Sidebars Five Year Anniversary: The Top Ten Posts

Five years ago today I published my first post on this blog, a piece about a New York Times reporter at risk of being held in contempt for refusing to identify a source. Sidebars has grown a lot since then and has been fortunate enough to gain some accolades along the way (including my favorite shout-out from the D.C. Bar Magazine: “Come for the ongoing smackdown with Alan Dershowitz, stay for the trenchant commentary on the rule of law”) . To mark this anniversary,  I thought it would be fun to take a look back at the Sidebars “Top Ten”: my ten most-read posts over the past five years.

During those five years I’ve written more than 120 posts on Sidebars, an average of about one every two weeks. My pace of posting on the blog has definitely slowed down over the past couple of years as I’ve been writing more as a contributing columnist for the Washington Post and working on an upcoming video lecture course on white collar crime for The Great Courses. But the blog continues to be a great vehicle for deeper dives on selected topics; at about 2500-3000 words, my average post on Sidebars is more than three times the length of a typical op-ed in the Post. Brevity may be the soul of wit, but it’s rarely a lawyer’s strong suit — and some of these subjects really do call for a more in-depth analysis.

As readers know, my focus on Sidebars is on white collar crime. The investigation by special counsel Robert Mueller was the most consequential white collar case in a generation, so it’s probably not surprising that a majority of my top posts related to that investigation. Other major white collar cases, such as the prosecutions of Virginia governor Bob McDonnell and New Jersey Senator Bob Menendez, also have been bountiful sources of material. But whatever else you might think of them, you can’t top the Mueller investigation and the Trump administration when it comes to providing material for commentators on white collar crime. These results definitely reflect that.

And with that – here are the Sidebars Top Ten.

#10: Fake News and the National Review

Andrew McCarthy of the National Review is a former federal prosecutor for the Southern District of New York. As a columnist, he’s been a vociferous critic of the Mueller probe and booster of president Trump. During the Mueller investigation he regularly wrote columns attacking the investigation that were so factually and legally off-base that it’s hard to believe he was once an Assistant U.S. Attorney. Now that Mueller is done, McCarthy is still at it, peddling pro-Trump conspiracy theories about Ukrainian interference with the election and the “Deep State” efforts to take down the president. In what became my tenth most popular post, I collected a number of the arguments from McCarthy’s columns about Mueller and showed how he was misleading his readers. I sent the post to the National Review, and I along with some other law professors on Twitter encouraged McCarthy and the National Review to respond, but they never did.

10) What Andrew McCarthy Gets Wrong about the Mueller Investigation – 3/22/18

 

#9: When is Lying a Federal Crime?

The False Statements statute, 18 U.S.C. 1001, is a workhorse in the white collar prosecutor’s stable. It broadly criminalizes material false statements made to the federal government, even if not under oath. A number of witnesses in the Mueller investigation, including Michael Flynn and George Papadopoulos, pleaded guilty to false statements for lying to the FBI during interviews. The statute applies to written false statements as well, and early in the Mueller investigation there was speculation that individuals including Jared Kushner and Jeff Sessions might be liable for concealing various foreign contacts when they filled out paperwork to apply for a security clearance. In this post I explained the scope and requirements of the false statements statute and how it potentially could apply in such a case.

9) Lying on a Security Clearance Form: The Crime of False Statements – 6/5/17

#8: The Dershowitz “Smackdown”

Harvard Law Professor Alan Dershowitz was a vocal critic of the Mueller investigation. For two years Professor Dershowitz was all over conservative media attacking the investigation and making sweeping arguments about executive power and presidential immunity from prosecution that frankly seemed increasingly unhinged.  I’ve written several different posts and articles rebutting Dershowitz’s claims.  The most popular blog post has been this one from June 2017,  taking on Dersh’s argument that the president can’t be charged with obstruction of justice because, well, he’s the president.

