Why Manafort’s Legal Strategy Could Doom Him—and Donald Trump

Last week didn’t go well for Paul Manafort. The former chairman of Donald Trump’s presidential campaign was already facing federal criminal charges for an elaborate scheme to hide as much as $75 million from the U.S. government when Robert Mueller, the special counsel in the Russia investigation, named Manafort in not one, but two superseding indictments. The new developments left Manafort with the fearsome prospect of two separate trials, millions more in legal fees, and even more time in prison, beyond the many years he was up against. Worst of all, Manafort’s co-defendant and longtime second banana, Rick Gates—the former deputy chairman of the Trump campaign and head of the underwhelming Trump inauguration—pleaded guilty and agreed to provide testimony and information to Mueller and his team. When Gates walked out of the federal courthouse on Friday, he was practically beaming.

To me, the outcome could not appear more grim for Manafort. After practicing federal criminal law for 40 years as a prosecutor and defense lawyer, I had already thought the pending charges against him looked dead bang. They were assembled by some of the most high-powered prosecutors in Washington. They were intricately documented. Worse, they are unlikely to endear a jury to Manafort, who allegedly used his ill-gotten gains to pay for fancy cars, clothes from tony men’s shops, and the upkeep on several houses. But as bad as things appeared, the addition of Gates as a witness ensures that prosecutors will be able to offer live narration for what’s on all that dry paper. As I see it, Manafort’s eventual trials will be little more than what is referred to in the trade as a “slow plea”—a milk run to a certain conviction.

Nonetheless, Manafort has announced his intention to fight on, making him the only key defendant in Mueller’s investigation not to plead guilty and cooperate with authorities (leaving aside the 13 recently indicted Russians who are unlikely ever to be seen again on U.S. soil). It’s intriguing therefore to speculate on the thinking of the Manafort legal team, which, I believe, must be focused on the hope of a presidential pardon, despite the many risks and contingencies that such a strategy entails.

That Mueller is eager to hear from Manafort cannot be doubted. Few in the inner Trump orbit are more likely to have light to shed on the Trump campaign’s possible collusion with people of influence inside Russia. Manafort has long maintained close ties to Russia, not only through his work for the government of Ukraine, but also as a result of his own activities, which included investing with and representing Vladimir Putin crony Oleg Deripaska, an aluminum oligarch. What’s more, Manafort attended the infamous June 9, 2016 meeting at Trump Tower, arranged by Donald Trump Jr., during which they expected to receive dirt about Hillary Clinton as part of the Russian government’s effort to back the campaign. Coincidence or not, it was only a few weeks later that the first tranche of hacked Democratic National Committee e-mails were published by WikiLeaks. Later that summer, it was Manafort’s former lobbying-firm partner, Roger Stone, who made the ominous prediction that Clinton’s campaign chairman, John Podesta, was next to get his “time in the barrel.” Podesta’s e-mails began appearing on WikiLeaks several weeks later.

Indeed, The Wall Street Journal reported that in the spring of 2015, U.S. spy agencies captured Russian officials talking about Manafort. After Manafort left the Trump campaign, the Journal said, American investigators obtained a warrant to conduct surveillance of Manafort as part of the probe into Russian interference in the 2016 election. Probable cause would have been required to obtain the warrant, but the underlying evidence, which Mueller now must have, has never been revealed. So, given all this, what is Manafort’s best option to save his skin?

Someone who prefers short odds would say that Manafort should “go the hangout road,” a term used during Watergate by President Nixon and his closest aides to describe the unpalatable option of telling the whole truth and accepting the consequences. But Manafort, by pleading “not guilty” and insisting on going to trial—and by going out of his way last week to criticize Gates for cooperating—is sticking to a strategy that on the surface appears likely to find him living out most of his remaining days behind bars.

Over the years, I’ve seen many potential defendants decide to just shut up and take it for a variety of reasons: fear for their lives, in mob, gang, and drug cases; a determination to be a “stand-up guy,” unwilling to lessen their time inside at the cost of others; and, on occasion, an unrelenting hatred for the prosecutors. Manafort, no doubt, may fall within these last two categories. F.B.I. agents armed with a search warrant, after all, picked the lock on his Alexandria, Virginia, apartment and invaded it last July, making off with a cache of business documents, folders, and computer files. (One of the damning allegations in last week’s new charges: among the documents the Feds found last summer were items the government had previously subpoenaed but which Manafort had claimed, in a letter, did not exist.)

There is a price to be paid, however, for refusing to entertain plea deals. Federal sentencing guidelines deal harshly with those who keep mum and go to trial. The reason? These defendants lose the automatic sentence reductions that come with “acceptance of responsibility” and helping prosecutors. Such guidelines give prosecutors substantial ability to manipulate, punish, or reward a defendant. Indeed, for Gates, the criteria call for a sentence of 57 to 71 months in prison. An unrepentant Manafort could face much longer, at least eight years by my estimate, and probably more—a sentence that would be imposed upon the conclusion of trials that would end when Manafort is approaching the age of 70. A trial and guilty verdict, moreover, would not necessarily allow Manafort to remain silent forever. It is common these days for prosecutors to call convicted defendants before a grand jury—with the threat of even more prison time added for perjury if the defendant’s statements contradict evidence the prosecutor has in hand.

