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Harry Litman [00:00:07] [Music] Welcome to the very first episode of Talking Feds. This is a new kind of podcast. Each episode we bring together four of the most highly respected former U.S. Department of Justice officials for an off the cuff, insider discussion of the most pressing legal topics of the day, like the Mueller probe and related investigations. I promise you won't hear talk like this anywhere else. Not 30 second sound bites, but nuanced deep dives, the way prosecutors really talk when they're talking with each other. 


Harry Litman [00:00:39] I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General, and before that an Assistant United States Attorney, or line prosecutor. Today I'm in Washington D.C. and I'm thrilled to be here with three tremendously knowledgeable and experienced former feds, starting with Joyce Vance. [End music] Joyce was the United States Attorney for the Northern District of Alabama, the first female U.S. Attorney nominated by President Obama, and prior to that she was an Assistant U.S. Attorney for many years. How long, Joyce, were you an AUSA for? 


Joyce Vance [00:01:11] Let's say 25 years minus the last eight years that I was U.S. Attorney. 


Harry Litman [00:01:16] I see. That was served concurrently then I guess? 


Joyce Vance [00:01:18] Concurrently, not consecutively. Actually, it was consecutive. 


Harry Litman [00:01:22] And you were you were Chief of Appeals for a time too, right?


Joyce Vance [00:01:25] I did. I was a criminal prosecutor for about 10 years and then I was in our appellate section and was the chief of that section. 


Harry Litman [00:01:30] To my left here in Washington, Paul Fishman. He's the immediate past United States Attorney for the District of New Jersey. He has held a variety of senior positions in different administrations including the Clinton administration, where I was scared to death that he would pass me in the hall and spit out some assignment that I wouldn't understand. And then right across from me, Matt Miller, who served as the Director of the Office of Public Affairs for the Department of Justice. He's worked also in leadership positions in both the U.S. House and Senate. How long were you actually in the Department? 


Matt Miller [00:02:03] Three years, first three years of the Obama administration. 


Harry Litman [00:02:05] What happened after that? 


Matt Miller [00:02:07] I decided I was going to go do something else. It's a long time to be the head spokesman at DOJ. It's a tough job. Mainly because you have people like Paul and Joyce calling you up complaining all the time that you're not doing your job well enough. 


Paul Fishman [00:02:16] I never did that. 


Joyce Vance [00:02:16] I never did that! [Laughter]


Harry Litman [00:02:19] Today, as, as we're going to do generally on Talking Feds, we're going to talk about a couple of topics. We're also going to have a few features, one called Sidebar that'll gives basic information about the federal criminal justice system, and we'll end with a question from one of the listeners, that we have to answer in five words or less. 


Harry Litman [00:02:41] So the first topic, let me set it up. We've had this drumbeat over the last three weeks, four weeks that says the Mueller report is going to be dropped any day, any second. We've all had, in days recently, where TV has said, "Can you just stay to the end of the hour? Because we expect it literally in 15 minutes." And yet there seem to be such unfinished business with what Mueller has to do because even leaving aside the prosecutions that he could give over to other U.S. Attorneys' offices, he's got to explain to the American public a basic story about what happened in the 2016 election. How can he do that until he's fully plumbed the depths of what Roger Stone has to say? We may find that out tomorrow that Stone's going to trial. How can he do that without having gotten basic information from Trump Junior? From Kushner? Really not very much from the president himself. There seems a real contradiction that on the one hand he's ready to go, but on the other there's these very basic building blocks. So, OK Feds, what do you got? Why, why do we, do we think that in fact it's coming down any second, and what will it look like if it doesn't address these big topics? Matt, you want to start us off?


Matt Miller [00:04:05] Sure. I do think it's coming soon. I think you can actually read the public tea leaves either way. You can look at the holes, the things that are still outstanding, there's this mystery appellant that's been fighting a subpoena, there's Andrew Miller who is an aide to Roger Stone, who has yet to testify to the grand jurt. You can look at things like that and say, 'Well there's no way this case can wrap up before those are completed.' But I will say, the thing that makes me think it's it's coming to the end - you all probably do a better job of reading the court dockets than I do - what I do is, read kind of reporters and the Department and what they're saying about the Department. 


