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Manhattan D.A. Cannot Prosecute Paul Manafort After Trump’s Pardon Due to Double Jeopardy

Manhattan D.A. Cannot Prosecute Paul Manafort After Trump’s Pardon Due to Double Jeopardy

Not so pardon-proof, eh?

President Donald Trump pardoned former campaign chairman Paul Manafort on Christmas Eve after a court found him guilty of tax fraud, bank fraud, and concealing his foreign bank accounts.

Manhattan District Attorney Cyrus Vance Jr. thought his case against Manafort could go forward. But the New York Court of Appeals, the state’s highest court, put a stop to the case.

The court decided not to review a lower court’s decision that Vance’s case against Manafort “violated the state’s double jeopardy law.”

Vance wanted Manafort to “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.”

Many thought Vance brought the charges on the chance Trump would pardon Manafort. He filed the charges in March 2020.

A New York State Supreme Court appellate panel with four judges decided in October that Vance’s 16-count indictment against Manafort violated the double jeopardy law:

The two-page order on Manafort’s appeal brusquely dismissed Vance’s arguments that the prosecution was permitted because the mortgage fraud and business records falsification charges were sufficiently different from a broad federal tax and bank fraud case special counsel Robert Mueller had brought against the longtime lobbyist and political consultant in 2018.

“The People failed to establish that the federal and state statutes, all of which were directed against fraudulent transactions, were designed to prevent very different kinds of harm or evil,” the appellate panel’s order said. “The statutory differences cited by the People fall far short of satisfying the ‘very different kinds’ test.”

Manhattan Supreme Court Justice Maxwell Wiley dismissed the $20 million mortgage fraud case against Manafort in December:

In the surprise decision, Manhattan Supreme Court Justice Maxwell Wiley sided with lawyers for President Trump’s one-time campaign manager, who have argued that Manafort has already faced charges for the same conduct in two federal indictments.

Vance’s prosecutors agreed that the state and federal charges “arose from the ‘same act or criminal transaction,’” Wiley’s written decision noted.

But the jurist ruled that the DA’s office failed to prove that several exceptions under double jeopardy law allowed for overlap in prosecution.

“The People have failed to establish that the harm or evil each statute is designed to prevent is very different in kind from the federal statutes for which the defendant was previously prosecuted,” Wiley wrote in his 26-page decision.


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the process was the punishment…

to him, to the country and to all of us.

we are no longer a nation of laws.

It’s good to see that some courts still refrain from double jeopardy prosecutions. I still remember the case of the cops who beat up Rodney King and were acquitted in state court, but re-tried and convicted in federal court.

I would like to hear some input from the legal scholars, but as I remember it, SCOTUS said someone can be tried multiple times for the same offense, as long as it’s in different courts: Federal court, State court, Municipal court, Traffic court, etc gives prosecutors multiple chances to get a guilty verdict. I’m thankful that New York won’t allow multiple trials, even if SCOTUS will.

    jakebizlaw in reply to OldProf2. | February 8, 2021 at 7:32 pm

    Speaking as someone who was a prosecutor in NY in the late 70’s, but never did criminal defense after that, I believe the basic federal constitutional rule is that the federal double jeopardy protection does not apply as between state and federal courts because they are independent sovereign systems. I believe NY enacted a statute (alluded to in these articles) that extended d.j. protection in its courts under certain circumstances but not all.

      In civil employment law, an employee can sue their employer in both fed and state court under the same facts: at the same time.

      DaveGinOly in reply to jakebizlaw. | February 8, 2021 at 9:48 pm

      The US Constitution, and most (if not all) state constitutions, say that a person can’t be put in jeopardy twice for the same offence. They do not say a person can’t be put in jeopardy twice for the same charge or statutory violation. The word used refers to the criminal acts themselves. Both the US Constitution and state constitutions are silent concerning the possibility that their authors’ intent was to limit the stricture to a consideration of only those courts under their respective control, so this can’t be presumed. The protection should be (and I think correctly so) interpreted as broadly as possible.

      “That is my opinion and if you don’t like it, I have others.”
      Groucho Marx

      That sounds the most likely. That its a state dj law not federal they were applying.

    NavyMustang in reply to OldProf2. | February 9, 2021 at 12:39 am

    I’m not a legal scholar, but…

    When I was the Executive Officer at a naval command, we had a Sailor who was arrested for domestic violence. Of course, we consulted with the local legal beagles and I remember that they told us that the Sailor could be tried in federal AND state courts. If he wasn’t held accountable by the state, and we believed we had the evidence to court martial, we had that option. It didn’t come to that, but the option was there.

      HImmanuelson in reply to NavyMustang. | February 9, 2021 at 12:47 am

      And did you fly P-51’s and pick up your nickname? 🙂

        NavyMustang in reply to HImmanuelson. | February 9, 2021 at 1:39 am

        I wish. No, a Mustang in the Navy usually refers to a commissioning program called Limited Duty Officer. Anyone chosen has to have at least 8 years enlisted service to apply. It was intended for Sailors who didn’t have a college degree, but we’re technical experts in their field.

