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By Frank Bowman

Yesterday, former Trump campaign manager Paul Manafort was sentenced to 47 months in prison by Judge T.S. Ellis III of the U.S. District Court in Alexandria, Virginia, for tax and bank fraud. A fair number of folks were surprised (and some disappointed) by the fact that the sentence was so far below the range of 235-293 months (roughly 19 – 24 years) recommended by the advisory Federal Sentencing Guidelines.

As someone who had a hand in shaping earlier versions of the white collar sentencing guidelines, and who has both prosecuted and defended federal white collar offenders, I have four observations about the Manafort sentence.

First, no one should be surprised that Manafort didn’t receive a sentence in the guideline range. From the advent of the Guidelines in 1987 through roughly 2003, the provisions governing high-end white collar crime underwent a steady mutation toward unyielding severity. In the beginning, they were a notable improvement over the often shockingly lenient sentences generally imposed in the previously unguided discretion of federal judges. The most common white collar sentence before the Guidelines, even for quite serious crimes, was probation. The original guidelines insisted that those who committed serious economic crimes should go to prison, albeit for relatively short periods — a few years perhaps.

However, in the years that followed, the U.S. Sentencing Commission, sometimes at the behest of Congress, sometimes responding to judges, and sometimes on its own initiative, steadily and inexorably increased the severity of white collar guideline sentences. This process climaxed from 2001 – 2003 when the Commission performed a major overhaul of the economic crime guidelines, which was followed by congressional directives issued in the wake of the Enron-era scandals that white collar sentences should be raised even higher.

The result was a set of white collar guidelines that recommends multi-decade sentences for virtually all defendants convicted of frauds involving large dollar amounts. The guideline sentencing levels for the most serious such cases are now so astronomically high that no one (including the Sentencing Commission itself) seriously contends that that they represent rational guidance for sentencing judges.

Once the Supreme Court transformed the Guidelines from a mandatory to an advisory system in the 2005 Booker case, most judges, who were already resistant to the guideline recommendations in high-loss cases, began to ignore them except in extraordinary instances. Accordingly, few knowledgeable observers expected Judge Ellis to give Manafort 20 years or anything approaching that figure.

Second, 47 months nonetheless seems low to me. In justifying his sentence, Judge Ellis alluded to the fact that other defendants convicted of the same kinds of crime – tax evasion and fraud – have often gotten sentences in the range he imposed on Manafort. He’s not wrong about that. But where he seems markedly off base is in impliedly comparing Manafort to a defendant convicted of a single (even if highly lucrative) scheme, and then adding the gloss that Manafort has lived “an otherwise blameless life.”

As the world knows, Manafort’s life has been so far from blameless as to leave some doubt that the judge was referring to the man in front of him. Manafort is a conscienceless grifter who grew rich by burnishing the public images of the most rancid assortment of thugs, demagogues, and dictators on the planet. His career has been one long outrage against honesty, fair dealing, and commitment to democratic values.

Those are factors a judge is entitled to consider when imposing a sentence. That Judge Ellis either didn’t see the obvious or chose to ignore it is cause for dismay. But the eccentricities of judges in their sentencing role is, in the end, simply part of the price we pay for the benefits of a life-tenured federal judiciary.

Third, it is at least possible that Judge Ellis was being strategic. He knew that Manafort is facing a second sentencing before Judge Amy Berman Jackson next week. He may have thought Manafort deserved more than 47 months, but did not want him to receive too much more than the maximum of ten years he faces in the second case. By keeping his own sentence low, Ellis gave Judge Jackson room to impose additional punishment, but also effectively capped the aggregate of the two sentences at just shy of fourteen years (47 months plus a possible ten years consecutive).

Finally, although it seems counterintuitive, by holding Manafort’s sentence down, Judge Ellis may have increased the odds that Manafort will have to serve it. A huge sentence of the order of magnitude suggested by the guidelines, particularly if supplemented with consecutive time from Judge Jackson, would allow President Trump to invoke the near-universal criticisms of the over-harshness of the white collar guidelines as a justification for pardoning Manafort. As matters stand, that would be a hard sell.

Let’s see what Judge Jackson has to say…