s a pathological liar. Or maybe he’s convinced that he can somehow talk his way out of anything, even with Mueller, even after he’s already been convicted on some charges.
All of the alternate explanations are gassy. The pardon explanation is straightforward and concrete. Remember, the NYT claimed months ago that former Trump lawyer John Dowd had already raised the possibility of a pardon with Team Manafort. (Dowd denied it.) It’s true that a secret arrangement between POTUS and Manafort for the latter to lie to Mueller in return for a pardon would be a major scandal and imperil Trump’s presidency, but a lot hangs on the term “if discovered” in Litman’s analysis. If Trump thought he could get away with making such an offer without getting caught, he might do it — particularly if he had reason to believe that Manafort has information that could itself imperil his presidency if disclosed to Mueller. And it’s not quite a sure thing that Trump pardoning Manafort would free him from federal prison but still leave him subject to state prosecution. If it happens, we’ll be wrestling with the concept of double jeopardy for months.
Did I forget to mention that news broke just last night that Manafort’s lawyer has “repeatedly briefed” the White House on Manafort’s post-conviction conversations with Mueller? What reason would Manafort, ostensibly now a witness for the prosecution, have to help out a prospective defendant unless he stood to gain something important by doing so?
The arrangement was highly unusual and inflamed tensions with the special counsel’s office when prosecutors discovered it after Mr. Manafort began cooperating two months ago, the people said. Some legal experts speculated that it was a bid by Mr. Manafort for a presidential pardon even as he worked with the special counsel, Robert S. Mueller III, in hopes of a lighter sentence.
Rudolph W. Giuliani, one of the president’s personal lawyers, acknowledged the arrangement on Tuesday and defended it as a source of valuable insights into the special counsel’s inquiry and where it was headed. Such information could help shape a legal defense strategy, and it also appeared to give Mr. Trump and his legal advisers ammunition in their public relations campaign against Mr. Mueller’s office.
Giuliani’s not even pretending that the meetings were innocuous. They were, essentially, intelligence briefings on what aspects of Russiagate Mueller is interested in, gleaned by Manafort from his “cooperation” sessions with the special counsel. Which leads to an obvious suspicion: “Was the cooperation agreement just a ruse to get someone on the inside?” wonders WaPo’s Aaron Blake. Per Dan Abrams, “It’s starting to feel like [Manafort] was on a fact-finding mission for the Trump team to figure out exactly what do they want, what kind of questions are they asking, et cetera.” Manafort’s entire cooperation agreement might have been a scam, aimed at obtaining information from Mueller and then trading it to Trump in exchange for a pardon.
And Giuliani’s not being shy about that possibility either:
Rudy Giuliani tells @PeterWSJ he advised Trump that now isn’t the right time to pardon Manafort. But: “That doesn’t mean you give away your presidential prerogative to do it at the right time…Manafort should get the same consideration as anyone else.” https://t.co/p8ZwLWvSSk
— Rebecca Ballhaus (@rebeccaballhaus) November 28, 2018
Is any of this illegal? Hard to say, says former prosecutor Renato Mariotti. It’s so unusual that lawyers rarely have occasion to consider it:
15/ On its own, this could just be considered highly questionable judgment. But if this is part of a pattern of activity, you could imagine this being part of a larger obstruction of justice case being made by Mueller. It is another active attempt to undermine his investigation.
— Renato Mariotti (@renato_mariotti) November 28, 2018
As Litman says, witness tampering and obstruction charges would be on the table if if if any such arrangement between Team Trump and Team Manafort could be proved. And in this case, arguing that the president has plenary power to pardon under the Constitution wouldn’t cut it as a defense. No one’s saying he can’t lawfully pardon Manafort; the question is whether he can use the prospect of a pardon to induce Manafort to provide false information to Mueller, to throw the special counsel off. Watch incoming House Judiciary Chair Jerrold Nadler discuss this below, and how he emphasizes “dangling” a pardon instead of the act of pardoning itself. Inducement to lie would be the impeachable offense, not the resulting pardon.
One more point. The timing of Mueller’s announcement that he’s tearing up Manafort’s cooperation agreement due to lying is verrrrry interesting. He waited to do that until after Trump had submitted his own answers (in writing) to Mueller’s questions. That raises a question: How long has Mueller known that Manafort has been lying to him? Did he deliberately wait to reveal it because he suspected Trump and Manafort might be quietly coordinating on providing false information, with Trump repeating some of the same lies in his written answers? If so, Trump’s suddenly in trouble. Which may explain why his Twitter commentary about Russiagate is getting more febrile.
“The President should understand that even dangling a pardon in front of a witness like Manafort is dangerously close to obstruction of justice.” – New York @RepJerryNadler on the possibility of the President pardoning Paul Manafort https://t.co/ICNXG1TSez pic.twitter.com/aahVKHMHNO
— OutFrontCNN (@OutFrontCNN) November 28, 2018