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Manafort Sentence Shows Judges' Clout Over Special Counsel

By Diana Novak Jones · March 8, 2019, 10:35 PM EST

A Virginia federal judge's sentencing of President Donald Trump's former campaign chairman Paul Manafort to just under four years in prison — despite calls for a nearly 25-year term — is a reminder of just how much power judges have over the closely watched special counsel's investigation, experts told Law360.

Thursday marked the first of two scheduled sentencings for Manafort for his two different criminal cases. But while U.S. District Judge T.S. Ellis III's ruling resulted in a dramatic deviation from prosecutors' recommendation of roughly 19 to 24 years, things could go very differently when Manafort appears before the second judge next week, according to several former federal prosecutors.

In August, a Virginia federal jury convicted Manafort on eight counts of bank fraud and tax fraud, including one count of failure to disclose foreign bank accounts. The charges were related to Manafort's efforts to hide millions he earned doing political consulting work for former Ukrainian President Viktor Yanukovych and Yanukovych's pro-Russia political party.

Judge Ellis said Thursday that a sentence as steep as that sought by prosecutors would create an unwarranted disparity between Manafort's convictions and similar cases. And Manafort was not there to be sentenced on anything related to alleged collusion between the Trump campaign and the Russian government during the election, the target of the special counsel's investigation, the judge said.

While Judge Ellis said he was surprised that Manafort did not express regrets about his behavior, the 47-month sentence was appropriate because Manafort had lived "an otherwise blameless life."

Peter Zeidenberg, a partner in Arent Fox LLP's white collar practice and a former federal prosecutor who served as a deputy special counsel in the investigation of Lewis "Scooter" Libby, called Judge Ellis' comment about Manafort's life "absurd."

The accusations against Manafort span a decade, and while under indictment for the fraud, he's accused of continuing to commit crimes, Zeidenberg said — referencing Manafort's alleged attempts to influence witnesses in his cases in early 2018.

"As a white collar defense attorney, we represent people all the time where their behavior truly was aberrant, and truly was out of the norm for them," he said. "Our clients still get often far longer sentences than we think are appropriate, and to hear [Judge Ellis] say of a guy who is engaged in illegal conduct that goes back for so many years ... to say you led an 'otherwise blameless life' is just galling."

No one picked up the phone in Judge Ellis' chambers on Friday evening when Law360 reached out for comment.

But, Zeidenberg acknowledges, the sentence was entirely up to Judge Ellis' discretion. For white collar crimes like Manafort's and others that might come out of the special counsel's investigation, there are no mandatory minimums — so the judge is bound only by the statutory maximums, he said.

Ryan Hedges, a partner at Vedder Price PC and a former federal prosecutor, said judges have "almost unfettered discretion" when they're reviewing a defendant's history and characteristics.

Speaking from the American Bar Association's Annual National Institute on White Collar Crime, which was earlier this month in New Orleans, Robert Litt, a former general counsel for the Office of the Director of National Intelligence who is currently of counsel at Morrison & Foerster LLP, said there was a general consensus among white collar defense attorneys that "the extent of the deviation is highly unusual."

The impact of that deviation in Manafort's case will play out as special counsel prosecutors attempt to convince others to cooperate and help them pursue what are likely complicated white collar schemes, Hedges said. Manafort went to trial and fought the allegations every step of the way, even going so far as to lie to the government after agreeing to cooperate, Hedges said.

It's "really troubling from the government's perspective the total lack of incentive that it provides to others to cooperate," Hedges said of the sentence, adding that those concerns might push the government to appeal Judge Ellis' ruling.

And other attorneys representing people caught up in the special counsel's probe will likely point to Manafort's sentence as evidence their client should receive similar leniency, Litt said.

But Hedges, Litt and Zeidenberg all said that Judge Ellis' ruling in Manafort's case was an outlier that shouldn't be interpreted as a prediction of how other criminal indictments from the special counsel's office could end up, or how U.S. District Judge Amy Berman Jackson will rule at Manafort's sentencing in a parallel D.C. case scheduled later this month.

Not long after the Virginia jury handed down their verdict, Manafort pled guilty to two counts of conspiracy and obstruction of justice in September before Judge Jackson. Those charges accuse Manafort of acting as an unregistered lobbyist for Ukraine, in violation of the Foreign Agents Registration Act, and attempting to hide the money he earned.

It was Judge Jackson who ordered Manafort taken into custody in June after finding he had attempted to tamper with witnesses while awaiting trial. And last month, the judge ruled that Manafort had violated his plea agreement by lying to federal investigators and a grand jury after agreeing to cooperate.

Like Judge Ellis, Judge Jackson has more or less absolute discretion over her sentence. She can legally give Manafort up to 10 years in prison, according to court records, and can decide if he will serve the sentence at the same time as his 47-month term, or immediately afterward.

Judge Jackson is also overseeing another indictment to come out of the special counsel's office: the criminal case against Roger Stone, a former Trump adviser who is facing charges of obstruction, false statements and witness tampering in conjunction with Russian interference in the 2016 presidential election.

Knowing how Judge Ellis' sentencing went, it's fairly likely Judge Jackson will choose to have Manafort serve his second sentence consecutively, both Zeidenberg and Hedges said.

While she must sentence Manafort based on the facts of the case before her, she can consider how Judge Ellis' sentence fits with the time she gives in determining the right punishment, Litt said.

"She knows a hell of a lot more than any of us do out in the public," Zeidenberg said. "I think she would find this conduct on the outer extreme," he said.

--Additional reporting by Christopher Cole, Chuck Stanley, Bryan Koenig, Mike LaSusa, Jody Godoy and Carolina Bolado. Editing by Emily Kokoll and Michael Watanabe.

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