These columns have many times observed Deputy Attorney General Rod Rosenstein’s failure to set limits on Special Counsel Robert Mueller’s investigation. To trigger the appointment of a special counsel, federal regulations require the Justice Department to identify the crimes that warrant investigation and prosecution — crimes that the Justice Department is too conflicted to investigate in the normal course; crimes that become the parameters of the special counsel’s jurisdiction.
Rosenstein, instead, put the cart before the horse: Mueller was invited to conduct a fishing expedition, a boundless quest to hunt for undiscovered crimes, rather than an investigation and prosecution of known crimes.
That deviation, it turns out, is not the half of it. With Rosenstein’s passive approval, Mueller is shredding Justice Department charging policy by alleging earth-shattering crimes, then cutting a sweetheart deal that shields the defendant from liability for those crimes and from the penalties prescribed by Congress. The special counsel, moreover, has become a legislature unto himself, promulgating the new, grandiose crime of “conspiracy against the United States” by distorting the concept of “fraud.”
Why does the special counsel need to invent an offense to get a guilty plea? Why doesn’t he demand a plea to one of the several truly egregious statutory crimes he claims have been committed?
Good questions.
The Multi-Million-Dollar Fraud Indictments . . . and Penny-Ante Plea
On Thursday, February 22, with now-familiar fanfare, Mueller filed an indictment against Paul Manafort and Richard Gates, alleging extremely serious crimes. Let’s put aside for now that the charges have absolutely nothing to do with the stated rationale for Mueller’s appointment, namely, Russian interference in the 2016 election and possible Trump-campaign collusion therein.
According to the special counsel, Manafort and Gates conspired to commit more than $25 million in bank fraud. In all, the indictment charges nine bank-fraud counts, each carrying a potential penalty of up to 30 years’ imprisonment (i.e., 270 years combined). Furthermore, the two defendants are formally charged with $14 million in tax fraud (the indictment’s narrative of the offense actually alleges well over twice that amount). There are five tax-fraud counts, yielding a potential 15 years’ imprisonment (up to three years for each offense), against each defendant.
Mind you, this indictment, filed in the Eastern District of Virginia, is not a stand-alone. It piles atop an earlier indictment in the District of Columbia. That one, filed back in October, accuses Manafort and Gates of an eye-popping $75 million money-laundering conspiracy, a charge that carries a penalty of up to 20 years’ imprisonment.
The two indictments contain many other felony charges. But sticking with just these most serious ones, we can safely say that, on February 22, Manafort and Gates were portrayed as high-order federal felons who faced decades of prison time based on financial frauds in the nine-digit range. And while I have previously discussed potential proof problems for the money-laundering charge, proving bank fraud and tax fraud is comparatively straightforward. The indictment indicates that the evidence of these crimes is well documented and daunting.
Yet, the very next day, Friday, February 23, Mueller permitted Gates to plead guilty to two minor charges — a vaporous “conspiracy against the United States” and the process crime of misleading investigators, each carrying a sentence of zero to five years in jail. This flouted Justice Department policies designed to ensure that federal law is enforced evenhandedly across the nation.
‘The Most Serious Readily Provable Charge’
In plea negotiations, federal prosecutors are instructed to require that a defendant plead guilty to “the most serious readily provable charge consistent with the nature and extent of his/her conduct.” (See U.S. Attorney’s Manual, sec. 27.430.) In a properly functioning Justice Department, a defendant is not accused of over $100 million in financial fraud and then, within 24 hours, permitted to plead guilty in a wrist-slap deal that drops the major allegations and caps his potential sentence well beneath the penalties applicable by statute.
As outlined above, Mueller accused Gates of significant felonies totaling over 300 years of potential incarceration. Had the special counsel simply demanded a plea to a single bank-fraud count — the most serious statutory crime charged and, according to the indictment’s description, an offense that is readily provable — Gates would have faced up to 30 years’ imprisonment.
If, as all appearances suggest, Mueller’s goal is to get Gates to cooperate, such a plea, besides honoring Justice Department guidelines, would have provided plenty of incentive. Under federal law, the prosecutor does not need to sell out the case for a song to induce cooperation. The prosecutor can demand a guilty plea that reflects the gravity of the defendant’s actual offenses. Then, if the defendant cooperates fully and truthfully, the law permits the prosecutor to ask the judge to impose a sentence beneath the severe term that would otherwise be called for — a sentence of little or no jail time.
The Justice Department’s manual further admonishes prosecutors to refrain from guilty pleas that could “adversely affect the investigation or prosecution of others.” That is exactly what Mueller has done to the ongoing prosecution of Manafort. By giving Gates a pass on the bank-fraud (and tax-fraud, and money-laundering) charges, Mueller signals that these allegations are inflated. A jury could well feel justified in giving Manafort a pass on them, too.
By contrast, let’s imagine that Mueller had followed Justice Department protocols by insisting to Gates that nothing less than a guilty plea to the most serious readily provable charge — a 30-year bank-fraud count — would suffice. In his plea allocution, Gates would inevitably have implicated Manafort as his bank-fraud co-conspirator. Manafort would know that, were Gates to testify at trial, he would tell the jury that Manafort conspired with him in the bank-fraud scheme. That would markedly increase the likelihood that Manafort would be convicted of the bank-fraud charges. It would ratchet up the pressure on Manafort to plead guilty. It would help the investigation and prosecution.