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Manhattan DA Hopes to Revive State Criminal Case Against Paul Manafort as Possible Trump Pardon Looms

The Manhattan District Attorney’s Office filed a letter on Tuesday seeking leave from the Chief Judge of the New York Court of Appeals to appeal a decision that affirmed the dismissal of a state prosecution against former Trump campaign chairman Paul Manafort.

“I am submitting this letter on behalf of the People as an application for permission to appeal to the Court of Appeals in the above-referenced case,” Assistant District Attorney Valerie Figueredo began. “On October 22, 2020, the Appellate Division, First Department, unanimously affirmed a judgment of the Supreme Court, New York County (Maxwell Wiley, J.), rendered on December 18, 2019, granting [Manafort’s] motion to dismiss the indictment on the ground of statutory double jeopardy.”

“We ask this Court to review all issues in Appellant’s brief. Please notify me of the Judge who is assigned to this leave application so that I may submit a follow-up letter,” the DA’s office added.

Manhattan DA Cy Vance’s state mortgage fraud case against Manafort was dismissed on double jeopardy grounds in Dec. 2019, clearing the way for President Donald Trump to pardon Manafort for the federal fraud crimes for which he was convicted. Vance’s office appealed that decision, but the judgment was affirmed in Oct. 2020, again setting the stage for a pardon.

The Vance state prosecution has always been seen as a check against a pardon for Manafort, since presidential pardon power does not extend to state crimes. The dismissal, therefore, was widely viewed as rebuke of Vance.

Now that Trump has lost the 2020 election to Joe Biden, there’s been more and more chatter about possible recipients of presidential pardons before the lame-duck president leaves office. Those names include Russia probe favorites Michael Flynn, George Papadopoulos, and Paul Manafort.

Vance’s office attempted to skirt the state’s double jeopardy law by claiming the circumstances of Manafort’s federal prosecution fell within an exception to CPL 40.20 (2) (b). That statute says that a person cannot be separately prosecuted for two offenses based upon the same conduct unless “Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil.” But Judge Maxwell Wiley said the state failed to establish that the “harm or evil” the federal and state statutes were designed to prevent was “very different.”

Vance’s office also argued that because some federal fraud charges against Manafort were eventually dismissed “without prejudice,” he had not technically been “prosecuted” as defined under New York law. But Wiley rejected the argument, noting that Manafort admitted to the underlying conduct which contributed to lengthening the prison sentence agreed to as part of his plea deal. The Appellate Division agreed.

“We affirm based on Supreme Court’s well-reasoned analysis. It is undisputed that the federal charges of which defendant has already been convicted involve the same fraud, against the same victims, as is charged in his New York indictment,” the appellate court wrote in a brief 2-page order in October. “Here, as the court correctly found, the exception set forth in CPL 40.20 (2) (b) is inapplicable. The People failed to establish that the federal and state statutes, all of which were directed against fraudulent transactions, were designed to prevent very different kinds of harm or evil. The statutory differences cited by the People fall far short of satisfying the ‘very different kinds’ test.”

Read the Manhattan DA’s latest letter below:

Jerry Lambe contributed to this report.

[image via Alexandria Detention Center]

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Matt Naham is the managing editor of Law&Crime.