Manafort Judge Wants to Avoid Politics. Good Luck With That
(Bloomberg) -- The judge overseeing the fraud trial of Paul Manafort wants politics barred from the evidence prosecutors will put on display about President Donald Trump’s former campaign chairman.
Tell that to the jurors.
U.S. District Judge T.S. Ellis III has already laid down ground rules for Manafort’s lawyers and Special Counsel Robert Mueller’s prosecutors -- no mention of Mueller’s motives, his Russia collusion investigation or Manafort’s role in the Trump campaign. And with one notable exception, Trump isn’t to be mentioned.
It’s anybody’s guess whether Ellis can pick 12 jurors and four alternates who will decide on Manafort’s guilt or innocence based only on the evidence and the law, and not on politics. When 70 potential jurors arrive in federal court in Alexandria, Virginia, for questioning on July 31, their views on Trump and Mueller may be just as divided as the rest of the nation.
“The political piece is the real wild card in this trial,” said Elie Honig, a former federal prosecutor. “It’s a prosecutor’s nightmare where one of these 12 jurors is strongly pro-Trump and believes it’s a witch hunt. If you get one juror who’s a serious Trump devotee, they could easily send a message that ‘I don’t like Mueller.’”
That will only increase the pressure on the judge and lawyers in picking the first jury tied to the special counsel’s Russia investigation, which has resulted in charges against 32 people. Ellis had the pool fill out questionnaires about their backgrounds, attitudes and interactions with the legal and financial system. He’s particularly focused on what jurors have seen or read about the case, but he draws the line at the ballot box.
“We’re not going to inquire into how people voted,” Ellis told the lawyers at a pretrial conference on July 23. “People can be fair and impartial no matter who they voted for.”
Any mention of Trump may come in through the bank-fraud charges. Manafort is accused of fraudulently securing mortgage loans from Federal Savings Bank, whose founder and chief executive officer, Stephen Calk, was part of the Trump campaign’s economic advisory panel.
At the July 23 hearing, prosecutor Greg Andres said the government would present evidence about a banker who gave Manafort a loan while knowing he submitted false data on his application. That banker got a job on the campaign through Manafort and was later denied a job in the Trump administration, Andres said. Although Andres didn’t mention Calk by name, Ellis referred to “the banker who went along with the fraud so that he could get a job.”
Manafort, 69, is accused of failing to tell U.S. tax authorities about millions of dollars he made as a political consultant in Ukraine before joining the Trump campaign. He’s also charged with lying to bankers to get $20 million in loans.
Ellis, 78, a federal judge sitting in Alexandria, Virginia, is famous for its “rocket docket.” He’s pushing the pace to an unusual degree for a complex fraud case involving offshore accounts, tax filings, bank records and immunized witnesses, including accountants. He wants the case tried in two to three weeks.
He’s also trying to cut down on gamesmanship during jury selection. After questioning the jurors for bias, the judge will seat 12 in the jury box. Prosecutors and defense lawyers can remove a limited number without having to state a reason. They can challenge others for cause. If lawyers don’t strike a juror in one round, they can’t do it later. This will quicken the pace.
On Wednesday, Ellis proposed removing 30 of the potential jurors for cause based on their questionnaires, and having another 25 come in to fill out new forms. On Thursday, prosecutors said that three of those people should remain in the jury pool because they affirmed that they could be impartial.
To prepare for jury selection, lawyers on both sides are probably mining social media accounts of potential jurors, experts said. With a series of Google searches, the attorneys will have several days of research prepared.
Ellis’s questionnaire didn’t ask jurors about how they get their news. But the penchant of Americans to share such information online will help lawyers figure that out, at least for younger and middle-age potential jurors. The judge rejected a request by Manafort’s team to query the pool about their news sources and political views.
The risk for lawyers on both sides is that one or more potential jurors might hide their biases to get on the panel and make a political point, said Harry Sandick, a former federal prosecutor. Those people may be more likely to share those views on Facebook, Twitter, LinkedIn and other sites.
“The lawyers can check their Twitter feed, for example, and see if they’re following Infowars or NPR -- that can give them tremendous insight that wasn’t available 20 years ago,” Sandick said.
That’s useful for weeding out people with extreme political views, according to Mimi Rocah, a former federal prosecutor who’s worked on trials for 16 years.
Judges spend a great deal of time lecturing jurors about the importance of deciding cases based only on the evidence, and jurors are almost always able to do so -- a fact that’s often overlooked by the public, according to Rocah.
“The only way our jury system works is if you trust that people are really going to put their political views aside and only decide the case based on the evidence in the courtroom,” Rocah said. “It’s drilled into their heads by the judge.”
Honig said jury selection “combines all the dark arts of psychology, superstition and pure guesswork.” Still, he said, it’s impossible to detect hidden biases in a jury pool.
“Jury selection is an incredibly difficult art that nobody’s ever mastered,” Honig said. “You just don’t know what lies beneath. There really is no way to get at if somebody is just a huge believer in Donald Trump. You can’t just come out and say do you believe this is a witch hunt, do you support Donald Trump?”
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