Matt Miller [00:04:36] And if you looked at when Rod Rosenstein announced he was leaving, there was this flurry of concern, 'Well how could Rod leave before it's over?' And then a very quick pushback among the reporters who know DOJ best and are most well sourced about, "Oh no, Rod's leaving around March. Expect Mueller to be done kind of around then." And if you've watched it closely you can see some pretty clear signs coming, I don't think out of Mueller, but out of the only other person who for the last few months has known Mueller's doings, that's the Deputy Attorney General at his office, that he's leaving soon, and Mueller is wrapping up concurrent with that. 


Harry Litman [00:05:08] So you think they've actually kind of heard it on the QT from people within the Deputy's office? 


Matt Miller [00:05:14] I do. And I also think that the way this ends is not what a lot of people think, which is there's going to be this report submitted by Mueller to Barr, Barr then takes a week, two weeks, a month to figure out what to do with it. I have a pretty good suspicion that there was a near find that there is a near final draft that makes it to main Justice, they figure out a rollout plan and the entire thing is seamless because DOJ doesn't want the report sitting there and it possibly leaking out that it's there before they can figure out what to do about it. I suspect they've known for at least a month, maybe two months now, how this all ends and how they're going to roll it out publicly. 


Harry Litman [00:05:51] Right. I mean imagine the pressure, day in day out if they know the report is sitting there. But OK well let's say that's true, what, what, how could it be then or what would the report have to say about these big parts of the puzzle that as far as we know he hasn't really plumbed at all?


Paul Fishman [00:06:08] Well it's not clear the report has to say that at all. First of all the requirements, the legal requirements of what has to be in that report actually are quite minimal. And Bob Mueller has never been a man of many words, even before he was the special counsel. And so it's not necessarily the case that even without any of those atmospherics or context that he would write a 50 page or 100 page report detailing everything he learned and what witnesses said and didn't say, it's just not his style. And of course we all remember that one of the things that everybody's complained about that happened at the end of the last administration was Jim Comey getting up and basically doing that with respect to the Hillary Clinton investigation. People thought that wasn't appropriate. And so so my guess is that that's not going to be Bob Mueller's sort of signature event is writing this very long and complicated report, particularly because there are a bunch of things that are still under investigation. And so he'll be able to say things about the parts of the investigation that seem to be basically contained and over, which is effectively the obstruction of justice investigation, the things involving Michael Flynn, people who'd been, who have pled guilty and been sentenced. 


Paul Fishman [00:07:11] But with respect to things that are outstanding, like Roger Stone, whatever investigations are being handled elsewhere in the Department, in the Southern District of New York or perhaps the Eastern District of Virginia, or the U.S. Attorney's Office in Washington, that's not going to be in there. It may, there may be some passing reference to the existence of those investigations to the extent that they've become public, but I just don't see that that report is going to do that. With respect to the last thing Matt said, I think he's absolutely right, and I think not only is he right for the reasons that he said, but I think Rod Rosenstein, there's going to to be a new Deputy Attorney General relatively soon. And if the report is in the Department when the new Deputy Attorney General shows up, if I were the Deputy Attorney General, I'd say, "I want to take a look," and that's just going to slow it down so I think there's every reason to get that stuff out of the way. 


Harry Litman [00:07:56] Yeah. Well look I agree he's a man of few words, but he's also a man of duty. And it certainly seems like the marching orders that Rosenstein gave him had to do with figuring out a story. So it's true he'll say these other things can go on, but do you anticipate, Joyce, that the story he tells about, supposedly the 2016 election will be basically silent as to these critical final pieces of, Did Stone talk to Trump? What happened exactly in the June 2016 meeting? What do you know he's he's basically constructed a lot of misconduct and crimes in Russia and in the United States and this seems to be you know a span away from joining them, seems a very funny time to stop. 


Joyce Vance [00:08:46] I think that that's the interesting question right. If this persistent reporting we all hear that Mueller is closing up shop, if it's true, why? And how could he be closing up shop when for instance Roger Stone is left to go to trial? Or D.C. grand jury materials are still being litigated? And you know Matt makes this interesting point about Rod Rosenstein who, it's now the middle of March and Rod Rosenstein is still the Deputy Attorney General and there is no Mueller report. And it wouldn't make sense for Rod to leave with this project still in progress. There is obviously some flexibility about dates here. I think it's entirely possible though that Mueller will close shop, he will write a limited report, it'll be something more of a discussion of his prosecutive decisions, not in any great detail but rather just listing who he indicted, what for and why, and maybe if there's one big glaring individual who he doesn't indict but believes that there would be evidence to indict, maybe he'll discuss that a little bit along the lines of transmitting it to a decisionmaker who might make use of that evidence. But even though you know Neal Katyal, who wrote the Regs, is careful to say that what's in those Regs, that's the floor. That's the bare minimum that the special counsel can report on, not the ceiling. I think everybody's right Mueller is relatively tapped and he doesn't have great difficulty telling people no. I think he'll address what he believes his duty would suggest that he should address, but won't give us an expansive narrative. That's more for the political process on the Hill. 


