- Paul Manafort is playing a high-stakes game of poker as his second criminal trial draws nearer.
- Manafort’s lawyers are reportedly in talks with the special counsel Robert Mueller about a possible plea deal to stop the trial from going forward.
- Manafort has several options on how best to maximize his chances against Mueller.
- But Justice Department veterans say that no matter what he picks, “there are no good choices, there are just differing levels of bad choices.”
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As Paul Manafort’s second criminal trial looms, the former chairman of President Donald Trump’s campaign is reportedly in talks with the special counsel Robert Mueller about a possible plea deal before things kick off.
But regardless of what Manafort ultimately chooses, Justice Department veterans say it’s a high-risk gamble that could very well end with him spending the rest of his life in jail.
Mueller’s office charged Manafort in two separate indictments as part of its investigation into Russian interference in the 2016 election. Manafort pleaded not guilty in both, and he was convicted in his first trial earlier this summer on eight counts of tax fraud, bank fraud, and failure to report foreign bank accounts. He faces a possible decade in prison.
In the second case, brought in Washington, DC, Manafort has been charged with illegal lobbying, conspiracy, obstruction of justice, and money laundering.
Patrick Cotter, a former federal prosecutor who was part of the team that convicted the Gambino family boss John Gotti, said Manafort has “great incentive” to consider a plea deal to save himself the expense and minimize the additional years he would face in prison if he’s convicted in the second trial.
Legal experts say the best option for Manafort would be for him to plead guilty to some charges and agree to cooperate with prosecutors. That way, he would be guaranteed a more lenient sentence.
But based on his aggressive defense strategy so far, as well as his lawyers’ public comments, it’s unlikely Manafort would agree to such a deal.
Earlier this summer, for instance, Manafort’s lead defense attorney Kevin Downing said there was “no chance” his client would flip on the president.
The comment suggests Manafort is betting hard on getting a pardon from Trump, who has repeatedly complained about how unfairly Manafort is being treated.
If Manafort agreed to cooperate with federal prosecutors, it would likely throw a wrench into any possibility of securing a pardon.
That leaves three options.
Door number one: Plead guilty, but don’t cooperate
- Mark Wilson/Getty Images
Manafort could potentially pursue a plea deal that allows him to admit to some charges, but without an agreement to cooperate. That option, crucially, would leave the door open to a presidential pardon.
He would also get some time knocked off his sentence if he chose this option. Federal sentencing guidelines state that defendants get one point off their sentencing calculation – which results in a reduced sentence – if they plead guilty in time to save the government the effort of preparing for a case and trying it.
The problem in Manafort’s case, however, is that the trial will begin in a few days. Jury selection is set to start on Monday, and opening arguments are scheduled for September 24. That means prosecutors have already spent all the time and money they were going to in order to prepare for the case.
“If the government agrees to a plea deal without cooperation now, they save nothing in terms of time, money, or resources,” Cotter said. “The only way they’d agree to a deal that involves dismissing some charges and asking for a lesser sentence is if it involves a cooperation agreement.”
If Manafort had decided to pursue a plea deal as recently as last month, immediately after he was convicted in the first trial, experts say he would have had a realistic shot at securing a deal without having to cooperate. Now, they say it’s too late.
That leaves two other options, neither of which bode well for the former Trump campaign chairman.
Door number 2: ‘Eat the indictment’
If Manafort chooses to go to trial, he could take one of two paths. The first would involve him pleading guilty to all the charges against him as soon as the trial begins, a tactic known as “eating the indictment.”
In that case, Manafort would “throw himself to the mercy of the court,” said Jeffrey Cramer, a longtime former federal prosecutor in Chicago. “Then, prosecutors can argue all they want for Manafort’s sentence, but it’s ultimately up to the judge to weigh two opposing views on what that sentence should be.”
If Manafort chose that route, it would send a clear message to the White House that he was still in Trump’s corner. The judge overseeing the case would also likely show him some leniency because he would have admitted his guilt.
“And hopefully, the sentence Manafort would get would run concurrent to the sentence from his first trial,” meaning that both sentences would be carried out at the same time, Cramer said. “If they run consecutive, however, now Manafort goes from looking at 10 years to maybe 15 or 16 years in prison.”
If Manafort were to choose this option, it would also force him to detail the specifics of his alleged criminal activity. That possibility would likely rattle the White House, because the Washington, DC, case against Manafort is more deeply linked to collusion and Manafort’s time on the Trump campaign than the first case against him, which primarily centered around Manafort’s financial crimes before he joined the campaign.
Door number three: Tough it out and go to trial
The last option is for Manafort to stick it out and go to trial.
This is the riskiest path for the former Trump campaign chairman for a few reasons.
The first speaks to Mueller’s track record so far in the Russia investigation. Out of the seven US persons charged in the probe, six have pleaded guilty, and one – Manafort – was convicted following a trial.
“The evidence is there,” Cramer said. “These are not bogus charges. If Manafort goes to trial, that would likely be like a slow, drawn out guilty plea, given the evidence Mueller has and the way Manafort’s first trial went.”
“From everything I can tell about this case and what’s been made public, as well as what we saw in his first trial, the government has very, very little chance of not getting a conviction if this second trial goes forward,” he said.
A second trial would also put a bigger dent in Manafort’s finances, which took a hit when he decided to move forward with the first trial instead of striking a plea deal, like his former business associate Rick Gates did.
That said, there are two potential upsides to Manafort going to trial.
The first is that if Manafort is convicted, he may not be convicted on all the charges. In his first trial, for instance, Manafort was charged with 18 counts but convicted on just eight because one juror held out on the other ten charges.
“The best thing for Manafort to do is plead guilty and cooperate,” Cotter said, “but if he doesn’t do that, he should shoot his shot and take this thing to trial. He might get lucky like he did in the Virginia case. So his lawyer may tell him to roll the dice and fight it.”
The second upside is that, like the previous two options, Manafort would be leaving the door to a presidential pardon wide open if he goes to trial.
He may even up his chances in this case, experts said, because the stress of going through the whole public process would elicit a stronger response from the president, who frequently accuses the special counsel of going on a politically motivated fishing expedition to undermine his presidency.
“The one thing I’d say to him if I were his lawyer is that you don’t have any good choices left,” Cotter said. “There are no good choices, there are just differing levels of bad choices at this point in his life.”
Cramer echoed that view.
“Manafort has to hope and pray – and make no mistake, that’s what it is, a hope and a prayer – that the president pardons him at some point,” he said. “And boy, Manafort’s got to be really comfortable in his belief that that’s going to happen if he’s going to bet his freedom on it.”