Manafort Is In the Clear Because of Double Jeopardy

nineteen to seven and a half years in prison. But as Manhattan d A. Cyrus Vans and others anticipated Trump pardon Manafort, two lower courts in New York had previously ruled that Vance's case, which alleged mortgage fraud in other crimes, was so similar to the federal case that it was barred by the double jeopardy law. Joining me, as former federal prosecutor Jennifer Rogers, who teaches at Columbia Law School, the constitution bars double jeopardy, but the Supreme Court has

made an exception for federal and state crimes. Explained that, well, I don't know that I would call it an exception. It basically the double jeopardy premises that you can't be tried twice for the same crime by the same government. So in the federal system, that means that, you know, if the U. S. Attorney charges you for bank fraud, um, they can't turn around and later charge you again for the same thank fraud. Nor can another US turney charge you for that same bank fraud. But it doesn't apply

to other governments. So you know, we certainly don't have any control over foreign government. So the US government can't stop save France from charging someone for a crime even if it's been charged in the US. But similarly, under our federal system of government, the states are all separate sovereigns as well, So the double jeopardy prohibition on charging someone twice for the same time doesn't apply to a state charge. So that's kind of generally speaking what the

federal constitution prohibition on double jeopardy sense. But in this case, New York had its own double jeopardy law, that's right. So you know, all citizens are entitled to the protections of the U. S. Constitution. That's kind of the floor, that's the baseline, But states are also free in their own constitutions to give their own citizens or protections, and New York State is a state that does, in fact to give its citizens more protection than the Federal Constitution

does in a whole bunch of areas. But one of those areas is in the double jeopardy context. So in New York State, it's not the case that if you are charged in a federal case and you get to the jeopardy point, which is either a conviction or um swearing in the jury at a trial, that you can charged with that same crime in the state. In fact,

you can't be, except in certain limited circumstances. So in New York State, if you've been charged and convicted by the SAIDs for specific conduct, you cannot be charged by

the state unless an exception applies. If you could describe the charges that Vance brought and how he thought that they were different from the federal charges, Yeah, that's a really good question, because when all of this was happening and he started to hear reporting that Syvance was going to bring charges, legal observers were talking about, what are

those charges gonna look like? Clearly he must have something different to charge, right, you know, it's generally speaking mortgage fraud, bank fraud types of charges, but a lot of us thought that you know, maybe there were specific you know, reporting requirements in this date, that maybe he filled out some false forms that are only chargeable in the state. You know, there are lots of those sources of state crimes books and records, types of crimes that don't have

a federal corollary. So a lot of it thought there would be something like that. But when the charges came out, they really weren't factually distinct from the federal charges, and so it was a little bit puzzling, and you know, a lot of folks thought that, in fact, what ended up happening would happen, which is that those charges would be deemed too factually close to and distinct from the federal charges, resulting in their rejection under the double jeparty law.

So when Vance brought those charges, as you mentioned, it was fairly clear that he was doing it because of the concern that Trump would pardon Manafort, which he did. But is there anything wrong with Vance's motivation there in bringing the charges. I don't think so. I mean, you know, the point is that if something is chargeable in the state, which bank fraud and mortgage trod are chargeable in New York State, if you have jurisdiction and venue over those senses.

The people of the state have an interest in seeing that those charges are brought and that you, if with you that crime in our state, are punished for that. So it's not that it's it's there's something wrong with him trying to vindicate the interests of the citizens of

New York State. And you know, in fact, this notion of being charged by the said but then getting out of it via a pardon was seemed so problematic that the New York State legislature changed the law, saying that that now is an exception, like if you are charged but then pardoned federally, you now can be charged for that thing conduct by the state. But that change was made too late to impact Manafort's case because the law is not retroact of really applicable. So I don't think

there's anything wrong. It's kind of an ethical matter with bringing the charges. The problem is they just didn't have enough of a distinct factual basis to get through the double jeopardy law as it existed then for Manafort without the pardon exception. Jennifer in its order last week, the Court of Appeals, without explanation, just said it wouldn't hear