Harry Litman [00:10:18] Well maybe. I might be a dissenter here, remember he he did for example a report in private practice. What's the, what was the matter that he took up-?


 [00:10:27] [00:10:27][Inaudible]. [0.0s]


Harry Litman [00:10:27] Well yeah that was one hundred page plus. Of course he had a lot of associates- well he's he's got people to help him here. But but but but I still you know he has a story to tell and I second Joyce's point. OK, he's leaving now. Why now? 


Matt Miller [00:10:39] I think you have to put the president in one category and everyone else in a different category. Because of this DOJ-. 


Harry Litman [00:10:45] We've got nodding heads here, I just want to report that-. 


Matt Miller [00:10:48] Because this DOJ opinion that the president can't be indicted, I think there's a possiblility that when Mueller's done there are other crimes to be prosecuted that he refers to other U.S. Attorneys' offices. I can't imagine Donald Trump Junior's in that category. That's a big thing to put on somebody else's plate. That's a lot of weight. 


Harry Litman [00:11:02] So you think he's concluded that he's that he shouldn't be indicted-? 


Matt Miller [00:11:05] Or Donald Trump Junior gets indicted and it gets handed off to someone else to prosecute. But he's made the decision to do it. But I think more likely Don Junior, probably nothing happens to him. 


Paul Fishman [00:11:14] One other point about Mueller. So if you go back to first principles, why is Bob Mueller there to begin with? Bob Mueller is there to begin with because Jeff Sessions was very involved in the in the president's campaign. Jeff Sessions was very involved in the part foreign policy aspect of the president's campaign. And then there was an allegation that that Jeff Sessions may not have exactly told the truth during his confirmation hearings about his contact with the Russians. The reason Jeff Sessions recused himself was for those reasons. That left Rod in charge. Rod of course was himself essentially kind of a witness to the to the Comey firing and whether that might or might not have been obstructive conduct. And so when Rod decided to appoint Bob Mueller as the special counsel in May of 2017? 2017, you know those those things were those things existed, and there was no head of the criminal division. There was no U.S. Attorney yet presidentially appointed in the Southern District of New York or in D.C. or in Virginia. And so there was really no political appointee who was charged with the responsibility for overseeing all of this stuff. 


Paul Fishman [00:12:15] The world is very different in March of 2019. Bob Mueller knows Bill Barr. And my guess is that at this moment in time, even though Barr and Rosen and Benczkowski never have been prosecutors themselves, I think there's a real reason to believe that Mueller may actually trust them at this point in the process to take this over, to do it right and to supervise the investigation in a way that is not connected to the president. In other words, the original justification for Bob Mueller's appointment is now basically gone. 


Harry Litman [00:12:44] I mean that is a great point, we now have actually have a professional infrastructure at DOJ. It's not the Matt Whitaker's or even the Jeff Sessions of the world so maybe Mueller will conclude that. But here maybe this is the sort of exit question on on this and it brings in Neal Katyal's point. I think there's sort of two models of what we're supposed to be expecting from Mueller. One could just be, and this is in the Regs, a bare statement of who I decided to prosecute, who I decided not to prosecute and maybe as to the latter not even giving the details because - as Barr says at the confirmation hearings and as Comey you know stepped in it in October 2016, we don't reveal that. All right. That's one model. The other model though is the actual marching orders that Rosenstein gave him. I mean it does seem to me that he is responsible for not just a series of prosecutorial decisions, but an investigation, a story, a narrative that explains what happened in the 2016 election. It's that aspect that clearly is incomplete and we lack the final chapters of. So what sort of product do you expect, and is the basic notion that he is that he is soon to be finished another way of saying, 'His work was really these series of prosecutorial decisions and not a broader investigation that told the American people what happened with Russia in 2016?'


