Editor’s Note: Caroline Polisi is a federal and white collar criminal defense attorney in New York City and is a partner at Pierce Bainbridge. She frequently appears on CNN as a legal analyst. Follow her on Twitter: @CarolinePolisi. The views expressed in this commentary are her own. View more opinion articles on CNN.
He could have waited a day … or an hour. Instead, mere minutes after Judge Amy Berman Jackson delivered her sentence and sealed Paul Manafort’s fate, Manhattan District Attorney Cy Vance announced a multicount New York state indictment against the former Trump campaign chairman for an alleged “yearlong residential mortgage fraud.”
Manafort, who received a total sentence of about 7.5 years for federal crimes he both pleaded guilty to and was found guilty of at trial – now faces Vance’s 16-count indictment.
To be clear, Vance certainly should move forward with the prosecution of any crimes in his jurisdiction that his office feels is in the public’s best interest and can be proved beyond a reasonable doubt. And, certainly, there are statute-of-limitations concerns, which is one reason why waiting to indict might not be feasible.
But let’s call a spade a spade here – the message of the timing of this news seems clear: this is a stopgap to ensure Manafort does serious time in prison in the event he is pardoned.
First, in a likely attempt to defend the timing of the press release, Vance noted that his office had commenced its investigation into Manafort in March 2017. He also conspicuously – and gratuitously – used the modifier “sovereign” when describing New York’s interests.
This was an obvious allusion to the dual sovereign doctrine, which was developed as a rationale for states to prosecute defendants based on the same conduct for which they have already been charged at a federal level without impinging upon their constitutionally protected right against double jeopardy.
In a nutshell, the doctrine allows for different jurisdictions (i.e. different “sovereigns”) to work around the double jeopardy clause of the Constitution, either by getting a second bite at the apple (if the first sovereign fails to obtain a conviction), or, as is more applicable here, to pile on the punishment where one sovereign has already obtained a guilty verdict.
So why would Cy Vance want to pile on the punishment for Manafort when the combined sentence the 69-year-old received in the two federal jurisdictions in which he was prosecuted could very well mean that Manafort spends the rest of his life behind bars?
Answer: The unseemly possibility of a presidential pardon.
That prospect has been haunting the Russia investigation since its inception. And by now, we all know the oft-repeated refrain from legal analysts, voiced with greater and greater fervor recently: Even though the President’s pardon power is unfettered (he can use it, legally whenever he wants, on whomever he wants – including, according to him, himself) – it does not extend to state crimes.
Indeed, even as the President embarked upon a pardon spree early on in his presidency (one that I argued was an undeniable message to would-be cooperators against him in Robert Mueller’s sprawling Russia investigation), there were rumblings that state authorities were embarking on their own investigations into potential defendants as a kind of insurance policy against any such pardon.
Prosecutors are charged with enforcing the law without fear or favor.
As any defense attorney knows, prosecutorial discretion is a hidden obstacle in the criminal justice system. And when it is weaponized for political purposes, the integrity of our judicial system suffers.
Cy Vance is not doing himself any favors in terms of looking apolitical, with the timing of this news. Again, he should prosecute crimes if he has the evidence and if it makes sense from a prosecutorial resources standpoint. But a more prudent time to announce the prosecution – say, in the weeks or months ahead – would have been a more appropriate course.
The timing of this announcement smacks of political motivation, which is unbecoming of any prosecutor’s office.