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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: paul manafort

The (first) Manafort sentencing

08 Friday Mar 2019

Posted by impeachableoffenses in Uncategorized

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Judge Amy Berman Jackson, Judge T.S. Ellis, Manafort, manafort sentencing, paul manafort, sentencing guidelines

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…

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E-Discovery in the Trump Age

04 Monday Feb 2019

Posted by crosbysamuel in Articles, Uncategorized

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ABA Journal, Brett Kavanaugh, data, discovery, donald trump, electronic, Emails, hillary clinton, impeach, impeachable, Impeachment, jason krause, Michael Cohen, paul manafort, Robert Mueller, Rod Rosenstein, Special Counsel, technology

Jason Krause’s article, “But their emails! Some of the Most Contentious Political Issues are E-Discovery Disputes” published in the ABA Journal, explores the e-discovery disputes surrounding the Trump campaign and presidency and modern politics in general. He notes:

A [large] debate over preserving electronic evidence continues to hang over national politics. Donald Trump Jr.’s meetings with Russians, Michael Cohen’s plea bargain, Brett Kavanaugh’s contentious confirmation to the U.S. Supreme Court, Paul Manafort’s fraud convictions and an attempt at impeaching Deputy Attorney General Rod Rosenstein all involve, at their core, electronic evidence.

Living in the computer age means our political disputes, especially those with criminal consequences, will frequently turn on electronic data and discovery. Interested readers should follow the link above.

trumpclintonhandshakegetty_2.jpgGetty Images

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Manafort Lied about Dealings with Kilimnik

09 Wednesday Jan 2019

Posted by crosbysamuel in Articles, Uncategorized

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Collusion, Conspiracy, conspiracy to defraud, conspire, donald trump, impeachable, Impeachment, konstantin kilimnik, lie, lying, madrid, paul manafort, polling data, president, Robert Mueller, russian collusion, russian intelligence, Special Counsel, ukraine, witness tampering

Special Counsel Robert Mueller believes that Paul Manafort, former Trump campaign chairmen, shared polling data with Konstantin Kilimnik, a Ukranian translator and campaign adviser believed to have ties with Russian intelligence, and that he later lied about it. Apparently, Manafort’s lawyers have conceded that Manafort neglected certain details of his Ukrainian dealings, as they wrote in a court filing that “[i]t is not surprising at all that Mr. Manafort was unable to recall specific details prior to having his recollection refreshed.” The filing also notes that Manafort forgot  and later recalled that he had met with Kilimnik in Madrid in January or February of 2017, which was after Trump became President-elect, but also after Manafort’s tenure as campaign chairmen. Manafort and Kilimnik have previously been accused of witness tampering, for allegedly reaching out to members of the Hapsburg group, and asking them to lie about secret, pro-Ukrainian lobbying done at Manafort’s behest.

If it is to be believed that Kilimnik does have ties to Russian intelligence, then this information establishes, at least, a Russian interest in President Trump’s candidacy. Of course, that is not new information. At most, it could go to establishing communication between Trump and Russia post-election. That being said, it is only circumstantial evidence. The fact that foreign powers are interested in Trump’s nomination and presidency, does not mean he cooperated with foreign powers, and the fact that Manafort cooperated with foreign powers, does not mean that Trump participated. Still, this another straw on the camel’s back.

gettyimages-975251610_wide-a5b8c154718a06791ada3f9447c359251dd114b5.jpgAFP/Getty Images

 

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Michael Cohen’s sentencing pleadings

10 Monday Dec 2018

Posted by impeachableoffenses in Uncategorized

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Cohen sentencing, Michael Cohen, Michael Flynn, paul manafort

By Frank Bowman

On Saturday, I wrote a piece for Slate analyzing some notable peculiarities in the two sentencing memoranda filed regarding former Trump lawyer Michael Coehn by the U.S. Attorney’s Office for the Southern District of New and Robert Mueller’s Special Counsel’s Office.  The link is here.

I note that the prosecutors have treated Cohen quite differently than one would treat an ordinary cooperating witness.  And I speculate that the decision to ask for a quick sentencing and to file two sentencing memos with rather different takes on Cohen’s usefulness and the credit he should get for cooperation may be a coordinated strategy to pressure Cohen to give full cooperation on everything he knows, rather than the partial cooperation he’s apparently given to date.

