After his conviction for fraud in August, legal experts said Paul Manafort faced a choice: flip and cooperate with special counsel Robert Mueller’s Russia probe, or bet his freedom on a presidential pardon from Trump.
No one expected he would try both.
Manafort’s resulting double-play — in which he struck a deal with investigators, then reportedly leaked information to Trump’s lawyers — was an “insane,” “unheard-of” stunt that now threatens to crush him under a sledgehammer of legal punishment, former prosecutors told VICE News.
But Manafort didn’t just throw himself into fresh legal peril, he also dished out a rare and notable setback to Mueller, observers said. Now, Mueller must presume that anything discussed with Manafort was passed to Trump — a prospect that further complicates an investigation already besieged by Trump’s allies and raises fresh questions of obstruction of justice, legal experts said.
“What Manafort did is simply unheard-of, because it’s so risky,” said Rebecca Roiphe, an expert on prosecutorial ethics at New York Law School. “But the big question is how a careful prosecutor like Mueller could allow this to happen. It’s the first chink in an otherwise flawless investigation.”
Manafort’s dramatic reversal comes at a time when Mueller is widely believed to be preparing his long-awaited report on Trump and Russia, and possibly fresh indictments against others in Trump’s orbit.
“What Manafort did is simply unheard-of, because it’s so risky.”
The key questions now, observers said, are how much Manafort already gave up to investigators, what he learned about the probe — and whether Trump’s lawyers encouraged Manafort’s risky play by dangling a presidential pardon in front of him.
Offering a reprieve in exchange for thwarting the investigation could amount to obstruction of justice, former prosecutors said — a question already central to Mueller’s investigation.
A RARE FUMBLE
The loss of a high-profile cooperating witness marked a rare fumble by the Mueller team, observers said.
“I think this is a devastating blow for the Mueller investigation,” said Seth Waxman, a ex-prosecutor in Washington, D.C. “I believe Mueller’s case won’t be as strong as it otherwise would have been with Manafort truly in the fold.”
Manafort was the highest-ranking member of the campaign to cooperate with Mueller’s team, below perhaps only Trump’s family. Mueller’s vigorous pursuit of Manafort signaled a powerful interest in learning what he knew.
“I think this is a devastating blow for the Mueller investigation.”
Mueller had likely hoped to use Manafort’s cooperation to help secure a conviction against a specific new target, said Renato Mariotti, a former prosecutor based in Chicago.
“You can assume there is some individual out there that Mueller thought Manafort could help bring charges against,” Mariotti said. “That’s now lost.”
Manafort’s credibility had already been shot through with holes by Mueller’s prosecutors at his trial in August, raising questions about whether he could ever sit comfortably on a witness stand. In court, Manafort was pilloried as a serial liar with an addiction to fine things, who bamboozled his way into millions by using his decades of political experience for crime.
“When you follow the trail of Mr. Manafort's money, it is littered with lies,” prosecutor Greg Andres told the jury in his closing argument.
Despite his glaring credibility problems, Manafort, who is believed to know the answers to many key questions, was considered Mueller’s top trophy kill.
Manafort, for example, was at the infamous Trump Tower meeting on June 9, 2016. And he’s the only campaign insider in attendance who was cooperating with investigators, Waxman pointed out.
Trump’s lawyer, Rudy Giuliani, told The New York Times on Tuesday that Manafort’s lawyer, Kevin Downing, told Giuliani that prosecutors hammered away at whether the president knew about the Trump Tower meeting.
Trump has long denied advance knowledge of the gathering, in which a Russian lawyer was billed as bringing damaging information on Trump’s opponent, Hillary Clinton.
Last week, before Manafort’s cooperation deal failed, Trump told Mueller’s team in writing that he didn’t know about the meeting before it went down, CNN reported Wednesday.
WHAT TRUMP KNOWS
Manafort’s secretive communications with Trump’s lawyers could hand Mueller’s next targets better defense strategies, legal observers said.
“Mueller now has to presume that everything he shared with Manafort is now known by every other defense team,” Mariotti said. “It’s entirely possible Mueller’s team revealed things to Manafort that they wouldn’t want Trump to know.”
Manafort remained one of roughly three-dozen members of a Joint Defense Agreement among Trump’s allies even after he became a cooperating witness for Mueller, according to the Times. The arrangement allowed the members to share information, in what observers called an unheard-of bond between a cooperating witness and subjects of the investigation.
“This is a setback for Mueller. There’s no sugarcoating it.”
Freed from his pledge to help the prosecutors, Manafort could become a useful tool for Trump and his allies, said Jill Wine-Banks, a former prosecutor in the Watergate scandal. “He could even be called as a defense witness,” she said.
Despite these unexpected problems, legal experts said the damage to Mueller appears far from fatal.
“This is a setback for Mueller. There’s no sugarcoating it,” said Gene Rossi, a former federal prosecutor from the Eastern District of Virginia, where Manafort was convicted. “But is it going to kill the investigation? Absolutely not.”
Indeed, in one very important way, Manafort’s actions may have actually handed Mueller’s team new material to work with.
PARDON ME, MR. PRESIDENT
If Trump communicated that a pardon might be coming if Manafort helped thwart the investigation, he was stepping out on thin legal ice, observers said.
“If there is evidence to suggest that the president, through intermediaries, dangled a pardon or a commutation to induce Paul Manafort to lie and obstruct, that becomes a crime,” said Rossi.
Laurence Tribe, professor of constitutional law at Harvard, was less reserved, calling Manafort’s apparent arrangement “blatant obstruction of justice and witness tampering.”
Trump’s former lawyer John Dowd broached the idea of a possible pardon with Manafort’s lawyer last year, the Times reported in March. Giuliani has publicly said Manafort and others might be eligible for pardons after the investigation ends.
But not everyone agrees that whispers of a pardon represent evidence of obstruction.
Ex-Independent Counsel Ken Starr, who led the investigation into former President Bill Clinton in the 1990s, said that while dangling clemency might be an “abuse of power” — and therefore potential grounds for impeachment — proving that the president committed a crime by exercising a constitutional power would be extremely difficult.
The notion of dangling a pardon “bothers me,” Starr said. “But I don’t think it’s likely to be a crime.”
“This means he’s going to go to jail for the rest of his life, unless there’s a pardon.”
Now that Manafort’s cooperation deal has ruptured, he’ll need that pardon more than ever.
The penalties for violating a cooperation agreement will be much worse than if Manafort had never agreed to cooperate at all, legal experts said. Manafort, who’s been locked in solitary confinement in a Virginia jail, awaits sentencing in his Virginia case in February. A judge in Washington scheduled a hearing for this Friday at 9:30 a.m. to set yet another sentencing date for other charges Manafort pleaded guilty to in September.
“This means he’s going to go to jail for the rest of his life, unless there’s a pardon,” said Wine-Banks. “And I believe there will be a pardon, unless there are consequences for Donald Trump.”
Cover image: Paul Manafort, left, leaves the Alexandria Federal Courthouse with his attorney Kevin Downing, center, on Friday, May 4, 2018, in Alexandria, Va. (AP Photo/Kevin Wolf)