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October 30, 2017

Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment

The big news in the political world this morning is the indictment of Paul Manafort, President Donald Trump’s former campaign chairman, which flows from special counsel Robert Mueller's investigation into Russian meddling in the 2016 election.  Along for the ride is another Trump campaign official, Rick Gates, who is also facing 12 federal criminal counts thanks to the work of a federal grand jury.  As is my tendency, I will be content to respond to this news with a few sentencing-related observations while leaving it to others to engage in political spin and other forms of legal speculation.

The full 31-page indictment of Manafort and Gates is available via this link, and the 12 federal criminal counts facing them are conspiracy against the United States (count 1), conspiracy to launder money (count 2), failure to file required reports (counts 3 to 9), being an unregistered agent of a foreign principal (count 10), false/misleading FARA statements (count 11) and false statements (count 12). Though a number of these counts, coupled with the narrative of the defendants' actions in the indictment, can sound quite ominous, it is ultimately the money laundering count that should send a Halloween chill down the spine of Manafort and Gates (and, presumably, their defense lawyers).

The money laundering count appears to carry the highest statutory sentencing range (20 years) of all the charges. In addition, because of the large amounts of money involved in these offenses — the indictment alleges Manafort laundered $18 million — the calculated guideline range for this offense is least a decade (and likely more).  In other words, if Manafort were convicted of just the money laundering allegations against him, the "starting point and the initial benchmark" for his sentencing is 10+ years in federal prison. (It is not clear from a quick review of the indictment whether the amounts involved for Gates would drive his guideline range up quite so high.)

Manafort, who is 68 years old, surely would like to avoid any prison time and he certainly does not want to risk spending the rest of his life in the federal pen.  He can, of course, choose to fight all the charges at trial, but I suspect Mueller and his team only moved forward with these indictment allegations after becoming confident they could prove them all beyond a reasonable doubt.  Moreover, thanks to the reality that federal judges can and often do consider "acquitted conduct" at sentencing, even an acquittal on most but not all of the counts may not significantly change these ugly sentencing realities for Manafort and Gates.

Of course, what can change these sentencing dynamics is a plea deal that locks in some favorable sentencing terms and/or a decision by the defendants to, in the language of 5K1.1 of the federal sentencing guidelines, "provide substantial assistance in the investigation or prosecution of another person who has committed an offense."  Those hoping that these indictments turn up the heat on current members of Team Trump can and should relish the reality that Manafort and Gates now have strong sentencing reasons to consider providing substantial assistance in the investigation of others.  What others they might have information about, and what others Mueller and his team are seeking information on, will sure keep folks inside the Beltway chattering in the coming weeks and months.

October 30, 2017 at 11:28 AM | Permalink


If Hillary committed no crime, I'm guessing Manafort and Gates were also merely "extremely reckless" and "incredibly negligent", but not criminally liable.

Posted by: Lock Herup | Oct 30, 2017 12:11:41 PM

Yes, perhaps Manafort can tell us what Lynch and Clinton were talking about on the tarmac, or how Uranium One went down. Who knows that things may come from investigating Russia?

Posted by: Fast and Furious with Abortions | Oct 30, 2017 12:18:25 PM

Charming. Another blog with descriptive comment names with the usual tone.

Posted by: Joe | Oct 30, 2017 12:31:31 PM

So the whole affair boils down to how much loyalty does 18 million purchase? Not to mention a favorable opinion from Trump for running a respectable convention. They went after the weakest link hoping to accomplish either one of two things. (1) Force Trump's hand and pardon Manafort thereby making Trump look guilty. This wins the legal battle but loses the political war. (2) Trump lets Manafort go and they hope Manafort rats him out.

So the real question is whether Manafort CAN provide assistance to the government or more precisely whether Trump wants to take the risk he can.

Posted by: Daniel | Oct 30, 2017 12:43:48 PM

Can the criminal law be used for political retaliation, especially for the result of an election? What does the solemn ABA have to say?

Standard 3-1.6 Improper Bias Prohibited

(a) The prosecutor should not manifest or exercise, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, gender identity, or socioeconomic status. A prosecutor should not use other improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion. A prosecutor should strive to eliminate implicit biases, and act to mitigate any improper bias or prejudice when credibly informed that it exists within the scope of the prosecutor’s authority.

(b) A prosecutor’s office should be proactive in efforts to detect, investigate, and eliminate improper biases, with particular attention to historically persistent biases like race, in all of its work. A prosecutor’s office should regularly assess the potential for biased or unfairly disparate impacts of its policies on communities within the prosecutor’s jurisdiction, and eliminate those impacts that cannot be properly justified.

Posted by: David Behar | Oct 30, 2017 2:02:17 PM


Manafort's indictment is an indictment for behavior that occurred BEFORE he can the Trump campaign; Trump or the presidential campaign is never mentioned in the indictment. That's interesting because even if the allegations are true that was/is not the role that Mueller was hired for. Mueller was hired to investigate Russian "meddling" in the election and so far he has not indicted anyone for that. So the only real purpose of this indictment is to get Manafort to flip under some domino theory of conspiracy. It can have no other point.

Posted by: Daniel | Oct 30, 2017 2:13:47 PM

Clemency aside, Manafort's only option is a plea deal.

Posted by: beth | Oct 30, 2017 2:54:16 PM

Beth. You are not a lawyer. I respect your opinion.

However, Mueller violated the client lawyer privilege of Manafort. Mueller should lose his law license. Any judge allowing the evidence, should be removed, and impeached.

Posted by: David Behar | Oct 30, 2017 3:14:15 PM

Daniel. Do you think that discretion would have turned to Manafort for investigation had he not been campaign director of the Trump campaign? If you do not think these matters would have been investigated, then the prosecution is retaliatory.