I note in the Slate piece that the Cohen situation is quite odd in comparison with ordinary prosecution practice.  What I find odd are three points, only two of which I really touched in the Slate piece and not completely there.  The first is the fact that SDNY and Mueller are employing Cohen as a “cooperator” at all, given that he hasn’t signed a cooperation agreement and won’t agree to be fully debriefed.  I’m sure prosecutors have done this from time to time, but I can’t recall doing that or seeing it done.  As I indicated in Slate, in any case I ever ran, my response to that kind of half-baked cooperation would have been to show the guy the door.  A half-cooperator just can’t be trusted and is a ticking bomb in your case.

Of course, I can see why, in this case, SDNY and Mueller would agree to debrief Cohen on whatever he’d give, while giving him no promises.  The importance of the case and Cohen’s position vis-a-vis Mr. Trump would make even partial information irresistible. (And by the way, I don’t recall — though certainly it’s probably been done — ever encountering a defense lawyer who’d let his client do multiple debriefings without a cooperation agreement.  Leaving all else aside, everything the guy says is arguably fair game for both sentencing enhancements under the guidelines and further charges.)

The second oddity is the fact, which I didn’t specify in Slate, of effectively letting the SDNY memo drive the sentencing train.  Of course, the SDNY charges are more serious from a criminal law point of view and carry longer sentences, so that gives SDNY more leverage over the outcome.  But in this case, it’s Cohen’s relationship to the Mueller investigation that obviously matters.  In SDNY, Cohen is just a run-of-the-mill white collar schnook.  Whether he does or doesn’t cooperate fully with respect to his own financial misdeeds is really unimportant.  What matters is what he can say about Mr. Trump, Trump’s business associates, and family.  I find it difficult to believe that SDNY would take a sentencing position based purely, or even primarily, on their views about Cohen’s cooperation in relation to his personal crimes.  Granted, SDNY has a reputation of having a high opinion of its own importance, but I don’t think even they are that parochial.  One has to think that the Mueller and SDNY positions have been coordinated with Mueller’s views being paramount.  Thus, the question is to what end.  My Slate piece is simply a speculation about what that end might be.

The third, and to me most outstanding, oddity is the timing of the sentencing (for both Cohen and Flynn).  I don’t recall ever seeking an immediate sentencing for a cooperator before they have completed their cooperation, including all testimony.  In any ordinary situation, and for the reasons I describe in Slate, it makes no sense.  There has to be a tactical reason for doing this.  The best explanation I can come up with for Cohen without knowing the inside scoop is the one I put in Slate.

Nonetheless, there are other possibilities.  One is that the three sentencing positions taken this week by Mueller, et al — as to Cohen, Flynn, and Manafort — are intended to be seen together as a signal to other potential cooperators.  The signal would be: (1) you cooperate fully, you get no prison (Flynn); (2) you cooperate, but hedge, you go to prison with only a very modest reduction (Cohen); (3) you screw with us, we’ll put you away for life (Manafort).  But if this is what they’re doing, who is the intended recipient of the signal?

A final possible explanation of the odd timing of the Cohen and Flynn sentencings is that Mueller doesn’t view the endpoint of this investigation as a trial in which Cohen and Flynn will testify.  Perhaps his focus is a report about the activities of the president.  If that’s the case, then ordinary practices regarding cooperators might be altered.  Presumably, Cohen has testified before a grand jury under oath and had his factual claims locked in so that any later material change during, for example, a congressional hearing in which he testified under oath would subject him to an additional charge of perjury.  And for Mueller, that may be good enough.

We shall see….

BTW, the reflections above are in part a response to a very kind and informative email I received from former federal prosecutor Julie Werner-Simon.  I reproduce it with my thanks below:

Dear FB:  In response to your piece this weekend in Slate re: Cohen’s cooperation, I, as former lifer-federal prosecutor (in white collar and organized crime), have these clarifications

to your point about the “odd”-ness in two prosecution teams having different “sentencing-takes” on the same defendant who is “cooperating” in multiple federal investigations. 

1.   What happened with Michael Cohen happened in multiple cases I worked as a federal prosecutor. The cooperating defendant (who was providing information to me) gave full and complete information and assisted in my investigation of other crimes and other defendants.  That same defendant “came in late” and provided little to the other team’s case.

2.   Our respective sentencing memoranda reflected the different “takes.”  What the other prosecution team was not permitted to do was “devalue” my team’s assessment of the cooperator.  The coordination in that case was akin to “driving a clutch” and both teams had to make sure the car did not stall out.  That we had different takes was not odd; how we orchestrated/presented the different takes was what required precision and finesse – as the government is required to ultimately speak in one voice vis-a-vis a defendant.

