In Manhattan Prosecution, Manafort and DA Confront Their Pasts

“Let’s be clear: It has been abundantly clear for a year and a half that something like this was going to be necessary,” Shugerman said. “So, is this the best they can do?”

Manafort’s indictment charges him with New York statutes that do not exist under federal law, like mortgage fraud or falsifying business records, but there is little information about whether any of the charges relate to properties or transactions not tried in Virginia and Washington.

This could be a crucial distinction for prosecutors defending the charges in New York, where the 1998 case People v. Bryant allows for prosecution on a similar set of facts if the state and federal statues aim to deter a “very different” harm or evil.

In Bryant, the armed-robbery suspect faced federal charges of bank robbery, firearm possession and conspiracy, but state charges for attempted murder.

Expressing confidence in Vance’s approach, Rocah acknowledged: “There’s some unknowns in the Manhattan D.A. indictment.”

Though only the Howard Street property is listed by address, court papers contain some clues that other mortgage transactions might be at issue. The various counts of residential mortgage fraud and falsifying business records list dates of transactions between late 2015 and 2017.

Those dates can be found in city records listed in the names of Manafort; his wife, Kathleen; and his daughter, Andrea. They include properties that the federal government seized: a Brooklyn brownstone at 377 Union Street and Andrea’s Chinatown apartment at 123 Baxter Street. Manafort also gave up a home in Bridgehampton pursuant to his plea deal.

The indictment accuses Manafort of defrauding two lenders, suggesting that Citizens Bank is not the only business at issue.

“You have to literally do a side-by-side comparison to see which transactions overlap,” Rocah said. “Not just which banks, but which transactions, and do they overlap with the counts that were hung? Do they overlap with the counts that he pled guilty to?”

Manafort's Virginia jury hung on several counts related to his Brooklyn and Bridgehampton properties.

Unlike Special Counsel Robert Mueller’s famed “speaking indictments,” Rocah noted, district attorneys tend to reveal less in their charging documents.

Shugerman argued that hunting for new offenses from the same transactions prosecuted on the federal level could empower critics primed to view the investigation into Trump’s inner circle as political.

“Even if it’s true that it’s a different bank, this strategy of basically trying Manafort twice for the same facts gives fodder to Manafort supporters and to MAGA supporters that basically say that this is prosecutorial overreach,” Shugerman said, referring to the Trump slogan Make America Great Again. “And I’ve got to say, I do not like the ‘witch hunt’ claims, but I also do not like prosecutors giving credence, giving fodder to people claiming there’s a witch hunt.”

Every legal expert reached for comment believed that any double-jeopardy challenge would depend on a number of factors. The “separate sovereign exception” of the U.S. Constitution allows for states to prosecute for factually related conduct tried in federal jurisdictions.

During Supreme Court arguments challenging that longstanding rule, Justice Elena Kagan noted that 30 separate justices have approved it over the years during arguments.

A decision in that case remains pending, but even if the high court honors precedent, New York law prohibits trying people for crimes heard by a federal jury “based upon the same act or criminal transaction.”

“They are stuck with a double-jeopardy law in New York that is more restrictive than the Constitution,” Rocah noted, referring to Manhattan prosecutors. “It’s more restrictive than other states. It may be that they lose some counts. Will they lose all of the counts?”

Finding that unlikely, Rocah said Vance may be hoping to bring clarity to a muddied statute.

“Let’s say Trump does pardon him,” she posited. “The state of the law about whether that then does away with the double-jeopardy argument is even less clear.”

Before resigning as New York attorney general amid claims of physically abusing women, Eric Schneiderman warned last year that the “double-jeopardy loophole” could give Trump’s allies a pass from state prosecution in the event of a pardon. The Democrat-controlled Legislature is expected to plug the law, but the Constitution’s ex post facto clause would prohibit that change applying to Manafort. 

Rocah believed the prosecutor might be taking a principled stand to resolve a longstanding controversy under New York law: Can a sitting president eliminate the legal liability of a crony with a strategic pardon?

“As long as [Manafort's] convictions are here, 'Fine, I understand double jeopardy’s a real problem, but if [Trump] pardons him, I’m ready to litigate this because this is worth litigating,’” Rocah said, explaining this line of thinking.

Should such a legal battle snake through New York courts, it would hardly be the state’s first test of separate-sovereign controversy.

The late billionaire Leona Helmsley, another white-collar criminal convicted of tax evasion, shared Manafort’s distinction of being tried by the U.S. and New York governments.

Known by her credo “only little people pay taxes,” Helmsley served a 19-month federal sentence and skated state prosecution by arguing double jeopardy. Schneiderman had been railing back then about the “Helmsley loophole” until the New York Legislature patched its tax-evasion exemption in 2011. 

Another double-jeopardy accusation swirling around New York courts is the case of former Goldman Sachs programmer Sergey Aleynikov, whom federal and New York juries convicted of stealing his employer’s high-frequency trading code.

After a federal court overturned Aleynikov convictions on technical grounds, Vance prosecuted the programmer in Manhattan and scored a conviction in a mixed verdict. New York’s highest court of appeals found in Vance’s favor on the narrow issue of whether computer code counted as a tangible good under the statute.

In an email, Aleynikov’s attorney Kevin Marino expressed confidence that he would prevail in his last pending appeal: the double-jeopardy challenge. 

“I haven’t followed the Manafort case closely enough to know if the decision in our case will affect it,” Marino said. “But insofar as the New York indictment charges Mr. Manafort with some of the same loans that were at issue in the E.D. Va. case, I must ask: Does the once-proud Manhattan DA’s Office bring any cases that have not already been tried by another sovereign?”

Aleynikov challenged the case on double-jeopardy grounds before, albeit unsuccessfully.

“In this case, the State of New York is a separate and distinct sovereign from the government of the United States,” Manhattan Supreme Court Justice Ronald Zweibel wrote in 2013.

Vance’s office declined to comment, and Manafort’s attorneys did not respond to requests for comment.

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