8) Trump and Obstruction: What Alan Dershowitz Gets Wrong – 6/19/17

#7: A RICO Review

The Mueller probe offered me several opportunities to write posts explaining the elements of leading white collar statutes and then illustrating them by discussing their potential application to the Mueller investigation. The False Statements post, number nine above, was one such example. Another one ended up as number seven on the list. It provides a primer on the Racketeer Influenced and Corrupt Organizations act (RICO) and then discusses how it potentially could apply to the matters that Mueller was investigating. Mueller, of course, did not end up pursing RICO charges against anyone, Russian or American. But we may not have heard the last of RICO and president Trump. Prosecutors in the Southern District of New York may be looking at possible RICO charges involving the Trump Organization. The SDNY is notoriously fond of RICO, and regardless of whether the other elements of the crime could be established, the Trump Organization is a classic RICO “enterprise.”

7) RICO and the Mueller Investigation – 1/16/18

#6: Fraud and the Sentencing Guidelines

My sixth most popular post is completely unrelated to Mueller. In 2015 the Federal Sentencing Commission revised the guideline used to calculate the sentence in federal fraud cases. That guideline is key to white collar practice because so many white collar cases involve fraud charges. The old guideline had come under a lot of criticism for the way it calculated white collar sentences, and reform was thought to be long overdue. In this post I discussed the changes made by the new fraud guideline and explained why those amendments really amounted to little more than tinkering around the edges.

6) The New Sentencing Guideline for Fraud Cases – 5/4/2015

#5: What’s This Blog About, Anyway?

I’m particularly pleased this post made it into the Top Ten. It deals with what seems like it should be a fairly simple and foundational question: what is white collar crime? If you look in the federal criminal code you won’t find a definition, or a section titled “white collar offenses.” In fact, there is no universally accepted definition of white collar crime, even though it clearly is recognized as a distinct practice area — not to mention as the subject of my law school class. This post, way back from only the second month of the blog, is my take on the definition and characteristics of white collar crime. One key takeaway?   — the name itself is something of a misnomer.

5) The Definition of White Collar Crime – 11/26/14

 

#4: Who Isn’t Guilty of That?

I wrote this post on Contempt of Congress back during the Obama administration, when the Republican Congress held the IRS Commissioner, Lois Lerner, in contempt. Prosecutors declined to pursue the case and that was the end of it, and the post lay largely dormant for a couple of years. But recently there has been renewed interest in Congress’s contempt power, in light of the apparent stonewalling of Congressional investigations by the Trump administration. And that has led to a lot of renewed interest in this post, catapulting it to number four on the list. Will Congress dust off its inherent contempt power and start locking up recalcitrant witnesses in that  rumored jail cell in the basement of the Capitol? We may soon see.

4) Contempt of Congress – 4/20/15

#3: Bribery and the Emoluments Clause

Since before president Trump even took office, there has been controversy about his extensive business holdings and whether he might profit from the presidency in violation of the Constitution’s emoluments clause. This relatively obscure Constitutional prohibition is now the subject of several ongoing lawsuits. My third most popular post, written after the election but before Trump was inaugurated, explained the foreign emoluments clause, how it relates to federal bribery law, and whether Trump was at risk of violating it.

3) The Emoluments Clause, Bribery, and President Trump – 11/29/16

#2: It’s Conspiracy, Not Collusion

In the early days of the Mueller investigation, a frequent refrain from the president and his supporters was that collusion with the Russians, even if it did take place, would not be a crime. I wrote this post early on in the Mueller investigation. It explained how, for criminal law purposes, the proper term is conspiracy, not collusion. It also described how allegations that the Trump campaign colluded with the Russians to influence the election, if true, could in fact constitute a conspiracy to defraud the United States — even if the conduct did not directly violate another criminal statute.