Vance's appeal of the lower court decisions. Is there anything that the lower court judge or the appellate division said that struck you, not really, I mean, they just rejected the notion that this was different enough. And you know, I think the reaction of a lot of legal commentators was frustration, you know, the Advance brought a case that

just wasn't strong enough. I mean, you know, not that people thought that he shouldn't be chargeable in the state, given that he's now gotten off scot free on the federal side, but that there, you know, you really do have to comply with the law and bring something factually distinct enough, and unfortunately they didn't have that case. And

if you don't have the case, you shouldn't bring the case. So, you know, I didn't see a lot of complaints about what the judges did here, more just frustration that Vance thought something that at the end of the day wasn't going to succeed because they just didn't have enough of a distinct factual pattern here. And the fact that the state's highest court didn't take the case. But what does it say that the court just turn this down and

didn't allow an argument to be made. Well, the New York Court of Appeals, which is our supreme court, they don't have to take every case. You know, there are some cases that they do have to consider, but a lot of their jurisdiction is you know, they can take it if they want to take it, and cases that they want to take ten tend to be things that they think are wrongly decided right that they're gonna overturn, or that involved a kind of an area of the

law that requires clarification, that sort of thing. So if they see a case where they look at the decision below and they say, well, this decision was correct on the law and it's not really a close call because the double deeputy law is pretty clear about you know, having to have a distinct factual basis, then we're not going to take it. I mean, why take it only to say, yeah, we agree this is right. You know,

it's not a novel area of the law. And um, you know, so it says to me they didn't consider it to be a close case on the merits and they didn't see anything else interesting or requiring explanation about the case. Um, so you know, they agreed with the courts below, So it's there. So is mat A fort Scott free because I was reading that the language that was used in the parts that Trump gave may not

cover everything. Yeah, so that's that's an interesting issues. So Andrew Weissman, who is UM one of the Mueller team lawyers, one of the prosecutors who who um was on Muller team and charged and and tries these matters, wrote that

the pardon that Manafort received is very specific. It only applies to the crimes with which he was charged and convicted, and so that potentially leaves additional conducts that's chargeable by the federal authorities, because you know, you don't always charge someone with everything that you know they did, and certainly they're not always convicted of everything that you know they did. Right, So Andrew says that there's some conduct out there that

could be charged by the o J again. Now, even if that's true, it's really hard to imagine that the Biden Justice Department is going to charge Paul Manafort again for some of this leftover conduct. Um. But Andrew Wisen's

you is that technically it's possible. So you know, I guess we'll have to wait and see when Garland gets into his position, and they start to consider not just Manafort, but all of these other Trump world people, um, who have outstanding criminal conduct, you know, whether they're going to

pursue that or not. I remember Weissman also saying that they also levied some civil penalties, high civil penalties that he would have to pay, so at least there would be some measure of justice and some punishment from Manifort because everyone anticipated that Trump would pardon Maniford and everyone

else associated with the Muller investigation. Yeah, and I don't think it was a surprise to anyone that raptive partners have ended up partnering literally every single figure charged in the Muller investigation except for Rick Dates, who was the one person who truly did cooperate, signed a cooperation agreement, testified at trial, and you know, didn't just kind of fake cooperate the way that that Manafort did for a

short time. So, um, you know, I think it's part for prosecutors always to think two steps ahead and to try to cro charges in such a way and to add civil penalties in a way that insulates them from what was really an inappropriate pardon by the president shortly before he reached office. Trump also in a last minute pardon and really a last minute pardon, he pardoned Steve Bannon, and Vance is reportedly exploring a case against Bannon. Will that pardon have any effect on Bannon being tried by

