Law & the Courts

Manafort’s Guilty Plea

(NRO Illustration: Elijah Smith; Jonathan Ernst/Reuters)
There was nothing to be gained for him or Robert Mueller in a second trial.

Paul Manafort’s guilty plea in the District of Columbia makes perfect sense. We’ve been speculating about its likelihood since Manafort was convicted three weeks ago on eight felony counts of bank and tax fraud in the Eastern District of Virginia. There was nothing to be gained for Manafort or Special Counsel Robert Mueller in a second trial.

Naturally, the media are spun up because the plea agreement, which will cap the 69-year-old Manafort’s prison time at ten years, requires Manafort’s cooperation. Anti-Trumpers have visions of the walls closing in on the president. I would counter with what I said after the Virginia convictions:

At this point, it does not appear that Mueller has a collusion case against Trump associates. His indictments involving Russian hacking and troll farms do not suggest complicity by the Trump campaign. I also find it hard to believe Mueller sees Manafort as the key to making a case on Trump when Mueller has had [Richard] Gates — Manafort’s partner — as a cooperator for six months. You have to figure Gates knows whatever Manafort knows about collusion. Yet, since Gates began cooperating with the special counsel, Mueller has filed the charges against Russians that do not implicate Trump, and has transferred those cases to other Justice Department components.

I elaborated that, when it comes to Manafort, Mueller’s focus is not President Trump. It is Russia, “specifically, Manafort’s longtime connections to Kremlin-connected operatives.” This seems consistent with what Manafort’s camp is telling the press. Politico quotes a source close to Trump’s former campaign chairman: “The cooperation agreement does not involve the Trump campaign. . . .There was no collusion with Russia.”

The guilty plea serves Mueller’s purposes. He already had Manafort looking at a potential 80 years of prison exposure from the first case. He did not need another trial and additional jail time to ratchet up pressure. So prosecutors dropped the money-laundering charges as well as allegations that Manafort made false statements and failed to register as a foreign agent of a Kremlin-connected Ukranian party; but Mueller still got Manafort to admit to the underlying conduct in those charges by having the defendant plead guilty to the special counsel’s favorite device, the amorphous, elastic charge of “conspiracy against the United States.” In addition, Manafort pled guilty to obstructing justice — the witness-tampering allegation based on which he has been detained without bail.

The defendant, moreover, admitted guilt to the bank-fraud charges on which the Virginia jury hung. If Manafort cooperates to Mueller’s satisfaction, these unresolved counts will be dismissed; but the admissions would make it difficult for Manafort to fight the charges if they were ever retried.

The resolution of Manafort’s cases in a manner that spares both parties a second trial and months of appeals closes an important chapter in the special counsel’s investigation. It potentially brings the end into sight. That prospect, of course, intensifies speculation about the president’s status. To borrow, again, from what I said three weeks ago, Mueller’s focus on Trump seems to involve possible obstruction of the investigation, not so-called collusion.

If we assume, for argument’s sake, that the special counsel has wanted to make a criminal case on the president (I’ve never been fully convinced of this), the challenge Mueller has had from the start is that there was no underlying crime to predicate his investigation. He was rashly appointed by Deputy Attorney General Rod Rosenstein in the uproar over the president’s ham-fisted firing of FBI director James Comey. But terminating executive-branch officers is not obstruction; it is a prerogative of the presidency. If it is done abusively or for unsavory motives, that could be grounds for impeachment, but not for criminal prosecution.

Ditto harassing the attorney general, contemplating the removal of the special counsel himself, and allegedly weighing in on whether Michael Flynn, the former national-security adviser, should be investigated. We can all agree — or, at least, many of us do agree — that it would be better if the president did not do such things. It should be indisputable, though, that the Constitution endows him with the authority to do them. If you don’t like it, vote him out of office . . . but it is not the business of prosecutors.

As for “collusion,” it is not a crime unless it rises to the level of conspiracy to violate a federal criminal law. At least publicly, despite all the intelligence leaks, there has never been credible evidence that the president conspired with the Russian regime to commit cyberespionage or any other crime.

Because Mueller is a federal prosecutor, not counsel to a congressional committee, his job should be limited to deciding whether there are viable criminal charges. Let’s assume there are not. The question then becomes whether Mueller is at liberty to do more than say simply that in his final report — insufficient evidence, period. Specifically, does his mandate include outlining unsavory conduct that results in no criminal charges, and opining on the president’s judgment and fitness, as well as on whether the Justice Department and the FBI had legitimate reasons to investigate the Trump campaign? That is, is he permitted to file a comprehensive narrative of uncharged behavior that a Democrat-controlled Congress could try to inflate into impeachable offenses?

These questions are just coming to the fore. The completion of the Manafort prosecution brings us closer to the day they will be answered, one way or another.

 

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