Joyce Vance [00:14:06] You know he's told us a story in many regards right. If you haven't, you should go back and read certainly the troll farm indictment and the hacking indictment. They have much richer detail. I think you know Paul, you and Harry would agree, than we typically put into these sorts of conspiracy indictments. And in some ways that may be the real meat of the Mueller Report. There is a part of me that would love to have a long narrative story where Mueller tells us everything that he found. I don't think it's realistic. There's a longstanding DOJ policy that we've talked about that you don't talk about people that you don't indict, cases that you don't indict. You do that to avoid reputational damage and to avoid pulling people through the mud. And that's what really got so many people including you know Rod Rosenstein agitated about Jim Comey. So it's hard to see how you violate that policy, but I do get the conflict right because this is so unique, so unprecedented. Hard to see how the country moves forward unless we get a real accounting for whether the Trump campaign had contacts with Russia that were designed to influence the election. Very hard to see how we go forward without that. 


Matt Miller [00:15:14] I agree it's hard to go forward without that, but he's a prosecutor, not a truth commission. And if we wanted to get the answer, not beyond a reasonable doubt that you would prove in court, but the answer that you would write for a report like the 9/11 Commission did, we should have had a 9/11 Commission. That of course is beyond DOJ's mandate, and it's beyond Bob Marley's mandate. But I do think there may very well be an exception to this if it relates to the president, for this reason, the thing that Rudy Giuliani has used as a shield for the last year, that the president can't be indicted, becomes a sword for the Justice Department or at least for Mueller, if he wants to tell a story. Their usual rule, indict or shut up, I don't think applies if you can't indict. So there may be a reason that he answers this question as it relates to the president in a way he wouldn't as it relates to other people on the campaign. 


Joyce Vance [00:15:55] If Bill Barr will let him. 


Matt Miller [00:15:56] If Bill Barr will let him, or if subpoenas can drag it out over Bill Barr's objection. 


Paul Fishman [00:16:01] Right. First of all, it's not whether Bill Barr will-. 


Harry Litman [00:16:02] And if he doesn't let him, he's got to tell Congress that he didn't let him. 


Paul Fishman [00:16:05] I think that's right, but but keep in mind also, to play devil's advocate just for a second, there is precedent here right. In 19- in 1973 Leon Jaworski sent a report to Congress detailing the actions of then President Nixon. There's no, there's actually no- there was no protocol at the time, there was no regulation at the time, the report clearly contained information that came from the grand jury. At the time the rules of normal procedure as they do today precluded grand jury material from being disseminated quite that way. They did it anyway. I think they did it with the approval of the of the- Judge Sirica. But but there was no there's no record of an application having been made that justified doing it. Ken Starr wrote a report about Bill Clinton that would that was in, to many people unseemly in its detail, but was but was pretty detailed. So there is that kind of precedent. 


Paul Fishman [00:16:54] And then let me make one other observation. There is a context in which the Department does do that. If you go back for example and you look at the report of various interactions between the police and the community, and in particular if you go to Missouri right and you look at the shooting that took place in Missouri probably five years ago I guess, and when the Department declined to prosecute that police officer, that report is 80 single spaced pages. Witness by witness accounts of what happened. Some of that information must have come from the grand jury is my guess, but I don't really know. But there are occasions in which the Department of Justice does, for instance in Ferguson, the Department does from time to time say that public interest really does require that the community be informed about how the Department reached a decision, and that's a situation in which they've done it before and this - Matt's nodding his head - this may be a situation in which the public's interest, the public's need to know supersedes other norms that would otherwise constrain the Department-. 


Harry Litman [00:17:48] The investigative decisions are important, but the imperative here of finding out what happened is in some ways is even more important. It is like a 9/11. It is like a Kennedy assassination. So if it's not from Mueller, we're going to have to look for down the line some hundred page or 500 page report from Congress, but it just can't be that at the end of the day there will be important information about this that will stay buried within the catacombs of the Department of Justice. 


Matt Miller [00:18:18] There are a lot of questions I want to know the answer to. But the biggest one is, Did the president commit a crime? Either in the campaign by conspiring with the Russian government or in office by obstructing justice. And I don't know whether we get that answer in a report that Mueller issues or by Congress subpoenaing the Department and dragging every piece of evidence, witness interviews, everything out of the Department to find out the answer to that question. But that has to be answered for the American public. 


Harry Litman [00:18:42] And we're going to have to leave it right there. Thank you very much Paul, Joyce and Matt. And stick around please because we'll get back to the conversation and a different topic in a minute. Right now we're introducing a new kind of segment on Talking Feds. It's called Sidebar. Each episode we'll bring you a different little lesson in federal prosecutorial practice, brought to you by a person from another walk of life. Some of them you may have heard of. [Music] By the way, perhaps you recognize the music we're using in the show. It's by world famous composer Philip Glass, who happens to be a friend of the Talking Feds. Such a good friend that he is going to read this week's Sidebar. 