2) Yes, Colluding with Russians to Interfere with the Election is a Crime – 7/5/17

#1: “Collusion” is a Crime

My most popular post of all time — by quite a large margin — also dealt with the question of “collusion.” In February 2018 Mueller indicted thirteen Russian individuals and three Russian companies for engaging in a social media campaign to influence the 2016 presidential election. The lead charge in that indictment was a conspiracy to defraud the United States by impairing, obstructing, and defeating the lawful government functions of the Federal Election Commission, State Department, and Justice Department. This was the same legal theory I had outlined about six months earlier in my second most popular post, described above. One of the indicted Russian companies appeared in court and challenged that conspiracy charge. In November 2018 the federal judge in the case denied that challenge and upheld the conspiracy theory that effectively can make “collusion” a crime. My post describing that judge’s ruling, and the possible implications for the Trump campaign, because my most popular post of all time.

1) Judge in Mueller Case Upholds Legal Theory that Makes Collusion a Crime – 11/23/18

Thanks for indulging me in this look back.  Whatever the next years bring, I suspect there will continue to be no shortage of material. Thank you for reading!

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Paul Manafort’s Sentencing

President Trump’s former campaign manager Paul Manafort is headed to prison. At one time, Manafort seemed like the witness who might blow the lid off a conspiracy involving the Trump campaign and Russia. But Manafort’s cooperation deal fell apart when he lied to prosecutors, and he failed to deliver any Russian smoking gun. Now as he prepares to exit the stage, a controversy over Manafort’s sentence has shone a spotlight on issues surrounding sentencing disparity and the treatment of white-collar criminals.

Paul Manafort

Paul Manafort

Manafort’s Cases

Special Counsel Robert Mueller had indicted Manafort in two separate cases in Virginia and Washington, D.C. The charges included bank fraud, tax fraud, money laundering, and failure to register as a foreign agent. Manafort’s co-defendant and former right hand man Rick Gates pleaded guilty early on, cooperated with prosecutors, and testified against Manafort when the Virginia case went to trial.

A jury in the Virginia case convicted Manafort last August on eight felony counts: five counts of tax fraud, two counts of bank fraud, and one count of failing to report foreign account. They were unable to reach a verdict on ten other counts, reportedly due to a single holdout juror who was unwilling to find him guilty. Then in September, on the eve of his trial in the second case in D.C., Manafort pleaded guilty to two counts of conspiracy and agreed to cooperate with the Mueller investigation.

Manafort’s cooperation was seen as a potentially huge development in the Russia probe. He served as Trump’s campaign manager for five months during the critical spring and summer of 2016. He came to the campaign with extensive ties to Russia and Ukraine, and although he was deeply in debt, offered to work for free. He was the campaign manager during the Republican convention, when the party platform was mysteriously changed to be more pro-Russia on the question of Ukraine. He attended the infamous Trump Tower meeting in June of 2016 with Donald Trump, Jr., Jared Kushner, and Russians offering “dirt” on Hillary Clinton. If there was a conspiracy involving Russia and members of the Trump campaign, Manafort was in a position to know about it.

But Manafort blew it by repeatedly lying to Mueller’s investigators when he was supposed to be cooperating. They revoked his plea deal and informed the judge who, after a hearing, agreed with them that Manafort had been lying. As a result, he would not receive any credit for his cooperation, and both sides agreed that his two cases could move forward to sentencing.

Federal Courthouse, Alexandria VA

Sentencing in the Virginia Case

In the Virginia case, the federal sentencing guidelines called for Manafort to receive between nineteen and twenty-four years in prison. On Thursday, March 7, Judge T.S. Ellis III sentenced Manafort to only 47 months. This dramatic departure from the sentence called for by the guidelines provoked widespread outrage, at least among those on the left. Former prosecutors searched their memories, largely unsuccessfully, for examples of other cases where a judge had departed from the guidelines so dramatically.

In pronouncing the sentence, Judge Ellis said he thought the prison term called for by the guidelines was excessively high. That observation itself was not surprising. Not even Mueller’s prosecutors had pressed for a sentence within the guideline range. The fraud guidelines frequently have been criticized for resulting in inordinately high sentences in cases involving large dollar amounts. Criticism of the fraud guidelines led to a move by the Sentencing Commission to reform them in 2015. The amendments that were adopted at that time did some tinkering around the edges, but did not dramatically reduce the sky-high sentencing recommendations that still result in big-dollar cases.

Judge Ellis claimed he was trying to ensure that Manafort’s sentence was in line with those received by other defendants who committed similar crimes. He cited a number of other tax fraud cases and cases involving failure to report foreign bank accounts where even larger amounts of money were involved but the defendants had received sentences of only a couple years in jail or less.

Judges frequently impose a sentence less than that called for by the guidelines in a fraud case like this. I don’t think most informed observers really expected the judge to give Manafort anything like twenty years in prison – most expected maybe ten, twelve years, something like that. But Ellis’s decision to sentence Manafort to less than four years was shocking.

The Effect of the Sentencing Guidelines

There was a time when it would have been much more difficult for Judge Ellis to do what he did. From their enactment in 1987 through 2005, the federal sentencing guidelines were mandatory. Once the sentencing range was calculated, the judge was required to sentence the defendant within that range unless the judge could justify a downward departure on a basis recognized by the guidelines. Such departures were necessarily rare, lest they threaten to undermine the entire system of mandatory guidelines. A judge had to make specific findings that the case was truly outside the heartland of typical cases of that type or that some other extraordinary circumstance justified a sentence below the guidelines range. And even if they granted such a departure, that decision might be overturned on appeal.

That all changed after the Supreme Court’s 2005 decision in United States v. Booker. In Booker the Court held that the mandatory guidelines were unconstitutional because they deprived defendants of their Sixth Amendment right to have all facts that determine their sentence found by a jury beyond a reasonable doubt. The remedy adopted by the Court was to leave the guidelines in place but make them advisory rather than mandatory. Post-Booker, calculating a sentence under the guidelines is still the starting point in every federal sentencing, but judges now have far greater leeway to impose a sentence outside the guideline range.

A major purpose of the mandatory guidelines was to reduce sentencing disparity. Similarly situated criminals who committed similar crimes would receive close to the same sentence, regardless of where they were being sentenced or the identity of their judge. Now that the guidelines are merely advisory, some of the sentencing disparities that they sought to eliminate have crept back into the system. A recent study by the U.S. Sentencing Commission concluded that: “In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.” That certainly turned out to be true for Manafort in the Virginia courthouse.

Judge Ellis’s View of the Case

It was pretty clear early on that Judge Ellis did not like this case and is not a fan of the special counsel’s office. During a hearing on a defense motion to dismiss last May, he suggested prosecutors did not really care about Manafort’s crimes and had brought the case only so they could pressure Manafort to “sing.” During the trial, he repeatedly berated and criticized the prosecutors, so much so that some observers feared he might prejudice the jury against the case. He went out of his way again at the beginning of Manafort’s sentencing to note that, although he had denied Manafort’s motion to dismiss the case as outside the special counsel’s jurisdiction, “that doesn’t mean I decided the wisdom or appropriateness of delegating to special prosecutors broad powers.”

Part of the public anger over the Virginia sentence stemmed not only from its length but also from some of the judge’s statements. Judge Ellis’s comment during the sentencing that Manafort had lived “an otherwise blameless life” provoked particular outrage. Manafort’s tax fraud and other financial schemes went on for more than a decade. His career was spent representing some pretty unsavory foreign characters, so much so that his company was nicknamed the “torturer’s lobby,” all while failing to register as their lobbyist as required. Given the extent of his criminal conduct, the judge’s comment about his “otherwise blameless life” had a bit of the old, “Other than that, Mrs. Lincoln, how was the play?” feel to it.

Judge Ellis also noted his surprise that Manafort had not really expressed remorse for his crimes. But despite that lack of contrition, the Judge imposed a sentence that Manafort’s attorneys must have viewed as a huge victory.

