November 5, 2017

THE SLACK IN THE NOOSE:

Robert Mueller's Brilliant Strategy for Outmaneuvering Trump Pardons : The president cannot save Paul Manafort. (Jed Handelsman Shugerman, 11/05/17, Slate)

Mueller's moves may make strategic sense because of a shadow hanging over the entire investigation: the potential that President Donald Trump might use his presidential pardon power to protect possible accomplices in potential crimes.

Mueller knows that Trump can pardon Manafort (or any defendant) in order to relieve the pressure to cooperate with Mueller and to keep them quiet. But Mueller also knows that presidential pardons affect only federal crimes and not state-level crimes. On the one hand, double jeopardy rules under the Fifth Amendment prevent a second prosecution for the same crime, but the doctrine of dual sovereignty allows a state to follow a federal prosecution (and vice versa). So in theory, Manafort and Papadopoulos can't rely on Trump's pardons to save them even after a conviction or a guilty plea.

But in practice, state rules can expand double jeopardy protections and limit prosecutions. In fact, New York is such a state. New York is the key state for Mueller because New York has jurisdiction over many alleged or potentially uncovered Trump-Russia crimes (conspiracy to hack/soliciting stolen goods/money laundering, etc.), and New York state Attorney General Eric Schneiderman and New York district attorneys are not politically constrained from pursuing charges.

New York's Criminal Procedure Law 40.20 states, "A person may not be twice prosecuted for the same offense." The issue is that New York defines "prosecution" broadly. Section 40.30 continues:

Except as otherwise provided in this section, a person "is prosecuted" for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either: (a) Terminates in a conviction upon a plea of guilty; or

(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.

The New York statute does not allow a state prosecution to follow a federal prosecution ("a court of any jurisdiction within the United States") for the same basic facts. The bottom line: If Mueller starts a trial on all of the potential charges, and then Trump pardons Manafort, Mueller will not be able to hand off the case to state prosecutors. And thus he would have lost leverage at the time of the indictment if he seemed headed toward losing the state prosecution as a backup.

Instead, Mueller wisely brought one set of charges (mostly financial crimes that preceded the campaign), and he is saving other charges that New York could also bring (tax fraud, soliciting stolen goods, soliciting/conspiring to hack computers). Mueller also knew that his indictment document on Monday would include a devastating amount of detail on paper without relying on any witnesses to testify, showing Mueller had the goods on a slam-dunk federal money laundering case. Then he dropped the hammer with the Papadopoulos plea agreement, showing Manafort and Gates that he has the goods on far more charges, both in federal and state court.

Posted by at November 5, 2017 9:54 AM

  

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