Paul J. Manafort Jr., President Donald J. Trump’s former campaign manager, has been swept up in Special Counsel Robert S. Mueller’s investigation into Russian interference in the 2016 election.
Manafort has been charged with Federal crimes in Virginia and the District of Columbia. The charges involve conduct that predates his stint on the Trump campaign. Among the charges in the D.C. case is an allegation that Manafort failed to comply with the Foreign Agents Registration Act (FARA), which requires individuals to register with the Department of Justice (DOJ) if they are lobbying on behalf of a foreign government. The FARA charge is Mueller’s gateway to charging Manafort with conspiracy to launder money, because the relevant money laundering statute requires the suspect funds to be laundered “with the intent to promote the carrying on of specified unlawful activity” (i.e., the alleged FARA violation). This means, theoretically, that if the FARA charges go away, then so do the money laundering charges.
Manafort could potentially beat the FARA charges on a claim of selective prosecution. Kevin Downing, Manafort’s lawyer, laid the foundation for such a claim in a press statement the day Manafort was indicted: “The United States government has only used that offense six times since 1966 and only resulted in one conviction.” Downing was likely referencing a 2016 DOJ Inspector General (IG) report, which found “only seven criminal FARA cases” were brought between 1966 and 2015.
A quick perusal of those charged with criminal FARA violations since 1966 reveals a troubling pattern of targeting high profile Republicans or their associates.
In 1986, John P. McGoff, a conservative Republican fundraiser and one-time newspaper publisher, was charged with acting as an unregistered foreign agent of the South African government. The charges stemmed from McGoff’s attempted purchase of The Washington Star newspaper in 1974. Prosecutors alleged that McGoff received $10 million from South Africa with which he attempted to make the purchase. According to the Attorney General’s 1986 report to Congress on the administration of the FARA, McGoff’s case represented “the commencement of the first criminal [FARA] prosecution in over 20 years charging solely a violation of the Act.” McGoff’s charges were eventually dropped, because they were brought outside of the statute of limitations.
Another FARA target was Sam H. Zakhem, who served as President Ronald Reagan’s Ambassador to Bahrain. Zakhem was indicted in 1992 and charged with failing to register as a foreign agent of the Kuwaiti government and tax fraud. According to a profile of Zakhem in a Colorado newspaper, “[t]he bizarre case eventually fell apart — Zakhem was acquitted on two charges [of tax fraud], and the rest were dropped — but not before it knocked him out of the race for the U.S. Senate.”
Samir A. Vincent was charged in 2005 with, and pleaded guilty to, acting as an unregistered foreign agent of Iraq. Vincent had a strong relationship with former Republican vice presidential candidate Jack Kemp, who named Vincent to a commission tasked with creating a “21st Century Marshall Plan” for Iraq. Federal Election Commission records show Vincent has made only one political contribution: $1,000 to California Republican Tom Campbell’s failed 2000 Senate campaign.
Next, former Republican Michigan Congressman Mark Siljander was indicted in 2008 on charges related to his alleged involvement in a lobbying campaign that sought to restore the Islamic American Relief Agency’s ability to receive money from government contracts. Siljander was squeezed until he plead guilty to a charge of acting as an unregistered foreign agent of the Iraqi government.
Selective prosecution claims arise under the “equal protection component” of the Fifth Amendment’s Due Process Clause. To succeed on a selective prosecution claim, Manafort would need to demonstrate that similarly situated individuals of, or associated with, a different political party could have been prosecuted under FARA, but were not, and that an impermissible motive (e.g., political animus) was behind the differential treatment.
The most notable example of differential treatment is South Korean businessman Tongsun Park, who was indicted in 1977 on 36 felony counts, including acting as an unregistered foreign agent of South Korea and conspiring to bribe (primarily Democratic) members of Congress. Rather than face prosecution, Park was given immunity in exchange for “truthful testimony” at the criminal trials stemming from the bribery scheme. A current case-in-point is the Podesta Group, which, like Manafort, recently filed retroactive FARA disclosures after being scrutinized by Mueller’s team. But unlike Manafort, no charges have been filed. The Podesta Group, it should be noted, was a top Democratic lobbying firm run by Tony Podesta, the brother of Hillary Clinton’s former campaign manager John Podesta. In sum, two people connected to Democratic lawmakers have managed to skate, whereas their Republican counterparts have been prosecuted or forced to plea.
The recent DOJ Inspector General report suggests that political animus is a factor in Manafort’s prosecution. Two examples from the report make this point. First, the former top FBI lawyer on Mueller’s probe sent “viva la resistance” in a message to another FBI lawyer, signaling their identification with anti-Trump “resistance” movement. Second, FBI lawyer Lisa Page and her lover Peter Strzok, who sent the smoking gun August 8, 2016, text message to Page saying “we’ll stop” Trump from becoming president, and suggesting the Russia investigation was merely a pretext to impeach Trump. Moreover, the heavy handed investigative tactics used against Trump associates in this investigation, compared to those used in the Hillary Clinton email investigation, strongly suggests a political double standard. Many have persuasively argued that such animus taints the investigation and any charges resulting therefrom.
The lead prosecutor in Manafort’s Virginia case recently filed a motion asking the judge to prevent Manafort from “presenting argument or evidence at trial . . . concerning selective or vindictive prosecution.” Acquiescing to such a request might have made sense in Virginia, where Manafort is not charged with FARA violations. But Manafort would be wise to contest a similar motion, if made, in his D.C. case, lest his legacy be that of a political prisoner.