Philip Glass [00:19:27] What is a U.S. Attorney? A U.S. Attorney is the chief lawyer for the U.S. government in a given federal jurisdiction. For example, Harry was the U.S. Attorney for the Western District of Pennsylvania, which includes Pittsburgh. The U.S. Attorney's Office prosecutes criminal cases on behalf of the government of the jurisdiction. It also oversees civil cases involving the federal government in that jurisdiction. U.S. Attorneys are appointed by the president and confirmed by the Senate. Lawyers who work for the U.S. Attorney in these jurisdiction are called Assistant U.S. Attorneys, or AUSAs. This is Philip Glass. [End music]


Harry Litman [00:20:11] Thank you very much Philip Glass. So there you have it. One of the things we aim to do in these sidebars is to give the quick explanation for some of the basic concepts and terms that are thrown around on the cable shows. United States Attorney. That's what Paul, Joyce and I did. We were the chief federal law enforcement officers in our respective judicial districts. 


Harry Litman [00:20:32] OK, on to our next topic. It is Wednesday in Washington D.C. and we picked an amazing day for the pilot of Talking Feds because this morning Paul Manafort was sentenced for the second time this month. As you know, last week Judge T.S. Ellis in the Eastern District of Virginia had given him a sentence of forty seven months which many people found surprisingly, even distressingly low. Today Judge Amy Berman Jackson sentenced him separately for another three and a half years for the crimes to which he pleaded guilty in Washington D.C. But in a dramatic plot point, only minutes after Judge Jackson handed that sentence down, the New York District Attorney's Office announced its own fresh indictments of Manafort. So his legal battles are far from over and the complexity of the Manafort story just increased exponentially. 


Harry Litman [00:21:30] So Feds, here's my question to kick this off. What happens now to Paul Manafort? When when if ever does he see the outside of a prison cell? What will be the relationship between the state and federal systems? Where where does he go, are there other charges to come? What's life have in store for Mr. Manafort at this point? Matt, you want to start us off? 


Matt Miller [00:21:58] Well so let's start with the fact that he's got six and a half years roughly when you take into account the time he's already served, that he's supposed to spend in jail. He could get a little time off that for good behavior, although if you look at the fact that he's committed to commit crimes while he's been incarcerated already, I'm not sure you can count on him getting good behavior-.


Harry Litman [00:22:14] Could run the craps game in prison, right? 


Matt Miller [00:22:16] Again. Yeah he could. Look I think there are two big questions about this. One is, is he ever convicted in New York or in other states - he could have tax issues in Virginia and maybe other states - is he convicted of those crimes and does he have to face state sentences? And the second is, Does the president pardon him or commute his sentence or some other in some other way reach into the justice system and release Paul Manafort either cause him to be released either now or say in November December 2020, after he's either been re-elected or been voted out of office? Hard to answer that question, but the president just this afternoon was saying sympathetic words about Manafort again about what a victim he is and how he's been mistreated by the system. So, clearly quite sympathetic to him. 


Harry Litman [00:22:57] Joyce, what do you think? Does he ever see his loving wife again who he who he pleaded in front of Judge Jackson today was the reason he should have mercy? 


Joyce Vance [00:23:06] Manafort and Trump seem to spend a lot of time signaling to each other. It's almost as though the president is saying you know, "Stay strong, buddy." And Manafort is telling him, "OK. You know I'm still on your team." Probably if they were doing that privately and if we were somehow uncovering their communications back and forth, prosecutors would be looking at that a little bit askance, but it's all going on in public. So one of the big questions here is whether or not Trump will feel like he has the political capital, either on his last day in office or maybe just after re-election, to pardon Manafort. I'd like to live in a world where I think that there would be political accountability for someone who pardons an individual who declined to give evidence against them. But we all know that there is at least some precedent for that happening and that it's not a perfect world. So I think that there's a fairly good chance that at some point Manafort does get, maybe more likely a commutation of sentence, as Matt says, where the president shortens his sentence and says he's now served enough time and he can be released. That seems to me to be a fairly likely outcome here, which makes it I think more interesting that Cy Vance, the Manhattan District Attorney, has reindicted Paul Manafort-. 