        We were called Mustangs because of “the mustang horse, a feral animal and therefore not a thoroughbred. A mustang, after being captured, can be tamed and saddle broken but it always has a bit of wild streak, and can periodically revert to its old ways unexpectedly and therefore the owner needs to keep an eye on it at all times. However, since a mustang was formerly a feral and free animal, it may very well be smarter, more capable and have a better survival instinct than thoroughbreds.”

        Aren’t you glad you asked? 😉

          HImmanuelson in reply to NavyMustang. | February 9, 2021 at 2:03 am

          I am totally glad that I asked, that was a fun explanation to read. 🙂

          I knew it couldn’t be a P-51 because the timeframes didn’t line up, unless you were in your 90’s.

          Plus I didn’t think the Navy actually used P-51’s.

          HImmanuelson in reply to NavyMustang. | February 9, 2021 at 2:04 am

          Oh, and thank you for your service!

      Milhouse in reply to NavyMustang. | February 9, 2021 at 1:27 am

      Yes, it’s a NY state law that prevents him from being tried there. Most states don’t have such a law.

      gospace in reply to NavyMustang. | February 9, 2021 at 1:38 am

      There’s also the fact that the UCMJ has a lot of crimes that in CIVLANT aren’t crimes- or are no longer prosecuted anywhere in civlant. Adultery in the armed forces is still prosecuted and taken seriously as prejudicial to good order and discipline.

      And then there was the time I was ORDERED to write up a 20 year old sailor for underage drinking- and ordered not to leave the ship until I had done so. The order was screamed at me. So I went through the MCM (Manual for Court Martials) under the UCMJ article, and continued through lesser included charge to lesser included charge to lesser included charge- until there were no more, and the maximum punishment was 5 days restriction 5 days extra duty, and wrote it up exactly as the example given. Had the young sailor come in and sigh it, then handed it to the officer and went home- a few hours late on a Sunday. Monday after quarters I went to tell the COB about it. He already had heard. Only question he had was- “Are you going to follow up on it?” Nope, it was in the yeoman’s inbox, could stay there forever as far as I was concerned. And it did. There are always ways to manipulate the system.

        Brave Sir Robbin in reply to gospace. | February 9, 2021 at 10:59 am

        I knew a guy who was so adamant about getting out of the Navy that he, even though he was not a drug user, told his XO he was using illegal drugs and so had to be kicked out. The XO ordered the Sailor to take a drug test which showed no traces of any illegal substance. The Sailor was then reduced in rank for lying about his illegal drug use and given a special EVAL with his recommendation for advancement retracted but recommendation for retention affirmed.

        Be careful how you try and game the system.

This is actually a good sign. We all know the partisanship of New York’s judiciary but it is laying down the law in the Manafort case on principle knowing it isn’t the result they want while at the same time giving Tenney the seat she won.

This is encouraging.

Awwww, ain’t that a shame Cyrus can’t get his man. But he will try and find another way.

The New York Court of Appeals apparently did not receive the memo.

As I understand it NY is either unique or almost so in having such a law. Most states have the same rule as the US constitution, that trials by a different sovereign don’t count.

    gospace in reply to Milhouse. | February 9, 2021 at 1:40 am

    From what I understand the Democrat dominated legislature passed the no double jeopardy law to protect their own. They never suspected it would ever protect a Republican.

As I understand it, Mr. Manafort was allegedly involved in a number of different acts of fraud that happened in New York and other states. Some of his bad acts allegedly happened in Virginia. If this were true, why has there been no discussion of a prosecution outside of New York State?

    Brave Sir Robbin in reply to lawgrad. | February 9, 2021 at 7:30 pm

    “If this were true, why has there been no discussion of a prosecution outside of New York State?”

    Perhaps it’s not true. Or perhaps it is. No matter, because it would be preferable that victim of his alleged crimes make a complaint to law enforcement as a predicate to begin these investigations and subsequent prosecutions. To date, none have.

    Instead, the Department of Justice investigated him without proper predicate, and investigated, in turn, various business associates, and made threats of prosecution against those business associates to be held in abeyance if they testified in various ways as to the alleged misdeeds of Mr. Manafort, which, again, no one ever complained about prior to this unpredicted investigation. Therefore, we can assume the prosecution against Mr. Manafort was selective and motivated by interests other than the fair administration of justice. They needed to turn him to try and turn him against Trump. It was shameless and immoral.

    I am not saying the man is as pure as the driven snow. I am saying few of us could withstand that sort of selective in depth abusive and malicious investigation. There was no criminal complaint that served as a predicate for any of this. Further prosecution is abusive, dictatorial, unjust, and absurd.