Manafort Can’t Be Prosecuted in New York After Trump Pardon, Court Rules

Jonah E. Bromwich for New York Times

February 08, 2021

Originally published in New York Times on February 08, 2021.

The Court of Appeals let stand a lower-court ruling that the Manhattan district attorney’s prosecution of Paul Manafort was barred by the double jeopardy rule.

The Manhattan district attorney’s attempt to prosecute former President Donald Trump’s 2016 campaign chairman was dealt a final blow when New York’s highest court said quietly last week it would not review lower court rulings on the case.

The court’s decision brings to an end the district attorney’s quest to ensure that the campaign chairman, Paul J. Manafort, will face state charges for mortgage fraud and other state felonies, crimes similar to those for which he was convicted in federal court and then pardoned by Mr. Trump.

When the district attorney, Cyrus R. Vance Jr., a Democrat, first brought charges against Mr. Manafort in March 2019, it was widely understood that he was doing so to make sure that Mr. Manafort would face prosecution even if Mr. Trump decided to pardon him.

At the time, Mr. Manafort was serving a sentence of seven and a half years in a Pennsylvania federal prison after being convicted at a 2018 financial fraud trial by prosecutors working for the special counsel Robert S. Mueller III.

In October, a New York appeals court found that Mr. Vance’s efforts to try Mr. Manafort violated the state’s double jeopardy law. Mr. Vance took the case to the Court of Appeals.

Then, in December, Mr. Trump did pardon Mr. Manafort, 71, who had been released to home confinement in Northern Virginia, after his lawyers argued that he was at risk of contracting the coronavirus.

A lawyer for Mr. Manafort, Todd Blanche, said that he had received the high court’s one-paragraph decision Monday and that he was happy with the ruling. “Mr. Manafort is similarly pleased with the result,” he said.

A spokesman for Mr. Vance’s office declined to comment.

The charges that Mr. Vance brought against Mr. Manafort were the result of an investigation, started in 2017, into loans the campaign chairman had received. Mr. Vance ultimately accused Mr. Manafort of having falsified business records in order to obtain the loans.

At the time, Mr. Vance said that Mr. Manafort had not “been held accountable” for the charges at hand. But in a ruling in December 2019, a judge threw out the charges, finding that they violated the double jeopardy law, which says a defendant cannot be tried twice for the same offense.

The judge, Justice Maxwell Wiley, said at the time that “the law of double jeopardy in New York State provides a very narrow window for prosecution.”

Mr. Vance’s office has taken action against other associates of Mr. Trump whom the former president has pardoned in federal cases. Last week, The New York Times reported that Manhattan prosecutors had opened an investigation against Stephen K. Bannon, a former White House strategist who was pardoned by Mr. Trump during the president’s final hours in office.

But the double jeopardy defense is unlikely to help Mr. Bannon in the same way it helped Mr. Manafort, because Mr. Bannon had not yet been tried, let alone convicted.

“The basis for the prosecution being improper doesn’t in any way apply to Mr. Bannon as far as I can tell,” Mr. Blanche said.

While the U.S. Constitution bars being tried twice for the same crime, the Supreme Court has long held that there is one exception: Federal and state prosecutions for the same conduct are allowed because the federal government and states are understood to be independent sovereigns. In 2019, the court affirmed that exception.

That year, the state legislature in New York passed a measure that lawmakers argued was necessary in order to check Mr. Trump’s pardon power and to ensure that his associates were not permitted to escape justice. The law, signed by Gov. Andrew M. Cuomo in October 2019, allows state prosecutors to pursue charges against individuals who have been granted presidential pardons for similar crimes.

State Senator Todd Kaminsky, a Democrat and former federal prosecutor who sponsored the bill, said that the Manafort case drove home the need for the legislation.

“It really underscored why we had to take legislative action that we did so that states can pursue their own path even if there is a federal pardon,” he said. The law would make it easier for state prosecutors to pursue those on Mr. Trump’s pardon list.

The law passed too late to apply to Mr. Manafort’s case. The result, Mr. Kaminsky said, was that Mr. Vance’s office had to contort itself to try to show that the acts that Mr. Manafort had been charged with in federal court were not the same as those they were pursuing.

It is possible, though unlikely, that Mr. Manafort may still face federal charges. Last month, Andrew Weissmann, a former prosecutor from the special counsel’s office, argued that the wording of Mr. Trump’s pardons had been “oddly” drafted.

Rather than relieving those who had been pardoned from all potential liability for their actions, Mr. Weissmann argued, the language only narrowly covered their convictions.

In Mr. Manafort’s case, that might leave the door open to new charges, including on crimes that Mr. Manafort admitted he was guilty of as part of a plea deal. Those include 10 counts of financial crimes, as well as other offenses.