It’s the tale of two convicts with ties to the President.
Paul Manafort, Donald Trump’s former campaign chairman, was released from federal prison Wednesday after serving about one-third of his seven-year sentence, while Michael Cohen, the President’s longtime former personal attorney, is in limbo after a decision to send him home appears to have stalled.
The discrepancy in treatment was latched on to by Cohen’s lawyer Lanny Davis, who said in a tweet that he was “glad” for Manafort’s release and hoped Cohen would be granted the same dispensation. But Davis dangled the question as to why the men were treated differently.
“He was expected home on May 1 and then unexplained delay. Why not now? #freeMichael,” Davis tweeted.
Both men were key to special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 presidential election. Manafort stayed loyal to Trump and has remained in his favor, while Cohen incriminated Trump when he pleaded guilty, drawing the ire of the President. Manafort’s release comes as questions have circled around Attorney General William Barr’s political motivations.
Barr has recently taken renewed criticism from former prosecutors that he is bending the will of the justice system to fit the President’s wishes after the Justice Department asked a federal judge last week to drop its case against Trump’s former national security adviser Michael Flynn, who pleaded guilty in 2017 to lying to the FBI.
But others have said there is a more innocuous reason for the discrepancy in treatment of the two onetime confidants of the President, including the fact that Manafort, who is 71, has been enfeebled in recent months by poor health.
A person familiar with the decision to release Manafort said that he had met all of the criteria for early release except for the condition on length of sentence served. Because of Manafort’s vulnerability to the virus given his age and underlying health conditions, the Bureau of Prisons used its discretion to move him to home confinement, the person said. The decision to release him was made by the Bureau of Prisons, the person said, adding that officials from the Justice Department headquarters, which has oversight of the federal prison system, were not involved.
Todd Bussert, a criminal defense lawyer, said that while some may question what is behind the decision to release Manafort over Cohen, it is “consistent with other circumstances where the BOP has transferred older, infirm prisoners to home confinement, even some who have not completed 50% of their sentences.”
Barr and BOP leadership have issued guidelines to prison wardens to address how to thin prison populations, recommending they prioritize those inmates who are older and medically vulnerable, are close to finishing their sentences and have not been convicted of violent crimes.
The policy, however, is not set in stone, and inmate decisions are handled by case managers at individual prisons, with wardens signing off on conclusions. That has led to some confusion and a less-than-uniform application across inmates and prisons.
Since late March, when Barr directed the Bureau of Prisons to prioritize the use of home confinement as part of an effort to reduce the population and slow the spread of the virus, an additional 2,471 inmates have been released early to their homes, the agency said.
As of Tuesday, 2,818 federal inmates were confirmed to have coronavirus, as well as 262 BOP staff members. There are no current confirmed cases at the prison where Manafort was being held. One staff member has currently been diagnosed with the virus at Cohen’s facility.
The appeals of Manafort and Cohen
Manafort, a central figure in Mueller’s investigation into Russian interference, faced two criminal cases relating to tax crimes and undisclosed foreign lobbying and was convicted by a jury of one set of charges and pleaded guilty to the others. He became physically weaker during the trials, appearing at times in a wheelchair. His lawyers said he was suffering from gout. He also has liver and respiratory issues, and last year was moved from his prison to a hospital for a heart condition.
Manafort’s lawyers appealed to the warden at the federal prison camp FCI Loretto in Western Pennsylvania, asking that he serve the remainder of his sentence in home confinement. Manafort is scheduled for release in November 2024.
Cohen, the loyal attorney who once said he would take a bullet for Trump, pleaded guilty to lying to Congress about the Trump Organization’s plans to build a Trump Tower in Moscow during the presidential campaign, and to campaign finance crimes for facilitating hush-money payments to two women who alleged affairs with Trump years before he became President. Trump has denied the affairs. Cohen implicated Trump in his campaign finance crimes, saying he had facilitated the payments “in coordination with and at the direction of” Trump.
Cohen, 53 years old, has served about one year of his prison term and is set for release in November 2021. He has tried two routes for early release. He initially asked a federal judge for early release, which was denied.
He also appealed to prison officials at Otisville in late March, asking to be considered for home confinement and citing a history of pulmonary embolism, respiratory deficiencies and cardiac concerns.
At the time, a person familiar with the matter said the Bureau of Prisons hadn’t rescinded its decision to release Cohen to home confinement, but said his review won’t be prioritized until later this month, when Cohen has 18 months left on his sentence. Cohen should hit that mark on May 22, based on BOP’s scheduled date of release.
White House press secretary Kayleigh McEnany told reporters at the time that Trump had not intervened in Cohen’s case. “No, absolutely not,” she said.
The Bureau of Prisons changed its release guidelines several days after CNN first reported that Cohen and others at Otisville had been informed that they would be released early from prison to home confinement because of the virus outbreak.
The new guidelines had called for prisoners to have served at least half of their sentences to be considered for potential release. But days later, BOP reversed the guidance, saying it would prioritize inmates for release who had served more than 50% of their sentences or had served 25% of their sentences with less than 18 months left, without making it a hard-and-fast requirement, according to an internal memo obtained by CNN.
Manafort has not met either of those time-served conditions.
No one standard for all the elderly and infirm
Other high-profile inmates have been sent home to finish serving their sentences or furloughed to home for now with the expectation they would return to prison once the pandemic is under control.
Otisville inmate Dean Skelos, the 72-year-old former Republican New York state Senate majority leader who was convicted of corruption, was caught in the confusion over the DOJ guidance. Initially he was also told he would be going home, then BOP said it was unlikely and then he was furloughed. Skelos has 15 months left on his sentence.
Sports bettor William Walters, who was serving a five-year sentence at a federal prison in Florida for insider trading, was also granted home confinement by BOP ahead of the 73-year-old’s scheduled January 2022 release date. According to the BOP website, he’s no longer at the Florida prison camp. Walters’ lawyer did not respond to a request for comment.
A federal judge sent Michael Avenatti, the 49-year-old celebrity attorney who represented one of the women who alleged an affair with Trump and taunted the President on Twitter, to a friend’s home for 90 days. He had been convicted of attempting to embezzle more than $20 million from Nike and was awaiting trial for two other crimes at a federal jail in Manhattan. In his decision, the judge noted Avenatti’s recent bout of pneumonia and the existence of cases of coronavirus at the Metropolitan Correctional Center, where he was held.
Not all high-profile elderly and infirm inmates have been released. Bernard Madoff, the 82-year-old investor convicted of running a multibillion-dollar Ponzi scheme, told a federal judge earlier this year that he has less than 18 months to live and asked for compassionate release.
Prosecutors opposed that request and the judge hasn’t ruled on the matter. It’s unclear if Madoff asked BOP for early release given the coronavirus pandemic. According to BOP, he is still at the federal prison in Butner, North Carolina, where he is set for release in 2137.