Paul Manafort's 47 months: A sentence that drew gasps from around the country

Former Trump campaign chairman Paul Manafort departing the federal court house after a status hearing in Washington, on Feb 14, 2019.
Former Trump campaign chairman Paul Manafort departing the federal court house after a status hearing in Washington, on Feb 14, 2019.PHOTO: EPA-EFE

WASHINGTON - US Judge T S Ellis III offered some pointed advice for those who expected him to throw the book at US President Donald Trump's former campaign chairman, Paul Manafort, for perpetrating a decade long, multimillion-dollar fraud scheme.

"Go and spend a day in the jail or penitentiary of the federal government," Mr Ellis said Thursday night (March 7) from the bench in the US District Court in Alexandria, Virginia. "Spend a week there. He has to spend 47 months."

Mr Ellis dismissed as "vindictive" and "way out of whack" sentencing guidelines that recommended a prison term of 19 to 24 years for Manafort, 69.

But to more than a few legal experts, it was Mr Ellis' sentence that was out of whack. They cited it as a glaring example of the leniency that wealthy white-collar criminals often receive because they have the money to defend themselves or because judges find it easier to empathise with them.

"There are a lot of defendants who are going to prison for a lot longer for offences that are far less serious," said Duncan Levin, a former federal prosecutor who specialised in financial crimes.

"This sentence is leaving me and a lot of people who do this every day scratching our heads."

By some calculations, with credit for the nine months he has already spent in jail, plus a break included in a sentencing law just approved by Congress, Manafort could serve out Mr Ellis' sentence in just 22 months.

The judge had predicted some pushback, but he may not have expected how his decision reverberated around the nation, provoking a social media firestorm that swept up public defenders, prosecutors and ordinary citizens.

William Nettles, a former US attorney in South Carolina, called Mr Ellis' decision "sentencing disparity on steroids."

"How in the world can we make sense of the sentences that we have been handing down to the poor and to those people of colour who didn't have nearly the opportunities that Paul Manafort had to make an honest living?" asked Mr Nettles, who was an Obama administration appointee.

Scott Hechinger, a public defender in Brooklyn and a pithy presence on criminal justice on Twitter, made a similar point. "For context on Manafort's 47 months in prison, my client yesterday was offered 36-72 months in prison for stealing US$100 (S$136) worth of quarters from a residential laundry room," he wrote.

Many legal experts criticise sentencing guidelines as unduly punitive. But in four out of 5 criminal cases, sentences fall within or above the guideline range, unless the government specifically requests a lighter punishment.

In Manafort's case, prosecutors recommended no specific punishment but said the range of 19 to 24 years had been rightly calculated.

Rachel Barkow, a former member of the US Sentencing Commission, said she had expected Manafort's punishment to fall below the guidelines. In fraud cases, the recommended penalty can skyrocket depending on the amount of money involved, she said, leading many judges to opt for a lighter sentence.

But Mr Ellis cut the punishment far more drastically than she expected, said Ms Barkow, a law professor at New York University.

Mr Ellis said the guidelines for Manafort's crimes were distorted by a 2017 decision by the Justice Department that increased the recommended punishment for failing to disclose a foreign bank account, which was one of eight counts Manafort was convicted of after a lengthy jury trial in his courtroom.

He also noted that he had sentenced another defendant who had hidden US$200 million in overseas accounts and evaded US$18 million in taxes to only seven months in prison, plus restitution.

 
 
 

Greg Andres, the lead prosecutor on the case, argued that Manafort was different because the jury had found him guilty not only of hiding his wealth and evading US$6 million in taxes but also of deceiving banks to obtain millions of dollars in loans. The two bank fraud counts were the most serious charges he was convicted of, each carrying a maximum penalty of 30 years in prison.

Mr Andres also urged Mr Ellis to take the broader picture of Manafort's behaviour into account, including the crimes he admitted to as part of his plea agreement in a related case in Washington.

Manafort acknowledged he was guilty of 10 other felonies on which the Virginia jury had deadlocked 11-1, including several more counts of bank fraud.

But Mr Ellis seemed to see Manafort's case as more strictly about tax evasion. He noted that one fraudulent loan application was never actually approved and questioned whether Manafort had in fact intended to cause that bank a loss when he lied to get another loan.

"I don't know that there's any other way to defraud a bank and not intend it to lose the money," Mr Andres replied.

Carl Tobias, a professor at the University of Richmond School of Law, said Mr Ellis' sentence seemed strangely light, especially given that the judge denied every objection raised by Manafort's lawyers to the sentencing guidelines.

"He refuted all of the arguments of the defence, yet ultimately ruled very much in favor of their client," Prof Tobias said.

He was also struck, he said, by the judge's praise of Manafort's character. "He's lived an otherwise blameless life,"

Mr Ellis said of a man who acknowledged orchestrating a sophisticated financial fraud scheme that lasted a decade. "And he's also earned the admiration of a number of people."

To the very end, Mr Ellis showed his distaste for special counsels. He said the office of the special counsel, Robert Mueller, had the authority to prosecute Manafort, but "that doesn't mean that I decided the wisdom or appropriateness of delegating to special prosecutors broad powers."

Mr Ellis cut off a prosecutor as he tried to explain the special counsel's position on the appropriate fine for Manafort, admonishing: "That's the government's position. I don't want to hear special counsel."

The defence has played on the judge's sentiments, insisting that Manafort has been relentlessly pursued for garden-variety crimes only because of his importance to the special counsel's inquiry into Russian interference in the 2016 presidential election.

On Thursday, Kevin Downing, Manafort's lead lawyer, took up that refrain again, repeatedly saying that a local US attorney's office would have handled the case differently.

In federal court in Washington, where Judge Amy Berman Jackson will sentence Manafort next week on two conspiracy charges, that strategy has been noticeably less effective.

Some legal experts suggested that Mueller's team might respond to Mr Ellis' decision by asking Ms Jackson for a specific sentence on the two conspiracy charges, which each carry a maximum penalty of five years.

But few expect her to be influenced by the Virginia judge's decision. "It's not her job to use her sentence as a moment to correct what she thinks went wrong in this case," Ms Barkow said.

One of the biggest issues remaining for Manafort is whether he will be allowed to serve out his two sentences simultaneously. Prosecutors have taken no stand on that so far but indicated in a sentencing memorandum that they might do so after Mr Ellis' decision.