Harry Litman [00:24:17] Right, I mean maybe that's the answer to the accountability. You think of the system sort of writ large, state and federal, and surprise surprise there's a countermove here to which Trump doesn't necessarily have a response. Paul? 


Paul Fishman [00:24:30] I'm sort of, three things I'm thinking about. One is you know President Trump keeps talking about the unfairness of the Manafort prosecution. I mean the truth is leaving aside whether the president is entitled to his view about the the the bona fides of an investigation of Russian collusion and whether that actually turned out to be a crime or not, but, which the president I have very different views, Paul Manafort laundered like 60 or 70 million dollars-. 


Harry Litman [00:24:57] Over 10 years! 


Paul Fishman [00:24:58] And failed and failed to report income that in the in the 10, 20 million dollar range. Legally, I don't understand how anybody can think that that prosecution on its own without the president of the United States having hired him as his campaign chairman, is not a righteous prosecution. This is a guy who for years and years and years thumbed his nose at almost the entire catalog of the federal criminal code. And so this, so that's first. Second of all, the president keeps saying that, 'Manafort was basically investigated and charged because I'm the president.' There is no way, if you look at the complexity of the charges that were filed by the, by Bob Mueller in October of 2017, that that investigation was only five months old at that point. This investigation-.


Harry Litman [00:25:42] We know for a fact it was open before that- 


Paul Fishman [00:25:43] Right. And so there's. So the idea that that investigation really had legs because of the president of the United States and because Manafort worked for him, is just completely wrong. Third thing I'm going to say is, you asked sort of what happens to Manafort now. Well, Manafort is in federal custody and is now a sentenced federal prisoner. And so what happens next is, because he's now been indicted by the Manhattan D.A.'s office, is he's got to go to New York to answer those charges and he doesn't get on the Acela to do that. He's going to be taken there in the custody either of federal- federal prison officials or the United States Marshals, or somebody who's sent down by Cy Vance from New York to get him. And when he gets to New York, he's not going to be staying in his old apartment in New York. He's going to be staying either at the Metropolitan Correctional Facility, which is the federal detention facility in New York, or he's going to be in the custody of the New York City Police Department somewhere. And that's not going to be happy for him. 


Harry Litman [00:26:38] By the way, his old apartment, which was the source of the problems here, the mortgage fraud application - I took this crime very seriously because it was on 29 Howard and I lived for several years on 27 Howard Street, and I know the block. And we don't we don't take kindly to mortgage fraud folks. 


Harry Litman [00:26:54] OK. So so while Vance has come forward you know there's obviously has a feel of double jeopardy I mean people out there listening might wonder how can somebody be prosecuted in New York State for for conduct that seemed similar to what was in the federal system? There is the answer that the system overall gives which is two sovereigns. We have the United States and you have New York, just like you could have the United States and you could have Peru, they you know that's that's what feels a little bit like a fiction under the Constitution. Now New York has a special protection where they won't prosecute just any time that there's been a federal prosecution, I have to believe, does everybody here agree that Cy Vance, in bringing these charges, the first thing he would have done is button up just this point. That is, while there'll be a lot of litigation over the double jeopardy point, we it's fair to assume that under New York law, the double jeopardy defense won't prevail?


Matt Miller [00:27:58] I would think that's the case with any other prosecutor, and I'm not trying to unnecessarily cast aspersions on Cy Vance, but he's been criticized for his office having investigated Ivanka Trump for misleading investors' in a real estate venture, and the circumstances on which they decline- under which they declined to prosecute Ivanka have been questioned. And I think her attorney gave big donations to Vance. So in some ways, whether this prosecution bears fruit or not, it's a winner for Vance-


Harry Litman [00:28:27] Oh, it's like a win win. 


Matt Miller [00:28:28] Because politically he can turn around- remember, he has to get re-elected. And you know having gone easy on a Trump family member is not a great thing in Manhattan right now. And you can see why this would be a way for him to clean up that blot on his record. So you're probably right, that would make the most sense. But you know not the worst thing for him-. 


Harry Litman [00:28:44] Maybe not. 


Matt Miller [00:28:44] To bring a prosecution that gets thrown out. 


Harry Litman [00:28:46] Well what about just the general point then, whether whether through New York or there's also potential jurisdiction in Illinois, California, I think Virginia. Do we think Paul Manafort is basically cooked that you know he will, he's unlikely ever to see the outside of a jail cell in his in his life? Any thoughts about that, Joyce, Paul?


