Why Doesn t Paul Manafort Cut A Deal?

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Portfolio Media. Inc. 111 West 19 th Street, 5th Floor New York, NY 10011 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 customerservice@law360.com Why Doesn t Paul Manafort Cut A Deal?

1 Portfolio Media. Inc. 111 West 19 th Street, 5th Floor New York, NY Phone: Fax: Why Doesn t Paul Manafort Cut A Deal? By Bryan Koenig Law360 (March 6, 2018, 9:07 PM EST) -- Michael Flynn, Rick Gates and others who face prosecution by Special Counsel Robert Mueller have cut plea deals, so why hasn t Paul Manafort? White collar defense attorneys have a few ideas. Manafort, President Donald Trump s onetime campaign chairman, faces years in prison if convicted of charges stemming from activity that predated his time with the campaign. Allegations include money laundering, tax evasion, bank fraud and hiding his foreign agent status, all of which arise from purported efforts to obscure tens of millions of dollars he made through lobbying work in the United States on behalf of pro-russian politicians in Ukraine. So far, Manafort has remained defiant. The 68-year-old former consultant publicly proclaimed his innocence in violation of a gag order which yielded no penalties beyond a warning after Gates, his former business associate and also a Trump campaign member, pled guilty Feb. 23 to allegations he worked with Manafort to hide their lobbying and the money they made from it. But this is no guarantee Manfort will stick with his not-guilty plea. If he does have something to offer Mueller, he always has that in his pocket, said Joshua M. Robbins, a former federal prosecutor who is now head of the white collar defense and government investigations department at Greenberg Gross LLP. And he has some time to make a decision about whether or not he s going to make that kind of a deal, Robbins added. Attorneys who spoke with Law360 said Gates cooperation could prove damning. But they cautioned that September, when a trial in Washington, D.C., is set to begin, is a long time from now, as is a separate trial in Virginia on bank fraud and tax evasion charges, which so far lacks a date. Manafort had been set to be arraigned Friday, March 2, on the latter charges, but the Virginia proceedings were pushed back to March 8 by the storm that hammered the East Coast. It s difficult to say at this point what the defense strategy is, said Robert A. Mintz, managing partner for McCarter & English LLP s Newark office and chair of its government investigations and white collar criminal defense practice group. Mintz, a former assistant U.S. attorney in New Jersey, noted, however, that the Manafort case is still in

2 its infancy, with a D.C. trial date more than six months away. A lot can happen between now and then, Mintz said, and Manafort could still easily cut a deal. Presidential Intervention? Manafort, of course, is far from an ordinary defendant facing an ordinary case. He s a former confidant of the current president, caught up in a probe into Russia s interference in the 2016 election and potential collusion between Moscow and the Trump campaign. U.S. intelligence agencies say Russian President Vladimir Putin chose to back Trump s candidacy against Hillary Clinton. And his former boss is uniquely positioned to help those in Mueller s crosshairs. Manafort could be hoping for a deus ex machina: a presidential pardon, Trump firing the special counsel, or some political shift leading to the termination of the investigation. At the moment, that seems unlikely, but the current trial date is months away, and unexpected things continue to happen, Robbins said in an . It may be that Manafort is holding out for a better cooperation deal, or that he doesn t have enough of value to offer Mueller, such as useful testimony against Trump or other major targets, Robbins continued. Or it may just be that Manafort feels he is innocent, and wants to put the government to its burden of proof. Trump himself has repeatedly criticized the special counsel s probe as a partisan witch hunt. But so far the president hasn t stepped in to aid those targeted by Mueller, most notably Flynn, who served briefly as Trump s national security adviser. Presidential pardons, according to Patrick J. Cotter, a former federal prosecutor who now serves as government interaction practice group head at Greensfelder Hemker & Gale PC, are not normally realistic considerations. But for Mr. Manafort it is, Cotter told Law360. Amid media reports on the subject, Trump has tweeted that the president has the complete power to pardon. He's only used that power once while in office, to clear Joe Arpaio, the former sheriff of Maricopa County, Arizona, of contempt of court charges, but in doing so he did show a willingness to clear his political supporters in the face of political turmoil. While some conservative activists like Judicial Watch President Tom Fitton have called for Trump to pardon those swept up in the probe based on alleged anti-trump bias at the FBI and U.S. Department of Justice, doing so could be dicey. For one, Trump has said the allegations against Manafort are proof the campaign did nothing wrong, given when the acts were said to have taken place. Sorry, but this is years ago, before Paul Manafort was part of the Trump campaign. But why aren't Crooked Hillary & the Dems the focus????? Trump tweeted on Oct. 30, after Gates and Manafort were indicted. Still, Mintz said, a presidential pardon is always a hypothetical possibility.

