Manafort pardon doesn’t remove risk of civil forfeiture

Manafort pardon doesn't remove risk of civil forfeiture

Paul Manafort, a Republican Party long-time campaign consultant, was largely responsible for the strategy and messaging campaign that helped Donald Trump win the presidency in 2016. Manafort resigned or was fired from the Trump campaign after it was disclosed that he received millions of dollars in cash payments from Ukraine's deposed pro-Russian former president, Viktor Yanukovych.

Manafort's connections to Russia and Ukraine drew the attention of special counsel Robert Mueller. In 2018, Manafort was convicted in federal court of money laundering, tax fraud, the violation of the foreign agent registration law, lying to the Department of Justice, and witness tampering. He was sentenced to prison and fined. In addition, real property he owned was subject to criminal forfeiture.

On Dec. 23, 2020, President Donald Trump, prompted by his continued grievance about the "Russian collusion hoax" and the Mueller investigation, gave Manafort a presidential pardon. As a result of the pardon, the acting U.S. attorney for the District of Columbia, Michael Sherwin, moved "to dismiss all remaining assets for which no final order of forfeiture has been entered," which included three real properties in New York. On Feb. 26, Judge Amy Berman Jackson granted Sherwin's motion, and entered an order vacating the court's earlier decision directing the forfeiture of real property owned by Manafort.

But Judge Jackson's order may not be the end of the matter. It doesn't address the possibility of civil forfeiture, which does not require a criminal conviction. Although criminal forfeiture is an in personam action and requires the indictment of the property used or derived from the crime, civil judicial forfeiture is an independent action filed in rem against the property itself, rather than against the person. To prevail in civil forfeiture, the DOJ would be required to prove that the property represents criminal proceeds or facilitated criminal activity.

The president's constitutional pardon power is "to grant Reprieves and Pardons for offenses against the United States." Article 2, Section 2, Clause 1. The power is limited to federal criminal offenses. The judicial view on the legal effect of a pardon has shifted with time. One older view is that the pardon obliterates both the conviction and the guilt, and thus the person pardoned is treated as though the criminal offense was never committed. But even if the offense is treated as never having occurred, civil forfeiture is not precluded by a pardon.

More recent case law suggests that a pardon only removes the punishment for the crime without addressing the guilt of the offender or other consequences related to the conduct in subsequent proceedings. Once again, civil forfeiture is not precluded. The facts agreed to and acknowledged in the plea agreement by Manafort exist as an independent basis for civil forfeiture.

The Manafort plea agreement (1:17-cr-201-ABJ), which was voluntarily entered into in accordance with Rule 11 of the Federal Rules of Criminal Procedure, reflects this understanding on the purpose and role of civil forfeiture. The agreement contains a forfeiture section that anticipates the possibility of a presidential pardon for Manafort's criminal offenses. Numerous references in the agreement recognize and reserve power to the DOJ to proceed on this theory:

"Your client agrees ... to waive all interest in such assets in any administrative or judicial forfeiture proceeding, whether criminal or civil, state or federal. Your client agrees that the facts ... establish that the Forfeited Assets are forfeitable to the United States. Your client further agrees that the government may choose in its sole discretion how it wishes to accomplish the forfeiture of the property ... whether by criminal or civil forfeiture, using judicial or non-judicial forfeiture processes. Your client hereby abandons any interest he has in all forfeitable property ... and agrees not to interpose any claim ... in any civil or administrative forfeiture proceeding."

Finally, the plea agreement makes clear that it is intended to survive the "abatement of any underlying criminal conviction" after the execution of this agreement. Trump's pardon and Jackson's decision dismissing the criminal proceeding would constitute such an "abatement." The facts supporting the plea agreement don't simply disappear because of the Trump pardon.

Sherwin, who was appointed in May 2020 by former Attorney General William Barr, was recently replaced by the DOJ leadership by Channing Phillips, who will serve on an interim basis until a permanent appointment is confirmed. The possibility of civil forfeiture shouldn't slip through the administrative cracks without careful administrative review by Phillips or his permanent replacement. There may be sound reasons for not pursuing the civil forfeiture as a collateral consequence. But the public should be told the reasons for any continued forbearance in order to restore public confidence in the DOJ and its decision making. 