On Tuesday, the jury in the Eastern District of Virginia convicted Paul Manafort on eight counts: five counts of tax fraud, one count of failing to file reports of foreign bank and financial accounts and two counts of bank fraud. Manafort was facing 18 total counts — the judge declared a mistrial for 10 counts after the jury could not come to a decision. So what do these convictions mean for the Mueller investigation and what do they mean for Manafort himself?
This was the first courtroom test for Mueller’s prosecutors and they (mostly) passed, no small feat given that Mueller's lawyers at times seemed to be litigating against both the defense and an ill-tempered and perhaps biased judge. Indeed, on more than one occasion during the trial, Judge T.S. Ellis seemed to put his thumb on the evidentiary scale — to the detriment of the prosecution.
As a 30-year federal prosecutor, I have appeared before hundreds of judges. Most were fair and balanced, some were either slightly pro-defense or slightly pro-prosecution, a few made legal calls against my case that were not entirely supported by the applicable precedent. But rarely have I seen a judge questioning witnesses to assist one side or the other or, even worse, making comments evincing his personal disagreement with a point the prosecution or the defense was making. The document-heavy case against Manafort was strong, but cases can fall apart regardless. What matters at the end of the day is whether 12 jurors agree beyond a reasonable doubt.
This was the first courtroom test for Mueller’s prosecutors and they (mostly) passed.
This guilty verdict, coming after four tense days of jury deliberations, has the atmospheric benefit of announcing to others who may have criminal liability: If you opt to go to trial — rather that plead guilty and cooperate with the Mueller probe — you will be convicted and imprisoned. It is a message that likely will resonate with Mueller's other targets most of all. Indeed, President Donald Trump's former fixer and lawyer Michael Cohen reached a plea deal with federal prosecutors in Manhattan just today in connection with tax fraud and banking-related matters.
Of course, this is only the first trial against Manafort, and it focused primarily on financial crimes that at first blush appear unconnected to Russian collusion. It’s true that the judge set ground rules prohibiting the introduction of evidence about Manafort’s position with the Trump campaign or any potential Russian collusion.
But the fact remains that Manafort volunteered to work for free for the Trump campaign at a time when he was deep in debt and was caught red-handed (or, more accurately, red-emailed) asking how he could use his campaign status to “get whole” with a Russian oligarch to whom he was financially beholden. So Ellis’s guidelines notwithstanding, this trial was very much about Russian collusion.
Manafort’s second trial, which is supposed to begin in District of Columbia Federal District Court on September 17, is perhaps even more directly about Russian collusion. In the D.C. case, Manafort is charged with failing to register as a lobbyist on behalf of a foreign government. Although that government is Ukraine, he was lobbying for and closely associated with pro-Russian Ukrainian factions. And let’s not forget that he is also charged with tampering with witnesses by trying to convince them to lie for him and say he never lobbied in the U.S.
With another lengthy trial looming, Manafort’s options are narrowing. He could proceed to trial yet again. But what could he hope to gain? Regardless of whether he is convicted or acquitted, he will still face a virtual life sentence courtesy of his conviction in the first case. A second trial will certainly enrich Manafort’s attorneys, but the potential benefits to Manafort himself seem slim.
Another option for Manafort is what’s known as “a soldier’s plea.” I have encountered defendants who refuse to cooperate with the prosecution due to either loyalty to or fear of their criminal associates. Those defendants may choose to walk into court and plead guilty “straight up” to all indicted charges. This makes them look like good and loyal soldiers. (As an aside, these defendants usually find support within the prison population, although such considerations are less common for white collar criminals.) Given that Manafort is almost certainly angling for a pardon, a soldier’s plea might actually help him in that quest, as it would suggest his continued allegiance to Trump.
Finally, Manafort could seek to limit his sentencing exposure by belatedly offering to cooperate with Mueller. However, given that Manafort is extremely damaged goods at this point, Mueller may have no interest whatsoever in using Manafort as a cooperating witness. This is particularly likely because all indicators suggest that Manafort may be that rare defendant who is looking at a hat trick of criminal indictments: Given that Manafort was both Trump’s campaign chairman and one of the people with the most intimate and long-term involvement with Russian oligarchs and Russian money, it seems all but certain that he will be included as a co-conspirator in any future conspiracy indictment sought by Mueller.
With the cable networks awash in criticism from Rudy Giuliani and the president's other political proxies, it’s no surprise a recent poll showed two-thirds of respondents wanted to see the Russia probe wrapped up before the midterm elections. However, having worked for Mueller when he was Chief of Homicide at the U.S. Attorney’s Office for the District of Columbia, I strongly suspect the Manafort trial result will have little impact on the course or timing of the investigation.
The reality of criminal cases is that you investigate, indict and prosecute a case in court and then you turn it over to the jury. It only takes one juror refusing to vote guilty to hang a jury. I have had 11-to-1 results where I was told after the trial that the holdout juror refused to vote guilty for reasons other than the evidence in the case. (For example, due to a bias against the government.) Even had the jury remained undecided or found Manafort not guilty, Mueller’s investigation likely would have continued apace to its conclusion.
In short, today's verdict is not exactly a turning point in the Russia probe as much as it is an affirmation that Mueller’s investigation is thorough, the Mueller trial team is strong and neither the president's tweets nor the statements of his surrogates will be able to slow the Russian investigation's momentum.
Glenn Kirschner is a former federal prosecutor. He recently retired after serving as an U.S. Army JAG for more than six years and an assistant U.S. attorney for the District of Columbia for 24 years.