Paul Fishman [00:29:08] I'm not sure that that's right. I mean I mean you know Matt did the calculation before, he's in jail for the next five or six years on the federal charges and and the next thing that's going to happen is he's now going to New York. Leaving aside the double jeopardy question and you know if you look at the indictment since, he's indicted- aside from the mortgage fraud, for which he was indicted in the federal case, he's also indicted for various false statements that may come with, that may not be violations of federal law that may just be violations of state law, in which case the double jeopardy argument would be a little harder for the defense. But at the end of the day-. 


Harry Litman [00:29:40] They're different statements, right? Those are different states. 


Paul Fishman [00:29:42] So so. Right, but what I what I see here is Cy Vance not saying that that seven and a half years as a prison sentence for Paul Manafort wasn't enough - although honestly I don't think seven and a half years for the the breadth of Manafort's crimes would have been enough for most prosecutors and many judges in the country. But I think this is an insurance policy, effectively. What what Cy Vance is saying is, "Mr. President you can think about pardoning him for the federal crimes but I'm telling you even if you do that I'm going to prosecute him with everything I can figure out I can prosecute him for under New York law. He's a bad guy. He should go to jail." That's that's I think what's happening here. 


Harry Litman [00:30:15] That's a great way to put it. Insurance policy. What do you think? 


Joyce Vance [00:30:17] That's right. You know it may be that what Matt's saying is true, it may be that Cy Vance has purer motivations than that, we don't really know. But what's clear is that they approached this in a very deliberate way. It's a 16 count indictment. They've got residential mortgage fraud claims, they've got conspiracy claims, and then there's this series of I'm not sure six or seven counts that involve falsification of business records. So it looks to me that they were very careful to find counts that they could get past the double jeopardy barrier at least some of them. Those counts presumably will carry sufficient time. And you know most defendants when they're given the option of serving their sentence in either a federal prison or a state prison, they'd much rather spend their time in federal prison. Manafort has effectively removed that choice from his own hands and is letting Cy Vance make it for him.


Harry Litman [00:31:10] Again this could go on and will, in Manafort's case now, for weeks and months. I'll just take as the sort of headline of today that people were were galled by Ellis's sentence, people did think, as with Paul, that it was overall lenient. But it seems pretty clear to me that in the important sense that in fact especially when you calculate his health that Manafort is in fact basically cooked, that you know it's not going- we won't see him sort of you know out and about any any time, not just soon, but in his life, that he will can expect to be under indictment or incarcerated basically indefinitely. You agree?


Paul Fishman [00:31:52] Well prison is not a great place to be, ever. And it's certainly not a great place to be if you're-. 


Harry Litman [00:31:56] He's aged a lot the last 6 months, by the way. 


Paul Fishman [00:31:57] If you're, if you're 69 years old. And I don't mean to suggest in any way by what I said before that we should lose our humanity and whether somebody should or shouldn't go to prison and for how long. But in Paul Manafort's case, you know you know the odds are he will be released from prison you know probably in six or seven years maybe or maybe earlier. But but by then he will certainly not be a figure in public life anymore. 


Matt Miller [00:32:20] I think he's going to serve a long sentence that's not long enough. I think-. 


Harry Litman [00:32:24] Well, but longer than six years? In other words, you see him doing state time? 


Matt Miller [00:32:27] Probably. But look Paul Manafort, aside from being someone who embarked on his decade long criminal spree, is also- and this came up in court again. He's a terrible person. He's just a terrible human being. There's something in court today that I found really galling, when he talked about, he begged for mercy and by saying he was the primary caregiver for his wife. This is something we don't talk about on television. Reporters don't write about this because they don't know how to, but Paul Manafort's wife suffered a tragic accident and now suffers from brain damage. His daughters, his two daughters' texts were hacked at some point a few years ago. And the content those texts, which is available, I will do the sanitized version, but you can google it, is that Paul Manafort used to take his wife around the world to participate in what let's just say unusual sexual behavior at his insistence. For him to, after having done that, to hold her up in court as a reason why he ought to get a lenient sentence I think tells you exactly what kind of human being he is. And I think the time he serves won't be long enough to be you know to, to account for the full range of his misbehavior. 


Paul Fishman [00:33:31] That's a great point. 


