But in this case, Deputy Attorney General Jeffrey Rosen intervened, forwarding to Manhattan District Attorney Cyrus R. Vance Jr. a letter from Manafort’s attorney suggesting that it would not be safe for Manafort to be held on Rikers Island. The result? Manafort will be housed at a federal penitentiary rather than going to Rikers. Should we really care?
Yes we should. If the decision was motivated by politics — and it is very hard to formulate a plausible alternative explanation — it’s an injustice in itself and an indication of rotten goings-on at the Justice Department.
Consider first the magnitude of the favor that the department provided Manafort. Any prisoner would greatly prefer incarceration in either of the two institutions where Manafort will remain to Rikers’ Island, which is a notorious hellhole. (Why Rikers continues to operate at all in its current state is a subject for another column.) Manafort would surely be kept in isolation for his own protection in Rikers, but the difference in the overall conditions at these facilities is enormous.
Now consider how rare it is that Manafort’s request was granted and the role that Rosen, the No. 2 official at the Justice Department, played in facilitating it. It is not simply unusual but unprecedented. I have canvassed colleagues with combined decades of service at the Justice Department, and to a person they aver that they have never heard of a similar situation.
That is not because prisoners don’t ask. It is, in fact, routine to field requests for placement in certain institutions; I did so regularly as a U.S. attorney. The standard-issue response is to let the defendant know that, by law, the decision was for the Federal Bureau of Prisons to make, and that at most, a Justice Department representative could transmit a recommendation.
Finally, consider the reasoning: A spokesman for the Justice Department said the decision was justified by Manafort’s “unique health and safety needs.”
This is bunk of the first order. No doubt Manafort is ill, and no doubt he requires special protection. But are his circumstances unique? Absolutely not. Manafort’s situation is not meaningfully different from dozens of others who are routinely, in fact invariably, resolved many levels below the deputy attorney general and in favor of state incarceration pending state trial.
So we have a one-of-a-kind decision, made at an unprecedented level and justified by fanciful reasoning. Some special factor was obviously at play. It is entirely possible that there were political implications in doing a good deed for Manafort.
It’s not hard to see what those implications might be. Manafort has been the closest thing to a stand-up wise guy in the Trump drama: He managed through squirrelly doublespeak to avoid giving special counsel Robert S. Mueller III the full book on President Trump, and he paid for it in added prison time.
In return, Manafort’s transfer makes it look as though Trump, or Attorney General William P. Barr channeling Trump, is showing him some love with a special favor nobody else ever gets. That’s good for Manafort in the immediate run, and at the same time, it would communicate even more strongly that the way to a pardon is continued noncooperation with federal authorities.
This is all very bad news coming from the Justice Department.
For starters, though we hardly remember this principle because it has been so thoroughly trammeled in the Trump years, it would be a serious breach of protocol if anyone at the White House even communicated with the Justice Department to urge special treatment for Manafort. Any such overture should have been immediately rebuffed.
If that didn’t happen, it would almost be worse because it would mean that the department acted out of subservience to the president’s political goals on its own motion. It is the antithesis of doing justice without fear or favor — rewarding a political ally of the president because he resisted pressure from the Justice Department.
The overall turning of tables could not be more dramatic. Manafort did his best to wriggle out from under the lawful Justice Department investigation of him and the president. Now that same department is acting as his friend, as well as the president’s friend; and friends look out for one another.
That suggests a final lesson from Manafort’s relatively sweet accommodations: Rosen, who was Barr’s handpicked choice, likely comes to the department with a staff that is already integrated with Barr’s. That happens in the case of particularly strong attorneys general. Barr is that, by virtue of his own force of character and his preeminent standing in the Trump universe. As long as Trump is president, Barr enjoys total dominion at the Justice Department. The department’s special treatment of Manafort illustrates why that state of affairs is so worrisome.