Harry Litman teaches constitutional law at the University of California at San Diego and practices law at the firm Constantine Cannon. He was U.S. attorney for the Western District of Pennsylvania from 1998 to 2001 and deputy assistant attorney general from 1993 to 1998.
Special counsel Robert S. Mueller III’s blockbuster week culminates Friday in the expected filing of two much-anticipated memorandums advising the court on matters related to the sentencing of Paul Manafort, President Trump’s onetime campaign chairman, and Michael Cohen, Trump’s longtime lawyer and personal fixer.
Judging from the equally anticipated submission earlier this week in the Michael Flynn case — in which Mueller said Flynn’s assistance in at least three cases had been substantial enough to merit a non-jail sentence — Friday’s memorandums will surely conceal more than they reveal. Extensive material will likely be redacted to protect ongoing investigations and as-yet-uncharged defendants.
But as with the Flynn memo, careful observers will be able to glean important information about where Mueller is headed and, possibly, what he already has determined about Trump’s involvement in unseemly or criminal conduct.
In particular, look for clues as to how Mueller decided to approach three complicated issues.
First, as to the court-ordered memo in Manafort’s case, we already know Mueller’s main mission. The special counsel’s office previously advised the court, in pointed terms, that Manafort had reneged on his plea agreement and, more, had both lied repeatedly and committed additional crimes in his cooperation sessions. The bluntness and assuredness of this notification indicate, one, that Mueller’s office was irate, and, two, that it has detailed evidence it believes proves Manafort’s dishonesty beyond a reasonable doubt. The purpose of the memo is to present that evidence to the court.
But that presents a vexing problem. Although the filing may redact sensitive information, Manafort, who maintains that he did comply with his obligation to be truthful, is entitled to review it in unredacted form and respond. And we now know that, incredibly, Manafort was acting as a double agent during his cooperation sessions, passing along to the president through the two men’s lawyers information about what Mueller was asking.
At this point, Manafort appears to be beyond the power of the court to control. He already is facing a sentence that almost certainly will keep him in prison for life, absent a pardon from the president. Indeed, even with a pardon, it is likely he will serve out his life in state prison for state crimes, the conduct for which he already has admitted to as part of his plea agreement and that are beyond the president’s power to abnegate. Moreover, he seems beyond the reach of social pressure; he did not even attend his last hearing. Thus, all the normal tools a court might use to enforce compliance — stern lectures from on high, shaming remonstrations, additional prison time, alterations in conditions of confinement — appear to have no power to shape Manafort’s conduct.
What, then, might Mueller propose to try to prevent Manafort from simply passing on the critical information in the memo to the president’s team? Perhaps he might ask the court to ride strict herd on Manafort’s and the president’s lawyers, who, again incredibly, were the conduits of the improper transmission of information to date. Perhaps it might be possible to order Manafort not to pass along information in the memo and impose 24/7 surveillance to enforce the order, though such a measure and other restrictions could be problematic constitutionally. The problem seems near-insoluble; yet it is equally implausible to imagine that Mueller will simply stand down and accept the prospect of having Manafort pass along some of his most valuable evidence to the president.
The special counsel’s sentencing memo for Cohen, which apparently comes before the fruits of his cooperation have played out, presents two further windows onto Mueller’s thinking and work to date. Cohen has obviously given quite a bit of information about the possible criminal conspiracy to pay off Stormy Daniels and Karen McDougal to prevent their allegations of affairs with Trump from damaging the campaign. Likewise, it is probable that Cohen, who has become a zealous antagonist of his former client and idol, has provided chapter and verse about any financial misdeeds within the Trump Organization dating back years.
However, Cohen also appears to have played a discrete but important role in the overture to Russia for Trump’s dream Moscow tower. Along with childhood friend Felix Sater, Cohen pursued the project until June 2016, well after Trump was publicly denying any interest. As Mimi Rocah and I recently wrote, Trump’s conduct here could have amounted to a conspiracy to commit bribery — bribery being one of the identified impeachable offenses in the Constitution.
So the first thing to look for in Mueller’s memo in Cohen’s case is whether the special counsel identifies Cohen’s assistance on any matters involving Russia, or limits his presentation to the Daniels scandal and other domestic issues. If Mueller reveals that Cohen has been cooperating on possible crimes involving Russia, that is very bad news for Trump.
Finally, it will be significant to see what degree of leniency in regard to Cohen’s sentence Mueller recommends. On the one hand, Cohen has apparently been an open book in his more than 70 hours of interviews with Mueller’s office. On the other, and in contrast for example to Flynn, Cohen was late to cooperate and did so only after a few false starts and foolish stunts in the media. Will Mueller overlook these irritations in light of the overall value of the cooperation? I predict not: Look for Mueller to recommend a substantial reduction but not to a non-jail custodial sentence, as he did with Flynn. Mueller is both a stickler for the rules and keenly conscious of fair treatment among defendants: That translates here into a much-reduced, but still meaningful, sentence for Cohen.