Joyce Vance [00:33:31] Yeah, I couldn't agree with that more. I mean I think that this sentence is technically defensible legally. As a prosecutor, I mean I wonder how you would feel- I would be hot at the end of this one. If I was still at DOJ and Matt was still in the office of- the Press Office that he used to run, I'd be asking him if I could release a statement calling out the sentences being inadequate, and I'd probably be looking into whether or not I could appeal it, even though it's really difficult to appeal a sentence. 


Paul Fishman [00:33:59] See, that's the difference between Alabama and New Jersey, Joyce, you would have asked, I wouldn't have asked. [Laughter]


Matt Miller [00:34:04] It's true. 


Harry Litman [00:34:05] It's a good point to end on about man on about, about DOJ. People are wondering about appeal, it would have to be approved by the Solicitor General. Appeals of sentences, given the discretion that district courts are given are very rare and hard to win. That's point one, and point two, the Department is very circumspect and very discriminating about when it will come out and be critical, even if everybody you know from from floor 7 down knows that it would that that there was a miscarriage of justice. It's a very you have to run a real gauntlet to get permission to make that kind of statement. 


Joyce Vance [00:34:41] Yeah. You know I think that that's right, it's, it's rare. I actually there was a point in time some cases when I was U.S. Attorney where we did appeal sentences after Booker, which was the Supreme Court case that really changed how sentencing worked in the criminal system. I think the sentence that we heard in D.C. today is probably airtight. It has occurred to me to wonder whether the Department is contemplating appealing the sentence in Virginia, possibly because the judge didn't consider all of the factors he needed to consider. I think there too it's very unlikely that there will be an appeal. 


Harry Litman [00:35:14] You know on this guy I feel that we could go for a couple more hours, but we're out of time and we've just about reached the end of the show. Before we go, we want to give our listeners some airtime by letting, we've solicited from the listeners a question that we, the former Feds, have to answer in five words or less. And today's question comes from [00:35:36]Brad Patrick [0.6s] in Tampa, and he asks, "Can you indict a sitting president, yes or no?" So panel, can you please answer that in five words or less starting with Mr. Fishman?


Paul Fishman [00:35:51] Interesting. Doesn't matter. Not happening. 


Joyce Vance [00:35:54] Only if the Attorney General says so. 


Harry Litman [00:35:56] Want to revise that? 


Joyce Vance [00:35:58] I'm from Alabama, it takes us longer to say things-. 


Harry Litman [00:35:59] A little more prolix. OK. 


Matt Miller [00:36:01] Not when Bill Barr is AG. 


Harry Litman [00:36:03] And I'll go with both of- I agree with Matt, Paul. [Laughter]. 


Harry Litman [00:36:11] All right. Well that's it for our very first episode of Talking Feds. Thank you Paul, thank you Joyce, thank you Matt, for all of your insightful contributions. Were they insightful, do you think?


Paul Fishman [00:36:21] I don't know whether they were insightful, but it was great it was great to be with you Harry, today. 


Matt Miller [00:36:24] Joyce's were. 


Paul Fishman [00:36:25] Yeah. Exactly. 


Joyce Vance [00:36:26] I was going to say the same thing about you but not so much about him. 


Harry Litman [00:36:29] Yeah exactly. Well I don't know maybe people won't know whose voice is whose anyway except you, Joyce. Yeah. All right. But if you liked what you heard please subscribe in iTunes and tell your friends about us. The next episode will feature former Feds Elliot Williams, Elie Honig and Julie Zebrak. You can follow us on Twitter at Talking Feds Podcast or Talking Feds Pod, whichever gets you there, to find out about future episodes and other Feds related content. And you can also check us out on the web at Talking Feds dot com. And don't forget to submit any questions to Questions at Talking Feds dot com whether it's for Five words or less, or General questions about the inner workings of the legal system for our Sidebar segment. Thanks for tuning in. And don't worry, as long as you need answers, the Feds will keep talking. 


Harry Litman [00:37:26] Talking Feds is produced by [00:37:28]Joel Oloccur, [0.4s] David Moldavon and [00:37:30]Rebecca Jackson. [0.4s] Production assistance by Sara Philipoom and[00:37:34]Amanda Zolten. [0.4s] Graphic design by [00:37:36]Alex Honess. [0.4s]The incredible Philip Glass graciously let us use his music. Special thanks to [00:37:42]Diane Seamus, Steve Lichtenberg, and Holly and Andy Clubock. [3.7s] Talking Feds is a production of Dalito LLC. 


Harry Litman [00:37:50] I'm Harry Litman. See you next time. [End music]