Paul Manaforts potential life sentence is an opportunity for Mueller

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By Nick Akerman, former assistant special Watergate prosecutor

On Feb. 15, Mueller’s office filed its sentencing memorandum on Paul Manafort, Trump’s former campaign manager, who is scheduled to be sentenced next month in federal district court in the District of Columbia. In the memo, Mueller’s prosecutors agreed with the probation department’s sentencing guideline’s calculation that Manafort should be sentenced to a term of imprisonment ranging from 19 to 24 years. For Manafort, who is 69 years old, a 20-year sentence is essentially a life sentence.

So what, if anything, can Manafort do to avoid spending the rest of his life behind bars? Importantly, he may go back and actually cooperate with the Mueller investigation. There can be little doubt that Manafort still has solid information to add to Mueller’s Russian investigation. Judge Amy Berman Jackson’s findings earlier in February that Manafort lied to the FBI, prosecutors and the Mueller grand jury show that Manafort does indeed have important firsthand knowledge regarding two separate conspiracy indictments involving 25 Russian intelligence operatives.

There can be little doubt that Manafort still has solid information to add to Mueller’s Russian investigation.

First, the court found that Manafort lied about the polling data that he gave to Konstantin Kilimnik, who, according to the FBI, has ties to Russian Intelligence. Kilimnik was charged with obstruction of justice in June of 2018 for helping Manafort attempt to tamper with witnesses. The polling data in question was likely used by the Russians on social media to micro-target potential Hillary Clinton voters in an effort to suppress their votes during the 2016 presidential election. Second, Manafort lied about the Ukraine peace plan that he and Kilimnik had discussed in August 2016. This so-called peace plan included the dropping of U.S. sanctions imposed on Russia after the annexation of Crimea. The lifting of sanctions appears to be part of a qui pro quo plan involving Russian election meddling and the staged release of the emails and documents stolen from the Democratic National Committee.

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The possibility of Manafort really cooperating after being hammered with a huge sentence has been hardly mentioned in the press. This failure to recognize what might happen next with Manafort is premised on the faulty assumption that Manafort’s long trail of lies and duplicitous dealings with the government nullifies his ability to be an effective witness. In my experience as a prosecutor, however, this is not necessarily the case.

First, under the Federal Rules of Criminal Procedure, Manafort has up to one year after the date of his sentencing to ask the court for a reduction of sentence based on cooperation. Thus, under the law it is not too late for him to cooperate. Michael Cohen, Trump’s personal lawyer, will likely be taking advantage of this same rule in an effort to reduce his three-year sentence.

Second, the government frequently presents witnesses to juries who have unsavory backgrounds. Lying and cheating does not help a witness’s credibility, obviously, but it does not mean the witness will not be believed in the courtroom. Remember, Mueller’s current contingent of witnesses have similar baggage: Michael Flynn, the former national security advisor, lied to the FBI; Michael Cohen has admitted to lying to banks and government agencies — including Congress and Mueller’s office— under the guise of cooperating. Rick Gates, Manafort’s deputy during the presidential campaign, also lied to banks and government agencies including Mueller’s office when he was supposedly cooperating.

As a prosecutor, I regularly obtained convictions with witnesses with worst criminal backgrounds than any of these individuals.

As a prosecutor, I regularly obtained convictions with witnesses with worst criminal backgrounds than any of these individuals. I presented witnesses to juries who were not only liars and cheats but in some cases were murderers. Their past crimes, however, did not preclude them from being effective witnesses and ultimately telling the truth. The closeness of their relationships to the criminals they testified against made them insiders, with unique access and knowledge. They had already breached the secrecy of tight-knit criminal organizations and were able to describe in detail to juries the inner workings of those organizations

In this case, many of Mueller’s witnesses — including Manafort — held positions of trust with Donald Trump and had access to and conversations with the president at periods of high interest for Mueller’s team.

Juries convict people based on this type of accomplice testimony because the government is able to provide independent evidence corroborating what the witness says — whether through documents, tape recordings or other witnesses. The key is presenting enough corroborating evidence that a jury can convict without relying solely on the word of the accomplice witness. There is no doubt that much of this corroborating evidence exists, because the judge in Manafort’s case has already found sufficient evidence that he lied about two highly material matters to the Russian investigation. At a minimum, we can safely assume that Robert Gates can also corroborate a great deal of Manafort testimony.

Never underestimate the power of a lifetime behind bars to convince a criminal to reevaluate his relationship with prosecutors.