Thread: Trump-proof aspects of Manafort deal rankle lawyers

Trump-proof aspects of Manafort deal rankle lawyers

Robert Mueller seems to have built in safeguards to discourage the president from pardoning Manafort.

By JOSH GERSTEIN
09/18/2018 12:13 AM EDT

Special counsel Robert Mueller’s Friday plea agreement with Paul Manafort took unusual and possibly unprecedented steps to undercut President Donald Trump’s ability to pardon his former campaign chairman.

The plea deal Mueller struck with the former Trump campaign chairman contains several provisions that appear intended to discourage the former Trump aide both from seeking a pardon and to rein in the impact of any pardon Trump might grant.

Legal experts with sweeping views of executive power and attorneys who advocate for broad use of clemency criticized what they call an effort by Mueller’s team to tie the president’s hands.

“What is most concerning to me is that Mr. Mueller, who is a part of the executive branch and is supposed to follow all of DOJ’s policies and procedures, is specifically seeking to impede the ability of the president to exercise his constitutional pardon authority,” said David Rivkin, a Justice Department official under Presidents Ronald Reagan and George W. Bush.

“These waivers are troubling because they have to do with future events we can’t predict,” University of St. Thomas law professor Mark Osler said, referring to provisions in the plea deal. “They did a pretty good job hiding what they did, but as part of these agreements, sometimes the most important things you want to bury it a little.”

The 17-page deal doesn’t explicitly prohibit Manafort from seeking a pardon, but some lawyers said it appears to extract a promise from Manafort not to seek another form of executive clemency that could relieve him of the obligation to turn over tens of millions of property to the government as part of the plea bargain. The agreement also says prosecutors can come after the five identified homes or apartments, three bank accounts and a life insurance policy now or at any point in the future "without regard to the status of his criminal conviction."

Another part of the deal says that if Manafort’s guilty pleas or convictions are wiped out for any reason, prosecutors immediately have the right to charge him with any other crimes he may have committed previously or confessed to during recent plea negotiations.

Osler said he objects to some of the provisions in the plea deal as going too far to close off legitimate routes a defendant should be able to use to raise potential unfairness.

"It does appear this document was created with clemency in mind," said Osler. "If this plays out ... and later we get a pardon of some kind, we're going to have a lot of questions of first impression, I think. Then, we're going to be in the courts on this and it'll be fascinating."

The inclusion of a section barring Manafort from filing any "petition of remission" troubled some advocates because it appears to prohibit not just a request to the Justice Department but also directing such a request to the president.

A Justice Department regulation blesses the use of such language in plea deals, but seems aimed solely at the agency's internal process and not the president's parallel power.

"It is proper to include in a settlement agreement a provision that expressly leaves open or expressly forecloses the right of any party to file a petition for remission or mitigation," the regulation says.

A spokesman for Mueller's office declined to comment on the provisions in the Manafort deal or to say whether they have appeared in other plea deals in the past.

However, some attorneys said they don't think the language in the plea agreement is far from what the Justice Department has done in other cases where defendants are asked to waive numerous rights.

"it always feels like if they're not overreaching, they're heavy handed, but it's to my sense standard-issue heavy handed," said Ohio State University law professor Doug Berman.

Legal experts said that ultimately if Trump wants to pardon Manafort he can do so, but to make the pardon effective he may have to word it so broadly that it covers not only the things the former Trump campaign chair was charged with but things he wasn't.

Trump might also have to make clear what, if any property he's trying to restore to Manafort.

"The president could make a pardon as sweeping as the president chose to, as long as it doesn't apply to prospective crimes," said former federal prosecutor Andrew McCarthy. He also said the plea agreement is replete with indications that prosecutors were gaming out a potential clemency action from Trump.

"I have no doubt that they were thinking about that as they were going through it," McCarthy said. "If they're going to do this, they have every reason to do it and justify it, but be honest about it," he said, adding that he saw several "potential time bombs seeded" into the deal.

The issue of what kinds of waivers are and are not constitutional or appropriate in plea deals have been a subject of heated legal debate for decades. Some important rights can't be waived, like the right not to be subjected to cruel or unusual punishment. But other rights, like the right to a jury trial, are routinely given up in plea deals as part of the bargain.

In recent years, prosecutors began adding plea deal clauses barring defendants from using the Freedom of Information Act to request information about their cases. Last year, the D.C. Circuit Court of Appeals issued a 2-1 decision that seemed to reject that practice, questioning what legitimate interest prosecutors had in stymieing such requests. Manafort’s plea deal includes such a waiver, but it only prohibits him from making such requests as long as Mueller’s team is in business.

The Manafort plea agreement doesn't make any direct mention of the president's pardon authority. Several lawyers said prosecutors may have wanted to put something directly prohibiting Manafort from seeking a pardon, but Mueller or others may have decided such a move could provoke a backlash from Trump, the judges involved or some in the press.

"It would have created a national debate over that," Osler said. "We know Mueller doesn't like to fight battles in public that he doesn't have to."

Harvard Law Professor Alan Dershowitz said he believes the main safeguard in the plea deal against a Trump pardon is the fact that Manafort admitted to many state-law crimes that he could be charged with if the federal cases are wiped out.

Dershowitz, who has been sharply critical of the Mueller investigation, said he found "more objectionable" some provisions in the deal about forfeitures because they seem to obscure the connection to the criminal case. However, the Harvard professor called the prosecutors' stance in the Manafort deal aggressive but not a breach of any rules or standards.

"They’ve gone about as far as they can go without getting up to the red line," he said. "But I don’t think they’ve crossed any red line."

https://www.politico.com/story/2018/...r-trump-827898

I hope the President pardons Paul Manafort in full for everything including his property confiscations by the government. And I hope he does it soon. What this crooked, rotten DOJ has done to this man is unbelievable and totally unacceptable in the United States of America. A national disgrace.

There was no collusion, there was no evidence of collusion, the whole thing was a hoax, a fraud, a fabrication, a lie by the US DOJ and FBI. Everything gathered or done on that foundation is inadmissible in a court of law and illegal under the US Constitution, plain and simple. It's called Fruit of the Poison Tree, every 1 year law student knows this, even some of us who learned it in undergraduate Constitutional Law classes.