Special counsel Robert Mueller’s leverage over former Trump campaign manager Paul Manafort to get him to cooperate in his investigation has never been greater than it is now, after Manafort was convicted Tuesday of eight tax-fraud charges.
His hope of somehow escaping conviction is gone. The 69-year-old Manafort is looking at serious prison time - and the only way to get his sentence lowered is if he has something good to bargain to Mueller’s team.
President Donald Trump could still issue a pardon, of course. Indeed, he tweeted Wednesday that he had “such respect for a brave man” — Manafort — who had refused to “break.” But the odds of a pardon do seem lower now that Manafort has been convicted of charges that Trump himself has pointed out are unconnected to his campaign. A pardon would make Trump look guilty by association.
Mueller should still care about what Manafort can tell him. Measured by the standards of the Ken Starr investigation of President Bill Clinton, Mueller’s efforts are already a huge success.
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On Tuesday, Michael Cohen, Trump’s onetime personal lawyer, said in open court that “a candidate” (namely Trump) directed him to commit a federal election law crime. That’s more closely connected to the topic of Mueller’s investigation than was Starr’s discovery of Clinton’s lie under oath about his affair with an intern.
But Mueller still hasn’t presented any evidence of the Trump campaign’s cooperation with Russian efforts to influence the 2016 election, which it was Mueller’s investigative aim to explore. Mueller has indicted Russian intelligence officers for hacking. However, he has yet to connect the dots to the Trump campaign.
Thus, measured by Watergate special prosecutor standards, Mueller hasn’t yet hit pay dirt — or at least hasn’t told us if he has.
It remains possible that Manafort could help draw the connections between the Trump campaign and Russia more clearly than has been suggested so far. He attended the June 2016 meeting at Trump Tower between Donald Trump Jr., Jared Kushner and Russian lawyer Natalia Veselnitskaya.
Of all the Trump campaign participants, none had closer ties to Russia than Manafort, who had worked closely with Vladimir Putin’s allies in Ukraine. Given that we know Russia tried multiple routes to seek an opening to the Trump campaign, including through campaign aide George Papadopoulos, it seems unlikely that no further efforts were made to connect directly through Manafort.
All this explains why Mueller would love to flip Manafort — assuming he’s got anything to say. Meanwhile Manafort is facing further criminal charges in Washington, connected to his unregistered lobbying. And Cohen’s lawyer, Lanny Davis, has said in interviews that Cohen has information “of interest” to Mueller about Russian hacking and the Trump campaign, and would be willing to talk. Cohen could be competing with Manafort for a deal. That can only deepen Mueller’s power over Manafort.
The key fact is that although the federal sentencing guidelines suggest a range of eight to 10 years for Manafort’s crimes, that range isn’t mandatory. The judge could give Manafort up to 80 years — or he could give him a much lighter sentence, if Mueller recommends leniency in exchange for cooperation.
The fact that Manafort hasn’t made a deal with Mueller so far doesn’t necessarily mean he has nothing to tell. He might have imagined he could be acquitted or at least get a hung jury.
That wasn’t a completely crazy assessment, it turns out. Manafort’s lawyers managed to convince the jury to hang on an astonishing 10 counts — despite the fact that Manafort offered no witnesses on his side, and did not mount much in the way of a factual defense to the charges.
The split verdict gives reason to think that Manafort was legitimately rolling the dice. Now that he’s gotten a bad roll, he needs to talk to get a reduced sentence.
Trump knows all this, or at least he will be told it by his lawyers. If he thinks Manafort has information that would harm his presidency, now is the time for a pardon.
The danger for Trump, though, is that even after a pardon, Manafort could be subpoenaed to testify against Trump. The pardon wouldn’t protect him. Worse, Manafort couldn’t plead the Fifth Amendment after a pardon.
He would no longer be in danger of self-incrimination if he had been pardoned for the underlying conduct about which he would be asked to testify. If he refused to speak, he could be jailed for contempt.
The upshot is that Manafort’s role in the Mueller investigation may not be over yet. He’s kept his mouth shut so far. And unless he starts talking soon, he’s going to prison.
Noah Feldman a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.