Evaluating Paul Manafort’s Alleged Violation of His Plea Agreement

Special Counsel Robert Mueller’s office has informed a federal court that Paul Manafort violated his plea agreement by repeatedly lying to investigators. Prosecutors thus consider the agreement null and void and have asked the court to set a sentencing date immediately.

The alleged breach was outlined in a brief submission to district judge Amy Berman Jackson in Washington, and reported by the New York Times Monday evening. The submission by Andrew Weissmann and other lawyers on Mueller’s team does not describe Manafort’s allegedly false statements, other than to say that they involve “a variety of subject matters.” Prosecutors are planning to file a sentencing memorandum “that sets forth the nature of the defendant’s crimes and lies, including those after signing the plea agreement[.]”

In the submission, prosecutors acknowledge that Manafort “believes he has provided truthful information and does not agree with the government’s characterization or that he has breached the agreement.”

On the surface, it doesn’t seem that Manafort’s dispute can get him very far. But when we look closer, we realize that this is about more than a plea; it is about a pardon.

When it comes to claimed breaches of a plea agreement, the prosecutor holds the dominant position. Defendants who plead guilty and agree to cooperate, as Manafort did on the day before his Washington trial was to begin, do so with the understanding that the value of the cooperation is the prosecutor’s call. If the prosecutor decides the information provided is not useful — or, worse, that the defendant has lied — the defendant does not get to withdraw his guilty plea. Further, if the prosecutor decides the defendant has breached the agreement, the government is under no obligation to support reductions in sentence that the defendant hoped to achieve by entering the agreement.

On that score, Mueller’s prosecutors are laying the groundwork to argue that Manafort should not even get any credit for pleading guilty and sparing the public the need for a second trial (after he was convicted at his first trial in the Eastern District of Virginia). In the submission, the special counsel points out that Manafort did not decide to plead guilty until the last minute, so prosecutors and the court had to gear up for the trial. Moreover, Weissmann emphasizes that the alleged breach relieves the government of any duty to support Manafort’s claim that he has demonstrated “acceptance of responsibility” — a standard sentencing reduction for defendants who plead guilty.

For their part, Manafort and his lawyers are clearly preparing to argue that Manafort was honest but that Mueller’s rabidly anti-Trump prosecutors did not like what he had to say — i.e., he would not implicate the president in misconduct. This would echo a theme posited by Judge T. S. Ellis in Manafort’s Virginia trial: Mueller aggressively pursued Manafort on charges that had nothing to do with Russia’s interference in the 2016 election in order to squeeze Manafort into singing, or even “composing,” as a witness against the president.

As I’ve noted a few times, particularly on our National Review podcast, The McCarthy Report, a highly unusual twist to the Manafort case is the possibility that President Trump could pardon Manafort — on the theory that the Justice Department would never have charged Manafort for his political consulting activities in Ukraine and the lavish income he earned (and failed to report) from it; and that Manafort was charged as a pressure tactic to help Mueller try to make a “collusion” case against Trump under circumstances where there was there was no evidence of a Trump-Russia criminal conspiracy.

Many will thus detect a play for a pardon in Manafort’s alleged breaching of the plea agreement, coupled with his public stance that, far from lying, he has been resisting Mueller’s heavy-handed attempt to make him lie. This take on things finds support in some of President Trump’s tweets, such as this one from August 18:

This bears watching.

I do not subscribe to the conventional wisdom that Mueller’s final report is imminent. There are strong signs that the investigation is winding down, but there are still rounds left to be played. For present purposes, I would simply point out two things.

First, Mueller is well aware of the pardon dynamic. He obviously used Manafort’s guilty-plea allocution to elicit facts that would establish the defendant’s civil liability as well as his commission of crimes that could result in state prosecutions (which a president has no power to pardon). This materially diminishes the value of a potential presidential pardon — although it would still, of course, be valuable.

Second, Mueller is equally cognizant of Trump’s political bind and concerns about impeachment. Chances are the president would already have issued pardons if his lawyers had not persuaded him that Mueller would investigate grants of clemency to potential witnesses as obstruction of the investigation. Democrats, who now control the House, could use such pardons as a rationale for filing articles of impeachment. (Naturally, Democrats and other Trump antagonists claim that Trump is already obstructing the investigation by dangling the possibility of pardons; but that is weak tea compared to actual pardons.)

Even if it is highly unlikely that Trump would ever be removed from office over this (given the Constitution’s requirement of a two-thirds Senate supermajority vote for removal), the president obviously does not want to be impeached. And Mueller knows that even the staunchest Trump supporters in Congress do not want to be put in a position of defending a pardon for Manafort (who, even if you think his prosecution was political, was convicted by a jury of financial frauds involving tens of millions of dollars).

Pardons, then, are virtually certain not to be issued until Mueller has completed his investigation. That is one reason why, unlike many Mueller watchers, I am not convinced that the special counsel is in a big hurry to close the case and file his much anticipated final report.