Paul Manafort's sentencing this week will finally answer not just how long he will have to serve after convictions in two cases but whether, at his age and in diminished health, he is likely to survive a prison term. For special counsel Robert Mueller, the sentencing will also answer a more provocative and embarrassing question: Did Manafort play him?
I raised that question months ago when Manafort pleaded guilty in his Washington, D.C. case after being convicted on eight counts in Virginia. The Virginia counts were the better counts for Manafort. While the prosecutors in Virginia paraded Manafort’s insatiable greed and opulent lifestyle, including his now famous ostrich jacket, it was the D.C. case that would expose Manafort’s sinister associations with corrupt and criminal elements in the Ukraine. The trial would have been a parade of horribles, which would have made a presidential pardon all the more difficult to secure.
Manafort however was able to secure a surprising deal from Mueller. The seven counts in D.C. were reduced to two counts with five-year maximum sentences. Most importantly, Manafort avoided a trial and the need to answer specific charges on his years of corrupt dealings. According to Mueller, Manafort then proceeded to lie and withhold full cooperation while his lawyers maintained a back channel communication to the Trump legal team. Indeed, the filing leading to the loss of the plea deal suggested that Manafort was feeding the Trump team intelligence on the questions and evidence being pursued by Mueller.
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Prosecutors are used to a certain degree of Monday-morning quarterbacking on plea deals. However, this question is easier to answer than most. It comes down to a number. Manafort was given an absurdly low sentence by Judge T.S. Ellis III. Ellis even went as far as to say that Manafort has led a largely “blameless life” — producing a certain confusion on whether Manafort has an evil twin responsible for years of notorious practices. Then he gave Manafort a sentence on eight serious felony counts that rejected not just the special counsel’s recommendation of up to 25 years, but the recommendation of his probation officer. It was particularly baffling after Manafort reportedly came within one juror of losing on every count — all 18 counts — in Virginia.
Trump could commute a short sentence
The Ellis sentence now leaves Manafort with a maximum sentence of 10 years from the two cases. Judge Amy Berman Jackson is certainly less enamored with Manafort after she stripped him of the benefit of his plea deal and previously ordered him jailed pending trial. However, these counts usually run concurrently and for a first offender it is relatively rare to see a maximum sentence. That could mean just five years — a roughly one-year addition to the sentence. If that is the sentence, Mueller most certainly was played by Manafort.
Of course, Jackson is a tough judge and former prosecutor who is well aware of the situation. She could hit Manafort with a 10-year sentence that could easily prove a terminal term for the ailing 70-year-old inmate.
A five-year term would vindicate Manafort’s counsel and their unconventional tactics. The team barely put on a defense in Virginia on the merits. Instead, it attacked the cooperating former aide to Manafort, Rick Gates, and seemed to continually repeat the Trump talking points that there was no collusion. Indeed, lead counsel Kevin Downing not only emphasized the no collusion point at the time his client was charged but returned to that mantra after the sentencing. It was a line that clearly benefited (and pleased) President Donald Trump, but had little relevance to his client except as an obvious play for a pardon.
If Manafort is below five years in his final sentence, Trump could opt to commute all or part of that sentence on the basis of Manafort’s health. Indeed, he could cut it in half on a commutation and argue that he is leaving Manafort as a convicted felon who would have served at least half of his sentence. Not only that but Manafort is still able to keep millions and, while giving up much of his ill-gotten gains, he will be returning to a lifestyle that most Americans can only fantasize about. The possibility of Manafort being shown at some opulent restaurant in his ostrich jacket and signature smirk would make a mockery of the investigation. His filmmaker daughter, Jess Bond, might even change her name back to Manafort.
Special counsels seek truth, not trophies
For Mueller, a less than five-year sentence would leave him in a position that no prosecutor relishes: he would look cuckolded and comical. In reducing the counts to two and bringing Manafort under his tent, he may have given the Trump team badly needed intelligence while limiting Manafort's exposure. Worse yet, while Mueller has raked up a lot of pleas and convictions, he is hardly swinging for the fences.
While the media loves to cite convicted counts to throw praise at Mueller and shade at Trump, most have little to do with either Trump or Russian collusion. Most of the key players have received relatively light sentences — including just a month or so for figures like Alex van der Zwaan and George Papadopoulos. Other than the Russians who are unlikely to ever see the inside of a U.S. courtroom, the crimes are largely for unrelated transactions crimes, false statements, or registration crimes.
Now Mueller’s matinee defendant could receive a light sentence of roughly 5-7 years after a massive investigation and millions in legal costs. If that occurs, Manafort will only have clowns like Roger Stone left in the pipeline and a president who cannot be indicted in office absent a change in Justice Department policies.
Of course, special counsels should be truth seekers, not trophy seekers, and Mueller is a serious and ethical professional. However, we still do not know what Mueller will offer in a report or what will be left beyond its conclusions after its confidential submission to the attorney general. In other words, Manafort may not be the only one looking for vindication from Judge Jackson on Wednesday.
Jonathan Turley, a member of USA TODAY's Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley
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This article originally appeared on USA TODAY: Did Paul Manafort outmaneuver Robert Mueller? His sentencing Wednesday will tell.