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A Trump pardon won't keep Paul Manafort out of jail — New York can make sure of it

Ordinarily, society’s interest in seeing the same person prosecuted by two different courts for the same conduct is low. But this is a special case.
Image: Paul Manafort leaves Federal District Court in Washington on Oct. 30, 2017.
Paul Manafort leaves Federal District Court in Washington on Oct. 30, 2017.Alex Brandon / AP file

Editor's note: This piece was updated on Wednesday, March 13, 2019 to reflect Paul Manafort's sentence in District of Columbia federal court and his indictment by the Manhattan District Attorney's Office.

We recently learned that Manhattan prosecutors have put together a criminal case against Donald Trump’s former campaign chairman Paul Manafort. On Wednesday, Manafort was officially indicted by the Manhattan District Attorney's Office on 16 counts tied to residential mortgage fraud and conspiracy. Some might ask, what’s the point? Manafort already was facing decades in prison after Mueller’s prosecutors got him to plead guilty to a plethora of federal crimes (although relatively light sentences mean he will ultimately serve less than 10 years in jail.) However, borrowing a page from the Monopoly playbook, Trump still holds a potential Get Out of Jail Free card for Manafort in the form of a presidential pardon. The problem for Manafort is that Trump is playing Monopoly while the New York prosecutors are playing Clue. And while surprising, this strategy is totally legal.

The presidential pardon power is extremely broad. A president can pardon anyone for any reason, or for no articulable reason at all. Trump can pardon the living or the dead; he can pardon someone prospectively — in other words before that person is even charged with a crime. President Gerald Ford pardoned disgraced former President Richard Nixon for all the crimes Nixon may have committed while president.

So sweeping is the power of the pardon that some have argued that Trump could rightfully pardon all of the defendants charged in the Mueller probe.

Indeed, so sweeping is the power of the pardon that some have argued that Trump could rightfully pardon all of the defendants (in other words, all of the possible witnesses against Trump) charged in Robert Mueller's probe. As a former career prosecutor, I would argue that this is a pardon bridge too far, as a president should not be able to exercise his pardon power to curry favor with witnesseswho, if not pardoned, could be his downfall. However, that issue, if it comes to fruition, can only be resolved by the U.S. Supreme Court.

But there is one inviolate limitation on a president’s pardon power: A president can only pardon individuals for federal crimes, not state crimes. States are their own sovereign governments with their own criminal justice systems separate and independent of the federal criminal justice system. An individual can be charged with and tried for a federal crime and can thereafter also be charged in a state court for violations of state laws related to the same conduct. (It should be noted that some states, including New York, have passed laws limiting a state’s ability to do this.)

According to reports, the charges prepared by New York County District Attorney Cyrus Vance Jr. were prepared specifically to avoid running afoul of New York’s double jeopardy law. Some might see this as heavy-handed, bordering on unfair. But should Manafort be able to get away with stealing from the people of New York simply because the federal government has already extracted its own pound of tax flesh?

It may be true that New York ultimately focused on Manafort due to the Mueller probe and its ensuing federal prosecution. And indeed, it is quite unusual for both a state court and a federal court to prosecute an offender for the same crimes. Ordinarily, society’s interest in seeing the same person prosecuted by two different courts for the same conduct is quite low.

However, there have been times when it was in the societal interest to do so. One of the most memorable examples is the 1991 Rodney King case. It's hard to forget that horrific video showing multiple officers beating an unarmed King as he lay on the ground. Notwithstanding that damning video evidence, a state court jury found three of the four officers not guilty and hung on the fourth officer, unable to reach a unanimous verdict. Given the perceived unfairness of the verdicts, riots ensued.

Thereafter, the federal government charged and tried the same four officers for civil rights crimes arising out of that same assaultive conduct. Two of the same four officers were convicted in the federal trial and two were acquitted.

There are some compelling parallels between the Rodney King trials and the Manafort situation. Manafort has been convicted of and pleaded guilty to many felony offenses committed over the course of more than ten years. If Trump pardoned him, it would be hard to view that as a just result. Unusual though it would be to try Manafort again in a state court for largely similar offenses, it would be in the public interest and would promote, not undermine, the cause of justice.

However, Manafort’s crimes include tax and bank fraud, illegal lobbying in the United States on behalf of a foreign government and tampering with witnesses, among others. It’s hard to see how a presidential pardon would be anything but an obscene travesty of justice doled out by president determined to curry favor with a potentially damaging witness.

Recall also that Manafort attempted to cooperate with Mueller, only to have a federal judge conclude that, even as an aspiring cooperating witness, Manafort lied to the Mueller investigators about matters that were central to the special counsel’s investigation. Why is this important? During his cooperation, Manafort very likely told Mueller things that were damaging to the president. A pardon would do nothing to prevent Mueller from using any information that Manafort provided during his period of cooperation.

Ironically, a Trump pardon of Manafort would extinguish Manafort’s Fifth Amendment right against self-incrimination. Accordingly, once pardoned, Mueller could force Manafort to take the witness stand in future trials against other probe targets and compel him to testify. In short, a pardon might help Manafort avoid a federal prison term (as opposed to a potential state prison term) but it would not necessarily help Trump in the longterm. It would not suppress potential evidence Manafort can provide.

The current investigation into Trump-Russia collusion is far from business as usual. What is entirely usual, however, is the fact that someone who evades his federal taxes also criminally evades his state taxes. The fact that the state charges also serve as an insurance policy against a presidential pardon simply makes them a justice twofer.