Mueller charges are “enigmatic” and “mystifying”? No, he is strategizing around Trump’s pardons.

Some have wondered: “Why is Mueller bringing so few charges against Papadopoulos and especially Manafort?”

Papadopoulos is easy. Mueller has charged him with one charge of false statement, even though there are a dozen other felonies clearly suggested by the plea stipulations. The quick answer is that Papadopoulous has agreed to be a cooperating witness in exchange for a very short sentence. The maximum sentence for false statement is five years. If Papadopolous cooperates, Mueller can ask for a short sentence, but if he doesn’t, Mueller can add new charges.

Manafort’s case is less obvious. Andrew McCarthy at the National Review is puzzled about Mueller’s charges for Manafort, calling it “mystifying and enigmatic” that he leaves out so many possible charges, including tax fraud and other forms of fraud. After reading the Papadopoulos plea agreement, and knowing that Manafort is the unnamed “high ranking campaign official” in a series of incriminating emails, one might imagine a dozen other charges Mueller might be mulling.

McCarthy speculates that Mueller did not charge federal tax fraud because those prosecutions require the involvement of the DOJ Tax Division, which would have been an extra bureaucratic hurdle. I’d add that Mueller might have worried that any contact with main DOJ carried a risk of leaks or obstruction. But for the other potential charges, McCarthy writes, “These [other] omissions do not make sense to me.”

Mueller’s moves may make strategic sense because of a shadow hanging over the entire investigation: the presidential pardon power.

Mueller knows that Trump can pardon Manafort (or any defendant) in order to relieve the pressure to cooperate with Mueller and to keep them quiet. But Mueller also knows that presidential pardons affect only federal crimes, and not state crimes. On the one hand, “double jeopardy” rules under the Fifth Amendment prevent a second prosecution for the same crime, but the doctrine of dual sovereignty allows a state to follow a federal prosecution (and vice versa). So in theory, Manafort and Papadopolous can’t rely on Trump’s pardons to save them, even after a conviction or a guilty plea.

But in practice, state rules can expand double jeopardy protections and limit prosecutions. In fact, New York is such a state. New York is the key state for Mueller, because New York has jurisdiction over many Trump/Russia crimes (conspiracy to hack/soliciting stolen goods/money laundering, etc.), and Attorney General Eric Schneiderman and NY district attorneys are not politically constrained from pursuing charges.

New York’s Criminal Procedure Law 40.20 states, “A person may not be twice prosecuted for the same offense.” The issue is that New York defines “prosecution” broadly. As William Donnino explains in his commentary on the law, jeopardy attaches (i.e., state prosecutors may not bring charges) when earlier charges “(1) terminate in a conviction upon a plea of guilty, or (2) if the action proceeded to trial by a single judge, that a witness is sworn, or (3) if the action proceeded to trial by jury, that a jury has been impaneled and sworn. See Willhauck v. Flanagan, 448 U.S. 1323, 1325-26, 101 S.Ct. 10, 12, 65 L.Ed.2d 1147 (1980) (federal constitutional jeopardy attaches when a jury is empanelled and sworn, or in a single judge trial, when the first witness is sworn); Crist v. Bretz, 437 U.S. 28, 37 n.15 and 38, 98 S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978). … Thus, jeopardy attaches prior to a final judgment. Even with respect to a plea of guilty, jeopardy attaches upon the plea; it does not await imposition of sentence [see also CPL 1.20(13) defining “conviction” to mean the entry of a plea of guilty].”
The bottom line: If Mueller starts a trial on all of the potential charges, and then Trump pardons Manafort, Mueller will not be able to hand off the case to state prosecutors. And thus he would have lost leverage at the time of the indictment if he seemed headed towards losing the state prosecution as a back-up. Instead, Mueller wisely brought one set of charges (mostly financial crimes that preceded the campaign), and he is saving other charges that New York could also bring (tax fraud, soliciting stolen goods, soliciting/conspiring to hack computers). Mueller also knew that his indictment document on Monday would include a devastating amount of detail on paper, without relying on any witnesses to testify, showing Mueller had the goods on a slam dunk federal money laundering case. Then he dropped the hammer with the Papadopoulos plea agreement, showing Manafort and Gates that he has the goods on far more charges, both in federal and state court. Manafort is the unnamed “high ranking campaign official” in various incriminating emails discussed in the Papadopoulos plea stipulations. Once Papadopoulos conceded that Russian representatives told him they had “dirt,” in “thousands” of Clinton’s emails in April 2016, it is clear that prosecutors could start building a case of conspiracy and solicitation of illegal hacking and trafficking in stolen goods against campaign officials Papadopoulos may have informed, as well.

I discuss some of the parallel state felony charges in this Slate piece (also published in Just Security). In August, sources revealed that Mueller was already coordinating with Schneiderman, likely to work out this strategy. I also note that all of this legal background is relevant to solve an additional problem: If Trump fires Mueller, state prosecutors can carry on with his investigation and prosecutions based on parallel state laws (trafficking stolen goods, soliciting/conspiring in computer hacking, money laundering, tax fraud, etc.).

This same strategy adds an explanation for the single Papadopoulos charge. I explained above that a single charge is a classic part of plea deal for cooperation. But Mueller can be saving a number of other charges, both in his own back pocket to incentivize cooperation, and also for the front pocket of state prosecutors in case Trump gives Papadopoulos a blanket pardon. Mueller is a stone-cold professional.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

8 thoughts on “Mueller charges are “enigmatic” and “mystifying”? No, he is strategizing around Trump’s pardons.”

  1. Wouldn’t a pardon of an accomplice be dangerous for Trump because it would remove any 5th Amendment privilege the pardonee could otherwise invoke? If someone’s been pardoned, I’d imagine she can’t incriminate herself, and so can be compelled to testify — not unlike if she were granted immunity. Is this the case?


  2. Can the president pardon state level offenses as well as federal? What’s to stop Trump from just pardoning charges brought in state courts?


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