Manafort, state crimes, and double jeopardy (Long).
With Trump’s hinting that he’ll pardon Manafort (and leaving aside the very significant developments occurring today involving Michael Cohen), there has been a fair amount of discussion of the potential for Manafort to be tried separately in one or more state courts for actions that Manafort either was found guilty of or, in his plea deal with Mueller, admitted having taken. I’ve tried to address this issue a piecemeal but my posts have not been very clear or comprehensive, so I thought I’d try to spell out the extent to which Manafort is at risk of state law prosecution and the ease or difficulty a state would face bringing a prosecution based on Manafort’s admissions.
First, and foremost, one thing that everyone agrees on is that Trump cannot directly pardon Manafort for state law crimes.
However, the bigger issue is to what extent could Manafort, whether pardoned or not, claim protection from state law prosecution by citing the Constitution's “double jeopardy” clause. That question raises a complex set of issues and could result in a different outcome in different states.
Generally described, the protection against double jeopardy prevents someone from being prosecuted for the same criminal activity twice. And, generally described, two criminal prosecutions are considered to be covered by the double jeopardy provision when the crime being charged in both involves the same “elements” or the same “ultimate fact”. The interpretation and application of those concepts is often a source of dispute and can vary from state to state or even case to case.
Manafort has been found guilty of, or entered into a plea agreement admitting guilt, to a variety of federal crimes, including filing false federal tax returns, bank fraud (involving Citizens Bank and Banc of California relating to New York properties), conspiracy to obstruct justice, and conspiracy to engage in money laundering, tax fraud, failure to file Foreign Bank Account reports, violations of the Foreign Agents Registration Act, and lying to DOJ. Cohen also has admitted, essentially, to the facts underlying an additional seven counts of bank fraud and conspiracy to commit bank fraud that the jury in the Eastern District considered but couldn’t decide (resulting in a hung jury).
The actions underlying many of the crimes that he was found guilty of or plead guilty to probably do not violate any state laws, with two exceptions: the bank fraud/conspiracy to commit bank fraud charges and the filing of false federal tax returns (which would translate into a charge of filing false state tax returns).
To what extent does double jeopardy protect Cohen from being charged in state court for bank fraud or filing a false state court return? My guess is that he' s probably not protected at all from being charged (probably in New York) with filing a false state tax return; however, one can't completely rule out his being able to argue that the underlying facts supporting the federal false tax return convictions are so close to the facts supporting a state false tax return charge that the one should preclude the other. Personally, I think that’s probably a loser argument for Manafort.
Beyond that, it gets even less clear. As a constitutional matter, the Supreme Court has interpreted the double jeopardy provision as not applying where one prosecution is brought by the federal government and one prosecution is brought by a state government (the “separate sovereigns” exception.) However, states are not bound to honor the separate sovereigns exception and, in fact, several states, including I believe New York and Virginia, do not apply the separate sovereigns exception and consider a prior federal prosecution as preclusive of a subsequent state prosecution based on the same elements/ultimate fact. Moreover, in those states, merely having a jury convened is enough to create the potential for double jeopardy protection.
Making the situation even less clear, next week (December 5) the Supreme Court is going to hear oral arguments in a case that challenges whether the separate sovereigns exception is consistent with the Constitution’s double jeopardy clause. If the court holds that the double jeopardy clause applies even when prosecutions are brought by “separate sovereigns” (an outcome that many court observers believe is likely given that the push to reconsider the exception came primarily from the odd-coupling of Ginsburg and Thomas), then even those states that would have allowed a state prosecution on the crimes that Manafort was found guilty of or pleaded guilty to may not be able to pursue Manafort under state laws applicable to the same criminal behavior.
What it then boils down to is the status of the admissions Manafort made in his plea deal relating to the seven bank fraud/bank fraud conspiracy charges that the Eastern District jury couldn’t decide. While a verdict of acquittal or a guilty verdict will be enough to trigger double jeopardy protection, the law is a bit up in the air over the impact of a hung jury on a separate prosecution. In some jurisdictions it is clear that a hung jury decision is a nullity and it doesn’t prevent a second prosecution.
So bottom line: Assuming the Supreme Court, as is expected, kills the separate sovereigns exception, Manafort can’t be tried at the state level for the same criminal actions for which he was found guilty or pleaded guilty, including bank fraud. He probably could be charged with state tax fraud, although it isn't necessarily a slam dunk. As for instances of bank fraud crimes that he was charged with committing but was not convicted of due to a hung jury (but has essentially admitted in his plea deal), whether a state can try him for those will turn on how the state handles hung juries. And, of course, states can try him for matters not related to the activity on which the federal charges were based.
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