Let me have an hour with your personal laptop, I can send you to prison for decades and fine you $millions, just on the copyright infringements, never mind the content of your finances. If you were the campaign director of an opponent, my prosecutions would be retaliatory and unethical. Every adult can be prosecuted.

Posted by: David Behar | Oct 30, 2017 3:19:19 PM

Lost in all this rigamarole is due process. Wasn't the original warrant submitted with relation to the Trump campaign itself? If any evidence comes out that is not related to the actual investigation of criminal malfeasance with regard to Trump campaign activity, then such evidence cannot be used in conjunction with this special prosecutor, at least with regard to the original request for warrant.

Geez, I'm not even a lawyer nor do I play one on the Internet, but we are in a post-Constitutional world. I'm seeing the policies played out with regard to sex offender registry issues now being brought out to bear on the rest of the populace, just as predicted.

Posted by: Eric Knight | Oct 30, 2017 3:33:20 PM

if it's found that this offices did this kind of maddness all of them should be jailed for know less than 50 years. why because someone knew this all the time and someone should also look at michigan voteing systen to see if someone got some money to help thump win the white house this mess have to stop its not a game..

Posted by: c williams | Oct 30, 2017 4:30:24 PM


Posted by: Jason Holt | Oct 30, 2017 5:57:54 PM

If Trump had some lawyers with some street, instead of Ivy indoctrinated morons, he would appoint a special prosecutor to investigate the role of Robert Mueller in the Uranium I scandal.

Posted by: David Behar | Oct 30, 2017 6:03:46 PM

original warrant submitted with relation to the Trump campaign itself?

I'm not sure what warrant you are talking about and evidence against him probably comes from various sources anyway. I'm not sure what evidence regarding investigating the former campaign manager of the Trump Administration with connections to various people involved in the investigation is "not related to the actual investigation of criminal malfeasance with regard to Trump campaign activity." Mueller broad power to investigate though if you have an actual copy of the warrant you are concerned about, it would be helpful.

Posted by: Joe | Oct 30, 2017 7:18:12 PM

Do you think Trump will put in Prison for 20 years or whatever? He is problem with tweet and attach on HC. I pray for them.... I thank God.. Safe in America.

Posted by: Donald Harmon | Oct 30, 2017 10:14:25 PM

Manafort or his lawyer should get a hold of the latest edition of Michael Levine's publication, "171 Easy Mitigating Factors." Come to think of it, 171 such factors may not be enough.

Posted by: Emily | Oct 31, 2017 12:21:15 AM

Emily. The lawyers, the filthy traitor lawyers, are advising Trump to be cool. Bannon wants to go after Mueller. I suggest a special prosecutor to investigate Mueller for his role in the Uranium One scandal.

What do you think? Give us the lawyer moron perspective.

Posted by: David Behar | Oct 31, 2017 4:54:57 AM

Behar, please explain how you got out of the straighjacket?

Posted by: Emily | Oct 31, 2017 8:33:33 AM

Eric, the scope of a warrant is different from the scope of Mueller's appointment as special prosecutor.

Not knowing the exact language of the warrant, I could easily see a warrant covering "all documents showing communications between Manafort and the Russian governments or those acting on behalf of the Russian government between March 2016 and November 2016." While the exact language of the warrant would be relevant to a motion to suppress, one issue in a motion to suppress would be the "plain view" doctrine. Under the plain view doctrine, if a law enforcement officer while properly looking for the evidence described in the warrant sees a different item -- say an e-mail to an overseas accountant giving directions on how to hide the proceeds of his work representing the Russian government -- that is evidence of a crime, the law enforcement officer who stumbles upon that item is not required to put blinders on and ignore that item.

Assuming that the item was found in plain view during a properly limited search, the question of what to do with that item would turn back to the scope of Mueller's appointment. If the terms of that appointment (not just the original terms, but any supplemental authority granted by the Deputy AG), does not include investigation of non-campaign related foreign contacts of campaign officials (and my vague understanding is that the Manafort investigation which began before he was hired as campaign manager was specifically within the scope of appointment), then that information would be forwarded to the appropriate U.S. Attorney's Office for their use in whatever charges not related to the special prosecutor's investigation were appropriate.

Posted by: tmm | Oct 31, 2017 10:33:25 AM

A.G. Rosenstein’s letter appointimg Muller as special counsel authorizes him to investigate not only “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” but also “any matters that arose or may arise directly from the investigation.” He is also authorized to investigate any matter covered by 28 CFR 600.4 (a) which includes “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”

Posted by: Michael R. Levine | Oct 31, 2017 1:25:33 PM

Trump cannot escape the fact that he hired Manafort as his campaign manager. He hired a corrupt money launderer and tax evader to run his campaign. So much for Trump's judgment.

Posted by: Dave from Texas | Oct 31, 2017 1:28:24 PM

Mueller needs to lose his law license for his violation of lawyer client privilege. He should have immediately returned the item upon learning of the illegality of the seizure. The entire collection during that raid is fruit of the poisoned tree, and needs to be excluded from any trial.

Posted by: David Behar | Oct 31, 2017 3:16:55 PM

Dave. He failed to fill out an onerous form. The form is illegal itself.

Posted by: David Behar | Oct 31, 2017 3:17:46 PM

Professor Levine

That elides my point. I don't have a problem with Mueller investigating anything that comes out of his investigation of Russian activity in the election; no one, I hope, expects him to turn a blind eye. But there is a difference between an investigation and an indictment. If his investigation discovered wrongdoing unrelated to Russian activity in the election the right thing to do would be for someone else to indict and try Manafort for that behavior. Muller is a special prosecutor, the DOJ can handle run of the mill crimes.

Posted by: Daniel | Oct 31, 2017 5:52:04 PM

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