Manafort Sentencing, Round 2

Paul Manafort departs from U.S. District Court in Washington, D.C., February 28, 2018. (Yuri Gripas/Reuters)The 47 months from a Virginia court was a side show. Today’s sentencing is the main event.

Critics who last week blasted the light 47-month sentence imposed on Paul Manafort by Judge T. S. Ellis of the federal district court in Alexandria, Va., may lack familiarity with both the federal sentencing guidelines and the peculiarities of Manafort’s case. As I observed in my weekend column, he is going to get slammed when he gets sentenced today by Judge Amy Berman Jackson of the federal district court in Washington, D.C.

I am not telling you this based on some crystal ball I’ve been hiding. You just need to read Manafort’s plea agreement in the Washington case.

Manafort should have had only one case, not two. Even though the charges are different, the two cases were based on the same fact pattern, and they have always been two parts of the same whole. Manafort was tried twice instead of once, strictly because of his own choice.

Prosecutors would have preferred to file the whole case in Washington. But the case involved some counts (the tax counts, in particular) as to which Manafort was entitled to be tried in the venue of the offense — in Virginia, where he resided. Defending oneself in a trial is prohibitively expensive for those who have means to hire their own counsel; and trials are emotionally wrenching for an accused and his family. So most defendants waive venue objections; that allows all the counts to be tried once, in one district. But Manafort calculated that Virginia would be a friendlier place for him than Washington: He hoped to beat the case there, and maybe gain some momentum that might miraculously help him in Washington — or at least improve his argument for a pardon. He was largely wrong — convicted on all the counts the Virginia jury decided, and the hung jury on the other charges meant he could be tried again if the special counsel chose to do so. Consequently, Manafort pled guilty in the Washington case because it made no sense to fight on.

Judge Ellis may be sympathetic to Manafort, and he may have been trying to convey a signal, by the light sentence, that he thought the prosecution was overkill (i.e., that no matter how serious Manafort’s offenses are, he would never have been prosecuted if he had not gotten involved in Donald Trump’s campaign). But the Virginia sentencing exercise was theater. No matter what Ellis did, Manafort was going to be sentenced to heavy time in Washington.

In his Washington plea agreement, Manafort and his counsel agreed that his sentencing-guidelines range, at a minimum, calls for 210 to 262 months’ imprisonment (roughly 18 to 22 years). I say “at a minimum” because the agreement’s guidelines calculation includes a caveat that Manafort’s downward adjustment (2 “offense level” points) for accepting responsibility by pleading guilty could be withdrawn if Mueller’s office presses the contention that Manafort proceeded, post-plea, to lie in his failed cooperation attempt. If he is at offense level 39 instead of the currently projected 37, Manafort’s sentencing range spikes up to 262 to 327 months (roughly 22 to 27 years).

As I see it, Manafort has two things in his favor going into today’s sentencing.

First, the guidelines permit a downward departure if a defendant is elderly and infirm. It is intended to be a limited departure at best, reserved for cases in which considerations based on age are present in some unusual degree. There is nothing extraordinary about Manafort’s age here except that a term in the guidelines range would effectively be a death sentence for him. (Manafort will be 70 in about three weeks.)

Second, the guidelines are not mandatory; the sentencing judge may treat them as advisory. That, too, is less of an escape hatch than it sounds like. Most federal judges in most cases respect the overarching purpose of the guidelines, which is to ensure that similarly situated defendants receive similar sentences; reducing arbitrariness promotes public faith in the system.

Taking all of that into account, I expect Manafort to receive a sentence from Judge Jackson that, combined with the 47 months’ imprisonment from Judge Ellis, will be around 20 years, maybe a bit less (i.e., whatever term Jackson decides to impose, she will run it concurrently with or consecutively to the Ellis sentence to the extent necessary to make the bottom line roughly 20 years). I also think that if Ellis had sentenced Manafort after Jackson, rather than before, Jackson would have imposed the same sentence she’ll impose today, and Ellis would have imposed a heavier sentence but run it concurrent with Jackson’s sentence — meaning it would look like a more severe sentence than 47 months but, in effect, be zero.

In any event, understand: This has always been one case that was artificially split into two parts. There is no point getting carried away by what Judge Ellis did until we can evaluate the whole thing based on what Judge Jackson does. The straightforward sentencing guidelines and the plea agreement Paul Manafort signed tell us that a severe sentence is coming.

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