3 But it s certainly not something that you want to stake your case on if you re the defense team, he said. The options are really only to put together a defense strategy that you believe may win at trial, strike a plea deal, or potentially cooperate with the special counsel. A pardon could also be legally risky, noted William J. Hughes Jr., a former assistant U.S. attorney now with Porzio Bromberg & Newman PC. Depending on the breadth of such a pardon, Hughes said, the blanket protection afforded Manafort could could actually take away his ability to assert his Fifth Amendment right against self-incrimination if he s compelled to testify in another proceeding. One Defendant, Three Cases Manafort s legal fight is currently in front of three different judges: the ones hearing Mueller s criminal allegations in D.C. and Virginia, and another in D.C. hearing a civil suit brought by Manafort himself, in which the former lobbyist argues the special counsel s charges against him were brought under an illegally broad mandate. Manafort s lawsuit likely further undermines any chance of a plea deal, and experts see it as a long-shot challenge to Mueller s authority, perhaps aimed at drumming up political support. Prosecutors had sought to bring all the criminal allegations under a single banner, but Manafort invoked his rights not to waive venue, meaning he still currently faces two trials in two different jurisdictions with separate circuit courts to hear any appeals. One possible reason for refusing to waive venue, attorneys say, could be a chance to make arguments to different judges, and potentially a more favorable jury in Virginia. Or perhaps Manafort is trying to keep some of the allegations separate from one another. While juries are supposed to consider each allegation independently, that s often difficult, Hughes said. Strength of Mueller s Case Tight lips from Mueller s team and the sealed nature of criminal prosecutions have kept observers guessing just how strong the case against Manafort really is, but attorneys describe the indictments as incredibly thorough. The most recent Mueller indictment of Manafort and Gates is one of the strongest indictments for bank, wire fraud, mail fraud, that I ve ever read, Cotter said. It is detailed dates, places, references to multiple witnesses who one can easily glean from the indictment have already been interviewed and therefore are available to corroborate the allegations. Robbins noted in an interview, however, that it s not unusual for defendants to hold out in the face of what appear to be a strong case. Coming to terms with prison time can also take awhile, Robbins said. Andrew S. Boutros, national co-chair for Seyfarth Shaw LLP s white collar, internal investigations, and false claims team, says the breadth of the allegations is likely meant to ensure conviction on at least some of the charges.

4 They ve covered the entire gamut, said Boutros, who previously worked as a prosecutor for the U.S. attorney s office in Chicago. He further noted that the case has involved the production of huge reams of discovery, material Manafort s attorneys are likely still sifting through as they work up a strategy. Compounding those considerations, attorneys say, are the new allegations leveled against Manafort in recent weeks, and Gates guilty plea, both of which the defense must digest. Gates cooperation could prove particularly challenging for Manafort s high-powered attorneys Kevin Downing and Thomas Zehnle, who themselves are under the same gag order as Manafort as they mount a defense. They are still no doubt reeling from the guilty plea and cooperation of Rick Gates, because that completely changes the calculus in terms of defending these allegations, Mintz said, noting Gates close, yearslong relationship with Manafort and his intimate knowledge of their business dealings. But relying on Gates testimony could also create difficulties for prosecutors, Robbins said. That s because one of the charges Gates copped to was lying to federal investigators just weeks before he entered his guilty plea, specifically regarding what he was told about a 2013 meeting Manafort had with an unnamed lobbyist and a member of Congress. Manafort s team could potentially use that admission to assail Gates credibility before a jury though prosecutors might in turn use the guilty plea to show Gates owning up to previous deceptions. The defense at trial is likely to come down to Manafort s state of mind, Robbins said. He may argue that he didn t think his tax returns or [Foreign Agents Registration Act] statements had false information; he didn t believe he had any duty to report the offshore accounts; he didn t think the funds transferred to the U.S. qualified as income; he didn t mean to mislead his lenders, Robbins said in an . The challenge is that the more objectively false statements or material omissions the government can prove, the more difficult it becomes for the defendant to explain away all of them as mistakes or misunderstandings. Gates himself could potentially testify about Manafort s efforts to conceal what they were doing, while testifying of his own unlawful and fraudulent intent, Robbins continued. But defendants still enjoy the presumption of innocence until proven otherwise and attorneys note that prosecutors always put their best argument forward in indictments. We re not privy to the evidence underlying the allegations, Hughes told Law360. One potential defense against the hard-to-beat, document-based financial charges, Cotter noted, is reliance on counsel. Manafort could try to claim his transactions were cleared by an attorney, a tough defense to make, but still a possibility given the fraud allegations he faces. Those are all specific intent crimes, and he has to knowingly, essentially, violate those laws, Cotter said.

5 Cotter also cautioned against inferring too much from the five guilty pleas so far in the special counsel s probe. Those include virtually everyone else charged to date, save a group of Russians accused of trying to influence the election, and they re based on very different allegations than the one Manafort faces, largely of lying to federal investigators. And attorneys note that plea negotiations could still be underway. Manafort, they say, could be waiting on a better offer or perhaps is balking at the amount of prison time the special counsel s office is pushing for, or the level of cooperation sought. Prosecutors, too, would have to accept what Manafort is willing to tell them. Any deal Manafort may be offered, Cotter said, is likely to come with stiffer penalties than what some of the others are facing. Todd Haugh, an assistant professor of business law and ethics at Indiana University s Kelley School of Business, said Manafort may be considering the length of time behind bars he d face if convicted at trial. A decade or more, at a minimum, in prison. Haugh said. And for someone his age, that is really significant. The Virginia criminal case is U.S. v. Manafort et al., case number 1:18-cr-00083, in the U.S. District Court for the Eastern District of Virginia. The D.C. criminal case is U.S. v. Manafort et al., case number 1:17-cr-00201, in the U.S. District Court for the District of Columbia. --Editing by Mark Lebetkin. All Content , Portfolio Media, Inc.

Case 1:17-cr ABJ Document 393 Filed 08/29/18 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) )

Case 1:17-cr ABJ Document 393 Filed 08/29/18 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) Case 1:17-cr-00201-ABJ Document 393 Filed 08/29/18 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. PAUL J. MANAFORT, JR., Defendant. Criminal No. 17-201