The D.C. federal courthouse

D.C. Federal Courthouse

Sentencing in the D.C. Case

In the D.C. case, Manafort had been allowed to plead to two counts of conspiracy: conspiracy to commit financial crimes and conspiracy to obstruct justice. As in the Virginia case, the sentencing guidelines called for a sentence of nineteen years or more. But the statutory maximum sentence for conspiracy is five years, and the statute always trumps the guidelines. So as one benefit of his plea deal, Manafort’s sentencing exposure in the D.C. case was capped at ten years.

Back when the guidelines were mandatory, there would have been no suspense surrounding Manafort’s sentence: it would have been ten years. When the guidelines called for more than the statutory maximum, judges were required to get as close as possible to the minimum guideline level by sentencing the defendant to the statutory maximum.

But with the guidelines no longer mandatory, Judge Amy Berman Jackson, like Judge Ellis, was free to exercise more discretion. She sentenced Manafort to the full five years on the conspiracy to commit financial crimes, but ruled that half of that time could run concurrently with the Virginia sentence. She then gave him thirteen months on the conspiracy to obstruct justice, to run consecutively. The net effect was forty-three months on top of the Virginia sentence, which brings Manafort’s total to ninety months, or seven and one-half years.

Jackson’s view of the case and of Manafort was in stark contrast to those of Judge Ellis. She was extremely critical of Manafort’s behavior and suggested he was only remorseful that he got caught, not for his criminal acts. Rather than an “otherwise blameless life,” she observed that Manafort’s entire career had involved misconduct and “gaming the system.”

Nevertheless, Judge Jackson ruled that some of Manafort’s sentence should run concurrently to his Virginia sentence because the conduct in the two cases overlapped. And as to obstruction, she apparently concluded a more lenient sentence was in order because the attempted witness tampering was relatively tentative and had not actually succeeded.

The Sentencing Outcomes

I don’t have much quarrel with Judge Jackson’s sentence in the D.C. case, which seems like a careful attempt to balance the competing factors. But Judge Ellis’s sentence in the Virginia case seems unjust. The guidelines exist for a reason, to try to ensure that similar cases result in similar sentences. Some reduction was probably warranted, but such a dramatic departure from the sentence called for by the guidelines does not promote respect for the justice system.

The tradeoff in sentencing is always discretion versus disparity. With non-mandatory guidelines, the individual judge has a great deal of discretion. Many times that is viewed as a good thing – historically, the role of the judge has been to exercise wisdom, compassion, and good judgment in fashioning the sentence appropriate to a particular defendant in a particular case. Many judges chafed at the mandatory guidelines, which one federal judge once complained to me had reduced him to an “accountant” when it came to sentencing – just adding up the numbers from the guidelines table. And many on the left who were calling for blood when it came to Manafort have been happy that judges are now able to deviate from sometimes harsh guidelines sentences in other cases.

But discretion comes at the cost of disparity. Judges are human. They make mistakes, have their own life experiences, their own views about criminal justice, even their own prejudices. To the extent sentencing is left to the judge’s discretion, those personal traits can influence sentencing decisions. And that can result in a system where the sentence a defendant receives may depend far too often on which judge ends up assigned to his or her case.

On the other hand, when it comes to Manafort, seven years in prison for a sixty-nine year old man in poor health is not exactly a walk in the park. I don’t think people should underestimate the severity of the impact it will have on him. Nevertheless, his sentence has prompted outrage when compared to sentences imposed on many other defendants who are not rich, powerful, or white, even when their conduct appears less serious. Hopefully the controversy surrounding Manafort’s sentence will help further the current debates about criminal justice reform and sentencing policies. The proper response to Manafort’s sentence may be not, “Why did he get so little time,” but rather, “Why do others get so much?” In a country that locks up people at a higher rate than any other country in the world, that’s a discussion worth having.

In the meantime, shortly after Manafort was sentenced in D.C., the New York State Attorney General indicted him on sixteen counts of mortgage fraud and related charges. The case is widely seen as a sort of “pardon insurance policy,” because president Trump has no power to grant pardons for state crimes. The charges will no doubt be challenged based on New York’s law against double jeopardy. But for now it appears that Manafort’s legal woes are not over, and there could be even more jail time in his future.

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