Thus, there seems to be another strategy behind Manafort’s vows to fight on. And this is a legal posture aimed at an audience of one: Donald Trump.

Robert Mueller, presumably, still doesn’t know what a truthful Manafort would have to say—but Trump does. If Manafort is, in fact, playing for a pardon—a route that even disgraced former N.S.A. chief Michael Flynn, whom Trump steadily defended, didn’t take—it would speak volumes about how damaging Manafort’s testimony could be to Trump or to those close to him, such as his son, Donald Trump Jr., and his son-in-law, Jared Kushner. If Manafort’s truthful testimony was simply going to absolve all of them of conspiring with the Russians, he could have made a deal long ago. Such testimony would have been as likely to earn an eventual pardon, once the smoke cleared. Manafort’s problem, then, seems to be that Mueller may already have evidence of collusion that threatens to endanger him, his former colleagues on the campaign, and possibly Trump himself.

A pardon, on the other hand, would solve most of Manafort’s problems. It would not only keep Manafort out of the penitentiary, but could also relieve Manafort of the prospect of forfeiting most of his riches, a punishment the latest indictments seek. Indeed, as president, Trump could encourage the I.R.S. to go easy on Manafort in reaching a deal on the taxes, penalties, and interest Manafort owes on $30 million in unreported income, a benefit that even the best-disposed prosecutor has no power to offer.

But betting on a pardon is the legal equivalent of a poker player drawing to an inside straight. It’s a perilous strategy facing mighty long odds. Obviously, Trump could have pardoned Manafort before he was charged last October. But a premature pardon, even now, comes with hazards for both the president and Manafort. The first is political. Allowing the only guy who wouldn’t talk to walk away unscathed is certain to enrage voters and could help the Democrats flip the House of Representatives in November. Fear of losing their seats might even force Republicans in the House to make some weak move toward impeachment.

The second major difficulty is a legal one. If Manafort were to be pardoned, he would lose his Fifth Amendment right to silence, since he would no longer have a reasonable fear of being prosecuted on the basis of what he said. Manafort would be quickly subpoenaed before a Mueller grand jury and again face a perjury trap.

Finally, a presidential pardon would only relieve Manafort of being charged in U.S. federal courts. New York State, however, has a strong money-laundering statute and New York Attorney General Eric Schneiderman, according to press accounts, has already been investigating Manafort for that crime, in coordination with Mueller’s office. A perceived quid pro quo—a pardon in exchange for silence—would push Schneiderman to immediately bring charges, a move that would instantly transform him into a heroic figure among Democrats and a national political force.

Manafort, therefore, seems to be playing the long game. One of the ironies of Manafort choosing to hang tough (instead of choosing to “hang out”) is that it literally prolongs the probe, since the Mueller team can’t be expected to close shop before Manafort goes to trial. The earliest he could be pardoned would be after the midterms. Even then, there would still be the risk that Manafort would be summoned to testify—meaning that for such a gambit to work, both for Manafort and Trump, the president would also have to put an end to the overall investigation by firing Mueller and instructing the Department of Justice not to replace him. At the same time, how could Trump exonerate Manafort without pardoning Trump’s son and son-in-law, who might also be at risk? As cover, Trump might well consider pardoning everyone who might be involved, even those he now might view as squealers, such as Flynn and Gates. Such a radical maneuver, however, would depend on Trump’s willingness to face a furious Congress and, come 2020, an apoplectic electorate.

Another flaw in planning for a pardon: Manafort must gamble that the Democrats don’t retake the House this November. If they did, Trump couldn’t pardon Manafort unless he was willing to see Manafort called as the first witness in the impeachment inquiry the Democrats would be certain to commence. Looking at the twisted road to a pardon, it’s understandable why defendants like Flynn and Gates decided to just cut a deal.

Manafort, it seems, is the sort of man who likes to gamble. The sheer brazenness of the conduct he was charged with (creating shell companies and partnerships to hide Ukrainian payments and then wiring it to the people who remodeled or landscaped Manafort’s homes, or creating phony income statements to obtain mortgages so he could keep up his lavish lifestyle) bespeaks a person with a ravaging appetite for money and luxury—a balls-out player who believes he can get away with just about anything if he has the gall to try. In other words, he’s the kind of man prone to defy traditional legal advice and reach for the brass ring of a pardon. A man, in fact, not unlike Trump himself.

Scott Turow, a Vanity Fair contributor, attorney, and best-selling author, is the author of Presumed Innocent, The Burden of Proof, Ordinary Heroes, and Identical. His most recently novel is Testimony.