Paul Manafort‘s defense lawyers were expected to file a sentencing memorandum in his Eastern District of Virginia case by 5 p.m. on Friday, and they did so. The memo they filed in the Washington, D.C. case on Monday foreshadowed what was to come — namely, that they would remind U.S. District Judge T.S. Ellis III of the words he uttered as far back as May 2018.
In the D.C. memo, Manafort’s attorneys repeatedly criticized special counsel Robert Mueller‘s characterization of their client’s crimes as “brazen.” They also consistently emphasized that the “there is no evidence of Russian collusion.” As they did this, they made sure to mention Ellis in a footnote:
As U.S. District Judge T.S. Ellis III noted in the EDVA matter, the Special Counsel’s strategy in bringing charges against Mr. Manafort had nothing to do with the Special Counsel’s core mandate—Russian collusion—but was instead designed to “tighten the screws” to compel Mr. Manafort to cooperate and provide incriminating information about others.
What they referred to here were comments made from the bench that even caught the attention of President Donald Trump.
“I don’t see what relation this indictment has with what the special counsel is authorized to investigate,” Ellis said in May 2018. “You don’t really care about Mr. Manafort’s bank fraud […] What you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.”
Manafort’s attorneys went back to the well on this, in a footnote:
As the Court pointed out: “And so what is really going on … is that this indictment [was] used as a means of exerting pressure on the defendant to give you information that really is in [the Special Counsel’s] appointment, but itself has nothing whatever to do with it.”
“In 2016, Mr. Manafort served as campaign chairman for Donald J. Trump’s successful campaign for the presidency of the United States. Mr. Manafort served as an advisor and campaign chairman for approximately five months without compensation,” they said in the text corresponding to this footnote. “That work ultimately led to his investigation by the Special Counsel’s Office, but the prosecution in this case (and the District of Columbia case) did not charge him with anything related to Russian collusion or to the 2016 presidential campaign.”
Manafort’s team accused the special counsel of ignoring DOJ’s prior practices on prosecuting tax offenses.
“The real difference, it seems, is that the Special Counsel’s Office is prosecuting someone caught up in its Russian collusion investigation, so to ratchet up the pressure, or to make an example of Mr. Manafort, DOJ’s previous practice can be ignored,” they said. “At bottom, the use of the FBAR Guidelines in this case goes against the government’s longstanding practice of advocating for the application of the tax Guidelines to tax and tax-related offenses.”
They further accused the special counsel of “attempt[ing] to vilify Mr. Manafort as a lifelong and irredeemable felon,” saying this was “beyond the pale.” The defense attorneys said this wasn’t a surprise, however.
“The Special Counsel’s conduct comes as no surprise, and falls within the government’s pattern of spreading misinformation about Mr. Manafort to impugn his character in a manner that this country has not experienced in decades,” they said. “Indeed, the Department of Justice (DOJ) Inspector General reviewed the DOJ and the FBI’s actions in advance of the 2016 presidential election and found a pattern of unauthorized leaks of non-public information by the FBI officials to media outlet.”
Recall that after Ellis expressed his skepticism of Mueller’s intentions in May 2018, he denied Manafort’s motion to dismiss the indictment, but not without expressing his concerns about special prosecutors and possibility of “toxic partisanship.”
“The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance,” he said. “This case is a reminder that ultimately, our system of checks and balances and limitation on each branch’s powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the law.”
“Let us hope that the people in charge of this prosecution, including the Special Counsel [Mueller] and the Assistant Attorney General [Rod Rosenstein], are such people,” he continued, urging those involved to be aware of the “danger unleashed when political disagreements are transformed into partisan prosecutions.”
In the D.C. memo, Manafort’s attorneys alluded to partisan noise and national attention in arguing for a lesser sentence in that case.
“A lengthy jail sentence is not called for in this case and would not further the statutory goals of sentencing,” they said. “As a result of this widely-reported case, the public now understands what can happen when the full prosecutorial force of the United States government is brought down upon an individual, and would-be violators have been generally deterred from engaging in similar conduct.”
The special counsel already recommended 19-24.5 years in the Virginia case for the Manafort’s Aug. 2018 conviction on eight counts of bank and tax fraud. Judge Ellis, despite his desire to expedite sentencing due to Manafort’s failing health, decided to wait until Judge Amy Berman Jackson made a determination regarding the ongoing plea breach dispute. Judge Jackson agreed that Manafort lied in breach of the plea deal in three areas, including the area connected to Manafort’s former lobbying associate, Russian national Konstantin Kilimnik.
What Ellis thinks of all this remains to be seen and heard.
It seemed likely that Manafort’s defense attorneys would argue, as they did in D.C., that Manafort should get significantly less time than the sentence Mueller recommended. They mentioned Manafort’s failing health, his acceptance of responsibility, numerous testimonials to character, and a slew of other bank/tax fraud cases where defendants received a significantly lighter sentence than the one Mueller proposed.
“For all of the foregoing reasons, we respectfully request that the Court impose a sentence significantly below the advisory Guidelines determined by Probation in this case,” they said on Friday.
[Image via Alexandria Detention Center]