Pardon thread: 1/ Trump told @foxnews he is considering a pardon for Manafort.
That would backfire.
Manafort is facing many state charges.
His federal convictions are admissible in Virginia state trial (& probably in other states).
Start with this piece: slate.com/articles/news_…
That would backfire.
Manafort is facing many state charges.
His federal convictions are admissible in Virginia state trial (& probably in other states).
Start with this piece: slate.com/articles/news_…
2/ He was convicted of 5 counts of tax fraud, 2 counts of bank fraud, and 1 count of failing to report a foreign bank account. It turns out that in NY and VA, a pardon loophole prevents him from being charged for the exact same crimes, but state tax fraud is a distinct crime.
3/ In Virginia rules of evidence, past convictions can be admissible: "Such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation..." courts.state.va.us/courts/scv/ame…
4/ "...plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan." So in a Virginia trial against Manafort for tax fraud and bank fraud, these 5 federal convictions would be admissible and devastating.
5/ Here is Virginia's double jeopardy statute: "If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances... law.lis.virginia.gov/vacode/title19…
6/ ...shall be a bar to a [2d] prosecution. If the same act be a violation of both a state and a federal statute, a prosecution under the federal statute shall be a bar to a prosecution under the state statute." The point is that state and fed tax filings are separate acts.
7/ Manafort also faces NY state tax fraud charges with no double jeopardy protection. I wrote this about Michael Cohen and how NY's pardon loophole won't help him, either... slate.com/news-and-polit…
8/ NY's double jeopardy statute allows state tax fraud prosecutions, bc NY closed the Leona Helmsley loophole for tax evasion in 2011. When one cheats on federal taxes by hiding income, they always cheat on their state taxes to avoid any inconsistency. reuters.com/article/us-new…
9/ Here's the NY statute that closed the Helmsley loophole. It's probably too late for NY to close its pardon loophole for Manafort on 1 bank fraud conviction (see Stogner v. CA), but it doesn't matter. Many NY charges like tax fraud are still available. reuters.com/article/us-new…
10/ Oops, wrong link. Here's the NY Crim Pro Law 40.20(2)(i) that establishes that double jeopardy does not bar a state tax fraud prosecution: codes.findlaw.com/ny/criminal-pr…
11/ Virginia tax fraud statute: Note "fraudulent" and "fraud" in addition to "false." Manafort committed fraud, even if he accurately copied his fraudulent fed return on his state return. A statute allows jail time for tax fraud. H/t @EricColumbus law.lis.virginia.gov/vacode/title58…
12/ Here's the Virginia state website on jail for tax fraud: tax.virginia.gov/penalties-and-…
13/ Manafort was also convicted of bank fraud relating to NY and California banks. Both NY and CA (Penal Code 687) have double jeopardy statutes that seem to create a pardon loophole. But there was a hung jury on the conspiracy charge on the California bank fraud...
14/ California statute: "No person can be subjected to a 2d prosecution for a public offense for which he has once been prosecuted and convicted or acquitted." But that excludes mistrials. California could prosecute the separate acts of conspiracy, b/c it was only a hung jury.
15/ There was also a hung jury on the 4 bank fraud charges w/r/t Federal Savings Bank in Illinois - w/ some of the most glaringly corrupt bribery facts. Illinois double jeopardy law allows a 2d state prosecution after a mistrial. I would not want to face a Chicago jury.
16/ So here's one bottom line: If Trump pardons Manafort, then just on the charges from last week's federal case, Manafort would still face prosecution in 3 very blue states (NY, IL, CA) and 1 blue-ish state (VA). Those four jury pools would be worse for Manafort overall...
17/ Plus, some of Manafort's federal convictions would be admissible as evidence of intent/plan/awareness in those state trials. So even with pardons, Manafort could be facing at least four separate state trials facing overwhelming facts. How is he paying for all this?
18/ One of my readers makes a great point: The irony of the one hold-out juror is that a mistrial on some charges (Illinois bank, conspiracy in Cal) opens up Manafort to re-trials, rather than double jeopardy protection.
Thanks, #MAGA juror.
h/t @EradicateTrump
Thanks, #MAGA juror.
h/t @EradicateTrump
19/ I suggested in my @slate piece in Nov that Mueller purposely and strategically left some crimes uncharged against Manafort to neutralize the pardon problem. Now that they have 8 convictions, maybe they will strategically drop some of the next charges, too. h/t @EricColumbus
20/ A Trump pardon probably would not get Manafort out of jail temporarily while awaiting state trials, because one of those state judges is going to take Manafort's witness tampering as seriously as Judge Jackson and would deny bail. And that's state jail, not club fed.
21/ One other big point: This all implicates the Kavanaugh nomination and Trump court-packing. The Supreme Court has taken the Gamble case (yes, that's its real name) on double jeopardy and fed/state dual sovereignty for next term. It directly impacts the Trump investigation.
22/ There are many reasons the Senate should delay confirming Kavanaugh. But there is no way Kavanaugh should be confirmed while he may be the deciding vote on a case directly impacting double jeopardy law and the Trump investigation.
23/ Oh, and why would a Trump pardon for Manafort backfire? It wouldn't benefit Manafort in any concrete sense, but it would only add evidence of Trump's obstruction/criminal corrupt intent, and build an impeachment/removal case.
24/ But a Trump pardon doesn’t mean Manafort loses his 5th Amendment privilege to remain silent. He retains the right precisely because of state criminal liability. LOTS of state criminal liability.
See Warren Court’s Murphy decision in 1960s.
/FIN!
See Warren Court’s Murphy decision in 1960s.
/FIN!
25/ Well, just one more: No Supreme Court appointment would be legitimate now. This rush to bulldoze through Kavanaugh is court packing in the middle of high crimes and misdemeanors:
27/ A reader sent me this link: Manafort has been a resident of Florida since 2011, which has no state income tax. (Coincidence, I'm sure). So Manafort probably has no crim liability for state income tax. But my points still stand on other state crimes. tampabay.com/news/politics/…