3.   With respect to Cohen “giving cooperation” but not being deemed by the federal prosecutors as a Sentencing Guideline “5K1.1 cooperator” is addressed in an interview I gave Friday eve to Millennial Politics. Here is the link for your review. 7 Takeaways From The Cohen Sentencing Memos | Millennial Politics

I thank you for your reporting which is based on experience “in the trenches.”  For me, it is essential that people who have held the job, conducted investigations and who understand the U.S.C. (the United States Code) as well as rules of evidence (Fed. R. Evid.) and trial practice – – actually write about it.

         Sincerely,

·       Julie A. Werner-Simon

·       Former Federal Prosecutor, 1986 – 2015, Senior Litigation Counsel, Major Frauds Section U.S. Attorney’s Office, Los Angeles, as well as Deputy Chief, Organized Crime Strike Force 

·       California Bar License 141630

·       Pennsylvania Bar License 37844

·       Post J.D. Fellow, Constitutional Studies, Southwestern Law (2017-19)

·       jawsMEDIA.LA@gmail.com

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Manafort Flips Again

27 Tuesday Nov 2018

Posted by crosbysamuel in Articles, Uncategorized

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campaign chairman, Collusion, Conspiracy, impeachable offense, Impeachment, indictment, lying, pardon, paul manafort, plea agreement, president, Robert Mueller, russia, russians, Special Counsel, trump, wikileaks

Special Counsel Robert Mueller has submitted court filings indicating that his team will not be recommending that Paul Manafort’s, President Trump’s former campaign chairman, sentence be reduced as previously considered, because Manafort has not been cooperative with his investigation. Manafort plead guilty to two counts of conspiracy pursuant to a deal he made with prosecutors; however, contrary to that agreement, Manafort has been lying to authorities (about some unspecified things). David S. Weinstein, a former federal prosecutor, believes Manafort’s lack of cooperation may be due to a belief that he will ultimately receive a pardon for his crimes. The consequences of such a pardon and similar pardons have previously been considered on this blog.

manafort.jpg

 

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Losing a Two-Front War

16 Sunday Sep 2018

Posted by crosbysamuel in Articles, Uncategorized

≈ 1 Comment

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campaign chairman, civil suit, conspiracy to defraud, constitution, domestic emoluments, donald trump, foreign emoluments clause, impeach, Impeachment, investigation, Manafort, maryland, Mueller, Obstruction of Justice, paul manafort, plea deal, president, Special Counsel, trump, trump internation hotel, two-front war, u.s. district court of maryland

This week has proven to be a difficult one for President Trump. As both civil and criminal investigations draw near and his tight spot becomes tighter, one can only begin to imagine his discomfort.

The world of Special Counsel Robert Mueller’s investigation has gotten a little brighter with the cooperation of Paul Manafort. Trump’s former Campaign chairman finally struck a plea deal last Friday and pleaded guilty to conspiracy to defraud the United States and obstruction of justice. Though Trump’s press secretary, Sarah Sanders, argues that the charges against Manafort have nothing to do with the President and could not incriminate him, Manafort apparently possesses information valuable enough for Mueller to agree to waive 5 of his 7 charges and argue leniency in his sentencing. Especially valuable is Manafort’s participation in the Russian lawyer meeting and any insight he may be able to give as to what happened there. Some theorize that Manafort’s cooperation promises the end of Mueller’s investigation.

On top of Mueller’s progress, Trump faces discovery requests pursuant to a civil suit in the U.S. District Court of Maryland. The suit alleges that Trump violated the Domestic and Foreign Emoluments Clauses of the United States Constitution through operation of the Trump International Hotel near the White House. Pursuant to those allegations, the plaintiffs, D.C. Attorney General Karl Racine and Maryland Attorney General Peter Frosh, are seeking communications between Trump and foreign and U.S. state government officials related to use of the hotel, records of the hotel’s business with foreign officials, records of cash transferred from the trust which collects the hotel’s funds to Trump, and documents from the General Services Administration and the U.S. Treasury Department which lease the hotel building to Trump.

The likely result of these two investigations is that allegations of impeachable offenses committed by Trump, conspiracy to defraud the American people, obstruction of justice, and violation of the emoluments clauses, will soon either be substantiated or refutable. And with midterm elections looming, this information could not have come at a better time. Soon there will be a Congress that can transform all of this discovery into articles of impeachment.

GettyImages-578331186-trump-manafort-2016-1120.jpgBill Clark, CQ Roll Call, Getty Images

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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