Isn’t this an inadvertent inducement to Trump to issue a pardon? If Manafort walks free forever thanks to a pardon despite having been duly convicted in federal court, that’s entirely on Trump. POTUS may think twice before assuming a political liability of that magnitude.
Whereas if Trump knows that New York is planning to pounce, sure, why not pardon him? It’s not like Manafort’s getting off scot-free. The Manhattan D.A. is waiting in the wings. Trump would merely be signaling his belief that Mueller’s investigation is tainted, not that Manafort should be able to act with impunity in all matters just because he’s a former Trump employee.
And if, perchance, the Supreme Court should step in and decide that Manafort can’t be prosecuted by New York state prosecutors because his federal conviction triggered the Double Jeopardy Clause? Well, that’s not POTUS’s fault either. Take it up with the egghead justices if you don’t like it.
Prosecutors in [Manhattan DA Cyrus] Vance’s office began investigating Manafort in 2017, months before Mueller charged him with conspiracy, failure to file reports of foreign bank accounts and failure to register as an agent of a foreign country, activities stemming from his earlier work for Ukraine. Mueller’s team followed up with more charges of bank fraud, filing false tax returns and failure to file reports of foreign bank accounts in early 2018.
At the state level, Vance is preparing an array of criminal charges. While their full extent isn’t clear, they would include evasion of New York taxes and violations of state laws requiring companies to keep accurate books and records, according to one of the people, who asked not to be identified because the investigation is confidential…
Vance’s office has identified several areas where it believes Manafort can be charged with state offenses without triggering double jeopardy protections.
For example, New York law allows defendants who have already been convicted of evading federal taxes to be charged with the same conduct as it applies to state taxes. As a part-time resident of New York, Manafort has some exposure.
When they say that Vance is “preparing” charges, they don’t mean he’s spitballing ideas with his deputies in a conference room. They’re already before a grand jury, per the Times: “The panel is expected to wrap up its work in the coming weeks, several of the people said, and prosecutors likely will ask the grand jurors to vote on charges shortly thereafter.” This is an “in case of pardon emergency, break glass” indictment, it seems. And the timing couldn’t be better. Logically, if anything’s going to set Trump off and get him to start handing out clemency in Russiagate, it’s the conclusion of Mueller’s probe — which may come next week. Vance is getting ready, just in case.
And he might have had help from Mueller. Reports of the special counsel coordinating with state prosecutors stretch back to the early months of the investigation. Mueller’s always understood that Trump might undo the federal convictions he obtains and that that might spill over to the state level via the Double Jeopardy Clause by barring prosecutions for the same crimes under state law. I wonder if we’ll find out eventually that Mueller deliberately didn’t charge defendants like Manafort with some crimes that overlap with state offenses in their home jurisdictions, hoping/expecting to preserve those offenses for local prosecutors just in case Trump blew up the federal case with a pardon. If Mueller thought he could nail Manafort on a variety of other charges, why risk “spoiling” charges that could be filed in New York by indicting Manafort on the federal versions of those crimes too?
Democrats in New York have been trying for months to get the state legislature to close the double jeopardy “loophole” there, which *might* bar state prosecutions in the event of a presidential pardon. Even though the president technically only has power to grant clemency for federal crimes, trying Manafort on the state equivalent of those federal crimes would mean he’d be facing a jury twice for the same basic offenses. Double jeopardy! I’ve never understood the logic of that argument, though, honestly. The prohibition on double jeopardy exists to prevent the state from retrying you after you’ve been acquitted. We don’t want to give the government do-overs on trying to put people behind bars; otherwise they might retry you forever until they find a jury willing to convict. Manafort, though, hasn’t been acquitted. He was convicted. A pardon would merely mean that the president had substituted his judgment for the jury’s judgment after the fact. Why should a sovereign state like New York be barred from seeking a conviction where probable cause exists to believe that a crime was committed just because one officer in a different level of government thinks his crony should go free? It’s absurd. Double jeopardy shouldn’t be used to bind states by federal acts of clemency.