Former prosecutors and academics are divided on Manhattan DA Cyrus Vance Jr.’s chances of success in avoiding New York’s restrictive double jeopardy laws in his office’s pursuit of former Trump campaign chairman Paul Manafort Jr.
Vance’s decision to secure an indictment against Manafort was clear enough when it was announced just moments after the former Ukrainian lobbyist was sentenced to a total of seven and a half years in federal prison by U.S. district judges in the Eastern District of Virginia and the District of Columbia.
If President Donald Trump would choose to issue a pardon for Manafort, state prosecutors in New York want the ability to keep him in legal jeopardy without the ability for the president to interfere. Trump said this week that he has not at this time considered an offer of clemency to his ex-campaign manager.
But some state prosecutors and legal observers have publicly expressed concerns for months about New York’s restrictive double jeopardy law and the impact it could have on state prosecutors’ desire to hold members of the Trump administration, family or both to account down the road.
While lawmakers in Albany inch closer toward updating the law, observers are split on the path for Vance to take, as well as his office’s chances of success.
New York Law School professor Rebecca Roiphe, who previously served in the Manhattan DA’s office, said there are legitimate concerns that charges in the indictment could run afoul of the state’s double jeopardy law.
“I don’t think it’s a slam-dunk case,” she told the Law Journal. “What the DA would have had to do is really thread the needle here and charge crimes and underlying facts that don’t overlap with federal charges.”
It’s unclear whether Vance has managed to do that, and, perhaps more importantly, whether a state judge will agree with prosecutors’ arguments they have.
In the 16-count indictment, at least seven of the counts are related in some way to a fraudulent mortgage scheme Manafort is alleged to have orchestrated. According to reports, citing sources with knowledge of the situation, the charges relate to mortgages through Citizens Bank and Federal Savings Bank.
These same banks were identified in the federal bank fraud prosecution against Manafort, for which Manafort was found guilty of five counts of fraud, while a mistrial was declared on seven other counts of bank fraud and related conspiracy. Observers are concerned the state charges are related to the exact same underlying acts and offenses Manafort was charged with, and convicted of in some instances, in federal court.
The state statute does provide a number of exceptions to double jeopardy. Of the three most relevant to the current situation , the one eyed most closely by observers in the Vance indictment requires that the charged offenses contain some differentiating element, and the offense alleged violates a law designed “to prevent very different kinds of harm or evil.”
Saul Ewing Arnstein & Lehr partner Jennifer Beidel, a former assistant U.S. attorney in Manhattan, said one of the keys will be showing the differences between the state’s mortgage fraud provisions and, say, a wire fraud charge that has an interstate wires element not found in the state statute.
“The question here is whether the state authorities have appropriately parsed the elements of the statutes that are charged in each case, and determined there is a different unique element to each charge,” she said. “If there is, they’re probably fine. If there’s not, they may not be.”
Exiger general counsel Daniel Alonso sees a way for Vance’s office to be in the clear. The former chief assistant DA to Vance during his first term, Alonso sees the most likely path for the Manhattan DA’s office lies with whatever lines up with the counts the jury hung on.
The convicted charges are the most problematic for state prosecutors, as Alonso noted. Here, Vance’s office could make the argument that the state’s mortgage fraud laws, drafted in the wake of the housing crisis of the last decade, are aimed to resolve a different harm than the federal bank statutes.
“The harm that the residential mortgage law was designed to attack was not bank fraud, but to preserve the integrity of mortgage system against fraud—that’s the Manhattan DA’s argument,” Alonso said, describing the hypothetical.
He pointed to the fact that the state’s residential mortgage fraud law, unlike federal bank fraud, exempts from liability someone who lives in the property, even if they would otherwise be guilty.
Fordham University School of Law professor Jed Shugerman disagreed, saying he sees Vance’s case as not only “weak,” but one that opens the door to questions about Vance and other state prosecutors’ commitment to the rule of law.
“The indictment of Manafort for the Citizens Bank transaction certainly goes against the spirit of the New York law, and it probably goes against the letter of New York law,” said Shugerman, who wrote recently about the issue. “This is, on its face, as far as I read, a fairly clear double jeopardy problem. And unless there’s some other set of facts, or some other set of precedents that I haven’t seen, I have to wonder about the political wisdom and the ethics of pushing New York State’s double jeopardy law this far.”
A spokesman for the DA’s office declined to comment.