New York So it's really interesting. So Jeoffardy has not yet attached for Steve Bannon because it doesn't attach until either guilty plea or the jury is born as a trial, so there is nothing to stop New York state authorities from charging him. But the wrinkle is that former President Trump pardon Steve Bannon only and not any of his free co defendants. So in the criminal case, the federal criminal case again his co defendants, continues and is set

for trial. You know, I don't know when it's set for trial, but it is coming up at some point, and so that complicates things a little bit because typically prosecutors don't want to have the same evidence and the same witnesses being used at the same time in a proceeding in federal court. And then also you'll have an investigation and ultimately charges in state court, so they're going

to have to sort out amongst themselves. You know, this kind of evidence sharing, and which investigation is gonna go first, and whether he can be charged before the federal trial happens and so on. Um. But I do expect that, given the nature of the conduct and the nature of the proof, which seems very strong, the Steed Bannon will eventually, perhaps after the federal trial is over, be charged in the state with the conduct that he was pardoned for.

What's his connection to the state. Does he live here? I don't know where the bans, but one of I believe one of the descendants was based in West Festa

uh if I'm not mistaken. And in any sort of cyber scheme where you have victims that you're reaching out to on the Internet and asking them to contribute money and they're giving you money, there's almost certain to be jurisdiction just about everywhere, to be honest with you, because undoubtedly some of the victims of the scheme would have been in New York State and would have given money, and the descendants would have reached out to residents of New York State as part of their scheme itself to

gather the money. So I'm not exactly sure more of connections between the descendants of the state, but certainly, given you know the outlets of cyber communications and where the victims are likely to be based, there will be jurisdiction in New York States. Thanks Jennifer. That's Jennifer Rogers, who teaches at Columbia Law School. It was day to a former President Donald Trump's impeachment trial. House Impeachment Manager Jamie

Raskin of Maryland started the proceedings. Raskin said new evidence would be presented that would prove that Trump insided his mob of supporters to storm the capital and derail the proceedings to certify the electoral College result. The evidence will be for you to see and hear and digest. The evidence will show you that ex President Trump was no innocent bystander joining me as former federal prosecutor Michael Zelden, Michael, what do you see as the broad strategy of the

House managers here? The broad strategy of the House managers seemed to be to lay the foundation for their brick by brick building of a case starting essentially before the election even took place, where Trump is saying we can only lose by fraud, moving into the post election period where he would lose, and then he said, you see,

it's fraud, just as I told you. Then his efforts to undermine and change the results of those elections in various states, finally and culminating in January six, and the protests and the violence, and the key language that they say over and over is what happened on January six was predictable and foreseeable, the result of a month long campaign to achieve what they achieved, which was an effort to stop the certification of the vote on January six.

So is that the most difficult part of their case, actually linking Trump to the attack on the Capitol. Well, it's difficult only in the sense that there will be a false First Amendment defense that will be laid out, which says essentially what he said on January six is protected First Amendment speech. What Jamie Raski started today with by saying that just doesn't apply. It is not what

he's on trial for. But I think because it is the culminating act, they need to establish this foundation to show that that was really not what he is on trial for alone, but rather that is part of a larger mosaic of activity that he engaged in which he knew what would be the result of and in fact it was the result of Well at this point, we don't know if they're going to have witnesses, but what they're doing is there methodically playing video and they're putting

up stills of tweets. How effective are the tweets of rioters in showing that they were following Trump? Well, I think that it again goes to the foreseeability of what they are trying to prove, which is to say, these people knew that they were only there because Trump told him to be there, and Trump was able to predict and foresee that they would show up because he has

been for months encouraging them to show up. And so I think that it's sort of dove tails with the presentation that one Trump is responsible to this, and two you can take that as true from the words of the people who actually went there because he told them to go there. I had not heard this before, but they said today that he spent some fifty million dollars

on ads running right up to January five. That seems like it's a powerful piece of evidence exactly, And I think that there will be an investigation where there should be an investigation of this money trail. Remember My background as a prosecutor was as money laundering prosecutor, and when I heard the accusation that there was fifty million dollars spent in the run up to the January six events and to get people to the January six events, I want to see who raised that money, how is it raised,

who spent it, why were they there? Because I think that that is also powerful evidence of a premeditated plan orchestrated by Trump and a group of people working with Trump to create this January six riot. I think it's very important evidend. We'll see whether they have it yet, but if we don't, I think ultimately we will see that. Who do you think would investigate that, because it doesn't seem as if Biden's Justice Department is interested in pursuing

Trump and relitigating it. Well, the Federal Election Commission one has a duty to obtain information with respect to anything that's campaign related, and so there may be campaign finance reasons for the Federal Election Commission to look into it. There may be violations of state laws around elections that state prosecutors will look into, and I'm not so sure. After the dust settles and Merrick Garland is in his position that prosecutors are not going to be allowed to

investigate crimes that occurred in their jurisdiction. So I wouldn't say for sure that the Biden administration is not going to free prosecutors to look at possible criminal activity in their jurisdictions as time passes. So what do you think is the hardest part of the House Manager's case. Well, the hardest thing they have to do is convinced the Republican senators to listen, because there has been reports many

of the senators are not even paying attention. Yesterday they said Marco Rubio and Josh Howley and others are doing other things. So part of it is to obtain their attention.

But I think the hardest thing for them to prove is what they are trying to prove, which is this is not a one off, one hour speech by Trump, but rather this is a fully orchestrated, months long effort that January six was the foreseeable and predictable outcome of and therefore he's responsible because if it's just one day, one speech, then I think it gives his attorneys an opportunity, as I say, falsely argue First Amendment and lack of

foreseeability and he had no intention to incite. But the longer the case goes, and the more they can establish this timeline that starts before the election where he says it's only going to be lost if there's fraud, up until his speech on January six, where he then essentially blows the whistle and says charge. I think they have a strongest case by that, and that's not a simple case to make, but that's their strongest argument. Reportedly, Senator

Lindsey Graham told Trump after the first day that it's over. Now, the trial is over, and you're going to be acquitted. I can't imagine how they feel, the house managers. When you're a prosecutor, if you went into a courtroom thinking that the jury was against you, I mean, it'd be hard to put on the case. Well, it is, yes, And I mean the history of civil rights litigation UM where they were charging people with violating civil rights, workers rights and they were losing to all the juries had

to be very distressing. But I think in this case you have a trial that really is to the American public and to history. So I think that these house managers know that even if they don't obtain a conviction. Even if they can't convince seventeen Republicans, they are broader audiences the American people and history, so that it is documented what Trump and his allies did and how they

brought that to life. I think that there's something that is very compelling for a prosecutor to say, winner of lose, I'm fighting the good fight. Actually, I think it was quite a victory yesterday when a Louisiana Senator who hadn't voted against the jurisdictional issue when Rand Paul brought it up, when they got him to vote for jurisdiction, that was

a victory of sorts, no question. Whenever you can convince somebody who has voted against you in one vote to vote in your favor a second vote, that's that's the victory. The thing that is interesting to me is to keep an eye on McConnell. He's been quiet. He made comments early on that he thought Trump was responsible for this. He voted yesterday against moving forward, But he may have done that reasons that don't relate to how he's going

to vote on the merit of the case. I still think as he goes goes the outcome of this trial. I think he's in a lynch pin that many senators are looking for his non approval to vote. Someone said, and I think it's probably right that were this a secret ballot, Trump would probably lose seven eight votes to convict.

But because it's not a secret ballot, and because these senators primarily are concerned about their political career and their will being in non America and not its history, and not the rule of law and all that stuff, we're in this situation of only six voting to convict. So now, what can the defense do to counter the House argument?

What I think that defense is going to try to do is to say all the president did was to make a speech, a one hour speech on January six, which is protected by the First Amendment, and that the actions of the mob stormed the capital were not foreseeable by him, was not intended by him, and was just on them by themselves, without any culpability for him. I think the more noise that they can make that all Trump did was what he was allowed to do under laws.

That is, he is allowed to bring lawsuits, he is allowed to ask the senators to exercise their power to contest the certification on January six. He is allowed as a matter of free speech to speak to whomever he wants to, and state legislature was about whether there was election fraud and that his speech was not inciting, but rather it was just rhetoric that is normal in the political discourse. I think you'll see a lot of false equivalence.

They will say, well, Maxine Waters said this, how is it if she said that she's not on trial, but our guys on trial. So they going to be a lot of effort I think to say this speech was hyperbolic, but but First Amendment protected. I think that's what they'll try to say. You know, it's very hard to know what they'll do after listening to their opening arguments yesterday because they were incoherent, loud, and incoherent, so it's pretty

hard to know what their strategy is. But if I were representing the president in this case, I would try to say that everything that he did was lawful. He had a right to allege election fraud, he had a right to contest in the courts these elections. He had a right to make that speech, and the outcome of that events, that series of events was unforeseeable to him and so as terrible as it was, a lot of people are saying, well, they have to prove you know,

he had the intent, etcetera. But this isn't a criminal trial. Do they really have to meet some kind of burden of Well, they have to prove their case. That is, they have to prove what they allege in their article of impeachment, which is that he incided in an insurrection and he did so by a course of conduct that took place over many months. So yes, they have a burden of proving their case. What is the false analogy is to a criminal trial and what I say, there's

a false First Amendment defense here. In a criminal trial, the First Amendment defense is the First Amendment protects me from being criminally prosecuted for words out of my mouth, absence some imminent, clear and present danger that these words create. In an impeachment trial, because there is no criminal penalty, that First Amendment defense really doesn't apply. But I think that that's what they will continue to try and do, and I think the house managers have to continue to

say it's not about that, don't be misled. This is about a month long brick by brick campaign that culminated on January six, didn't start and end on January six, So we don't know about witnesses. And I understand that they're trying to use the video and the tweets and

instead of witness testimony. But what seems to be missing and they refer to the reports that Trump was gleeful hearing about this and why he waited until he stepped in, Don't they really need someone in order to make the case a full case needs someone to talk about how Trump reacted to the violence. I think how Trump reacted to the violence and the delayed responds calling it to

an end is very important, definite. That's not clear to me though, how they get that, because it seems to me that from what we've been hearing about in the press, only ones who know that our Trump inner circle people she goes stay as Mark Meadows, his children and others who were invited by him to watch the videotapes, Jared and Ivanka and the likes, And so I don't know exactly how you get that. I don't think they'll come voluntarily.

If you were to subpoena them, then you're in this courtroom fight over executive privilege and the trial gets delayed forever and ever, but absolutely right. If there is somebody who can say I was there and I saw his reaction, or I'm one of the people who was calling and calling and calling and couldn't get his attention, I think that would be powerful elevience. And I think that that Ladder group they may get, they may get people who have told them about what their efforts were to get

Trump's attention and they couldn't get it. I think we may hear that, but I don't know that we're gonna get a live witness who can testified to that. But I think you're you're spot on in your evaluation. That would be very compelling. So finally, compare this impeachment trial

to the last impeachment trial. We're only a two days in, but still the first Trump's impeachment trial was a little bit, you know, esoteric in a sense that you had a phone call with a partial transcript where the words weren't very clear and you could read into them in different ways, and it was not a simple sort of blood and gut case. It's much easier to prosecute sort of street crimes case with his blood, guts and core that stuff than it is a financial crimes case where it's just

a lot of paper. I think the first case was a lot more sort of paper ish in a sense, this opaque phone call, and this one is really a blood, sweat and tears sort of case where we see the video of what's going on, and the key witness in this trial so far has and Donald Trump and the words out of his mouth, both orally and in tweets. I remember we have to say about a tweet is that the President said early on in his administration that

tweets are official presidential communications. They are not simply the midnight ramblings of a private citizen. These are official government documents. So when he says something in the tweets, it is an official statement of the president of the United States. Thanks Michael. That's Michael Zelden and that's it for the edition of the Bloomberg Law Show. I'm June Grosso and you're listening to Bloomberg