The special counsel bent the rules, to be lenient.
Paul Manafort has been sentenced to 43 additional months in prison by a federal judge in Washington, D.C. Manafort had been sentenced to 47 months’ imprisonment last week by a federal judge in Virginia.
The Washington sentence was imposed at shortly after noon today, in a proceeding that took more than two hours.
Manafort was facing two conspiracy counts, each with a maximum five-year (or 60-month) sentence. On count one, Judge Amy Berman Jackson imposed 60 months, 30 months to run concurrent and 30 consecutive to the 47-month sentence imposed in Judge T. S. Ellis in Alexandria. On count two, Judge Jackson sentenced Manafort to 13 months’ incarceration, to run consecutive to both count one and the Virginia sentence.
The bottom-line result of the two cases is a prison sentence of 90 months (seven and a half years), in addition to millions of dollars in property forfeitures and fines.
In my column previewing today’s sentencing, I predicted that Manafort’s total sentence between the two cases would be closer to 20 years. I was wrong because I made a basic mistake: I focused myopically on the federal sentencing guidelines calculation in the plea agreement that Manafort signed with the special counsel when he pled guilty in Washington. I forgot that, in order to induce Manafort to plead guilty, the special counsel’s office sweetened the pot by capping his statutory exposure at ten years’ imprisonment.
Because the crimes Manafort admitted conspiring to commit are serious felonies (e.g., money laundering and witness tampering), his guidelines were very high, calling for a term of between 210 and 262 months (18 to 22 years) in prison. But prosecutors rendered the guidelines largely irrelevant by tucking the 20-year felonies into a pair of counts charged under a federal conspiracy provision that carries a maximum five-year sentence.
As I’ll come to, this violated Justice Department charging practices. For today’s purposes, though, the significant thing is that, in any situation where the sentence called for by the sentencing guidelines is greater than the maximum sentence permitted by the statutes of conviction, the statutes control. Therefore, even though the top guidelines-range sentence would have been 262 months, Judge Jackson was restricted to no more than 120 months.
She ended up imposing, in effect, 43 months, added on to the 47-month sentence imposed by Judge Ellis. Given the caterwauling that followed Ellis’s decision last week, there will no doubt be complaints that Jackson let Manafort off too easy. But if you feel that way, then Mueller shoulders much of the blame.
I have complained before about the special counsel’s flouting of Justice Department charging policies. Manafort’s two-count plea deal in the District of Columbia is a good example.
The count one conspiracy charged money laundering, a 20-year felony, as one of the objectives. Saliently, money laundering has its own conspiracy provision (Section 1956(h)), which also calls for a penalty of up to 20 years’ imprisonment. When Congress thinks a crime is important enough to have its own conspiracy provision, federal prosecutors are supposed to charge that provision, since it reflects the punishment Congress has directed for that conduct.
Yet, to shield Manafort from Congress’s intended penalty, Mueller allowed him to plead guilty under the penal code’s catch-all conspiracy provision, Section 371. This section has a maximum penalty of five years and is supposed to apply only to less serious crimes that do not have their own conspiracy provision. Federal prosecutors are not supposed to frustrate congressional intent by charging the catch-all conspiracy when the underlying conduct (here, money laundering) has a conspiracy provision that calls for a more severe sentence (here, 20 years).
Indeed, the reason why Manafort’s sentencing guidelines are so much higher than the statutory penalties for the crimes charged is that the guidelines are driven by how Congress rates the criminal conduct involved, whereas Mueller did not charge the statutes that correlate to that conduct.
An example: Let’s say a defendant committed two money-laundering felonies. That would add up to 40 years of statutory exposure. The guidelines reflect how seriously Congress takes money laundering. If sentencing practice is working properly, the guidelines range should be within the statutory range. The statutes state a wide range that accounts for all possible money-laundering offenses, from the least serious to the most serious (in our two-count example, zero to 40 years). The guidelines, by contrast, more narrowly reflect the defendant’s actual conduct, which should fall someplace between least and most serious. Thus, if the defendant in our example pled guilty to the two 20-year counts, it would make sense for the guidelines to calculate a range of 210 to 262 months, comfortably within this 40-year statutory range.
To shield Manafort, however, Mueller avoided charging the applicable 20-year conspiracy count. He instead charged the five-year conspiracy count, far below what Congress and the Sentencing Commission have indicated is a commensurate penalty for money laundering.
The second conspiracy count to which Manafort pled guilty involved witness tampering. The witness-tampering provision Mueller cited, Section 1512(b)(1), prescribes a 20-year offense. Like money laundering, witness tampering has its own conspiracy provision, which makes the penalty 20 years. Yet, once again, instead of charging Manafort under Congress’s witness-tampering provision, Mueller charged him under Section 371, insulating him from the harsher sentence.
Bottom line: Yes, Judge Ellis could have imposed a much more severe sentence; and Judge Jackson could have imposed a harsher total sentence by maxing out the two five-year counts (120 months) and running them consecutively to Ellis’s 47-month term — that would have made for a 167-month sentence, instead of 90 months.
Nevertheless, if you want to know why Manafort faced comparatively limited prison time today, blame Special Counsel Mueller. Under federal law, conspiracies to commit money laundering and witness tampering should have carried an aggregate 40 years of statutory exposure. That would have enabled the judge to impose a stiff guidelines sentence of between 210 and 262 months. But the special counsel invoked the wrong conspiracy statutes to spare Manafort greater punishment.
When the prosecutor bends the rules to be lenient, it signals to the court that leniency is in order.
Andrew C. McCarthy — Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review. @AndrewCMcCarthy
National Review Online · by Andrew C. McCarthy · March 13, 2019