PAUL MANAFORT HAS ONE LAST CARD TO PLAY: THE ONE MICHAEL COHEN IS PLAYING
Untitled, Watercolor, 20” x 36”, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
If Mr. Manafort has something to add to Mr. Mueller’s investigation that can be corroborated, and he could muster the wherewithal from the deep hole in which he now resides, he might convert to Mr. Cohen’s newfound religion, and take a passage from its holy text. If he has information he could provide about the criminality of others, say someone in the Trump Organization or Oval Office, whom the Special Counsel or any federal prosecuting agency is interested in investigating, he may wish to invoke Rule 35 of the Federal Rules of Criminal Procedure to see whether anyone is willing to give him one last, desperate chance not to spend the rest of his life in prison. Highly doubtful, given his utter failure with his recent cooperation agreement, unless the information is explosive, can be corroborated and is not otherwise available to prosecutors. If it were of such profound importance to federal prosecutors, Mr. Manafort might even persuade them to try to influence New York state prosecutors to stand down.
Mr. Cohen entered a plea and cooperation agreement with the United States Attorney for the Southern District of New York. In exchange for his cooperation and his guilty plea to a number of crimes, including a couple of campaign finance violations in which Mr. Trump is identified as both “Individual 1” and the unindicted co-conspirator, the Southern District of New York (SDNY) was willing to recommend to the court a reduction in the Federal Sentencing Guidelines range, meaning the length of time the judge would place Mr. Cohen in a federal correctional facility. How that would turn out depended largely on the quality and completeness of Mr. Cohen’s cooperation in providing “substantial assistance” in the resolution of other crimes. Mr. Cohen’s cooperation agreement with the SDNY was unrestricted in scope, meaning that in order for Mr. Cohen to fulfill his end of the bargain, he could hold nothing back about anyone or anything. Mr. Cohen, according to court filings and transcripts, was unwilling to fulfill those terms, so the SDNY was under no obligation to make any downward departure recommendations. It didn’t.
Mr. Mueller, meanwhile, also had his sights on Mr. Cohen, and for reasons not altogether clear, piled on with a charge of lying to Congress. Mr. Mueller, however, was very satisfied with Mr. Cohen’s cooperation under an agreement that, apparently, was much narrower in scope than the one in the SDNY. Makes sense, given that the scope of Mr. Mueller’s mandate is more limited than, say, the entire body of crimes in the United States Code. Mr. Mueller did not seek any incarceration beyond what the judge would give Mr. Cohen for his crimes in the SDNY.
As we know, Mr. Cohen was sentenced to three years in federal prison. If he behaves himself, he will serve roughly 31 months. In an effort to cut time off the three-year sentence, Mr. Cohen is making even greater efforts to clear his conscience. He's doing the congressional tour and has been talking to others. Who knows what new information he has provided to the SDNY, post-sentence.
The Federal Rules of Criminal Procedure provide incentives, even after sentencing, for a defendant to earn time off his/her time in prison. Rule 35, which can be invoked only after sentencing, gives a defendant up to one year to think about it and provide substantial assistance in “investigating or prosecuting others.” Two things to keep in mind: first, post-sentencing, the court can reduce that sentence only if the prosecution files a motion seeking the reduction; and second, the prosecution has the exclusive right to decide whether to file such a motion, meaning the prosecutor alone determines whether the quality of what the defendant provided rises to the level of “substantial assistance.” The United States Attorney’s Manual provides:
"Substantial Assistance. When making a sentencing recommendation, the attorney for the government may consider whether, and to what extent, the defendant has provided substantial assistance in the investigation or prosecution of others."
One court defined substantial assistance as assistance "directed to the investigation and prosecution of criminal activities by persons other than the defendant." United States v. Billue, 576 F.3d 898, 902 (8th Cir. Minn. 2009).
Rule 35 says:
“(b) Reducing a Sentence for Substantial Assistance.
(1) In General. Upon the government's motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person. . . .
(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant's presentence assistance.
(4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.”
So, Mr. Manafort, it's now time to turn over that recording of Mr. Trump asking Mr. Putin to throw the election in Trump's favor. I doubt much else would change the outcome.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers