Did Manafort’s Lawyers Just Commit A Serious Violation In Its Closing Argument? [Updated]

ManafortThe end of the trial of former Trump campaign chair Paul Manafort today proved controversial after the defense counsel made reference to the alleged selective prosecution by the Special Counsel. If accounts are accurate, it would seem a direct violation of the prior understanding with the court that no party was to make reference to selective prosecution and the Special Counsel investigation of President Donald Trump.

According to reports, the defense team made reference to how the underlying loans by Manafort were not matters of concern until the “Special Counsel” entered the field and then “stack up the counts.”  That sounds awfully like special prosecution – a major issue raised in pre-trial hearings. The defense also referenced Manafort’s work as campaign chair for Trump, which is not a direct violation but reinforces the selective prosecution argument.

There was a pending motion in limine that was mooted due to the agreement of the parties.  However, the court ordered that references to any decision not to prosecute by prior prosecutors was grant.  This is from the docket for July 24th:

ORDER for the reasons stated from the BenchORDERED that the government’s motion in limine to preclude defendant from presenting argument or evidence at trial that the Special Counsel was not authorized to prosecute this case is DENIED AS MOOT.ORDERED that the government’s motion in limine to preclude defendant from presenting argument or evidence at trial that defendant was selectively or vindictively prosecuted is DENIED AS MOOT. ORDERED that the government’s motion in limine to preclude defendant from presenting argument or evidence at trial that any former government investigation of defendant ended with a decision not to prosecute defendant is GRANTED.

The prosecution showed considerable restraint and raised the issue after the jury left the room.  As discussed in my last column,  Judge T.S. Ellis III is known to controversial and unrestrained comments in this and other trials.  He has been unrelenting in his critical asides against the prosecutors in this case and has raised some potentially troubling issues.  Ellis did not reportedly say much after this issue was flagged by the prosecutors and took the objections under advisement.

If the accounts are correct, most judges would seriously consider sanctions for such a breach of an earlier order.  In the very least, an instruction might be issued to the jury.  It was clearly a premeditated and risky act by the defense.  While some lawyers may choose the option of “better to ask forgiveness than permission,” this seems a case of promising and then breaching.

What is surprising is that this comes after little significant progress made by the defense in the trial.  The defense did very little to rebut the criminal allegations against Manafort while attacking his former aide Rick Gates.  It then rests without presenting a single defense witness or having Manafort take the stand.  After the vacuum left by the defense during the trial, they have now tripped a wire of a potentially serious breach of the standing court order.  That is not an improvement.

We are awaiting a response from Ellis on what the Court intends to do after the objections from the government.

Update:  Ellis appears to have simply added an instruction that the jury should not consider whether the government had any special motive in pursuing Manafort. It was one of those warnings that cuts both ways. It reminds the jury that there may be a special or selective motive.  Ellis notably was far more restrained (at least so far) in dealing with the defense than he has been with the prosecutors.  In this matter, the defense was dead wrong in making the argument given the earlier agreement.

256 thoughts on “Did Manafort’s Lawyers Just Commit A Serious Violation In Its Closing Argument? [Updated]”

  1. The jury has adjourned until 9:30 am Monday. > 12 hours of deliberations and not done.

  2. Clinton News Network is reporting that the most recent note to the judge is to tell him that the jury’s hoping to wrap it up in two hours.

    1. The judge in Paul Manafort’s fraud trial said Friday he has received threats over the case.

      U.S. District Judge T.S. Ellis III made the comments as the jury deliberated for the second day, and as he rejected a motion to release information about the jurors. He said he’s confident the jurors would be threatened as well if their information was public.

      Ellis said that because of the threats against him, he travels with U.S. Marshals.

      “The Marshals go where I go,” Ellis said.

      Earlier Friday morning, Ellis, a famously prickly judge known for his colorful comments, acknowledged facing criticism about how he’s handled this case.

      Ellis told attorneys “I’m no stranger to criticism,” but said “this case has brought it to a new level.”

      Ellis was responding to a number of news organizations – the Washington Post, New York Times, AP, CNN, NBC, Politico and BuzzFeed – filing a motion to unseal records in the case, including information about the jurors.
      http://www.foxnews.com/politics/2018/08/17/judge-in-manafort-trial-says-hes-been-threatened-over-case.html

      1. Partisan Democrats are tweeting that Trump supporters must be behind the threats because reasons. Meanwhile, back at the ranch, the media wing of the Democratic Party wants the jurors names.

        1. Partisan Democrats are tweeting that Trump supporters must be behind the threats because reasons.

          Sure. And Brennan is an honorable, honest and trustworthy patriot that has selflessly served our country for a billion years. Same for Bowe Bergdahl.

          Is Jonathan Gruber drafting the Left’s talking points?

    2. easy for a judge to say, who decides important things all the time. the jury has a heavy burden! they should be allowed privacy and patience

  3. i am thinking aquittal is more possible than i thought before. why is jury deliberating so long? obviously an anxious moment for the prosecution

    1. Well it has to be Jury nullification. Because he’s technically guilty.

      Not that this was the way to handle it in a civilized society mind you.

      Our penal code needs a lot of work.

      1. Jury nullification was my thought as well Steve. Did he break the law, sure. But If they have any doubts as to why the defendant is now being prosecuted when the Fed’s took a pass before, then clearly they will see this as selective prosecution. Also, I don’t believe they will look favorably on the Feds giving Gates immunity on essentially the same crimes.

        1. If I’m not mistaken, they’ve been deliberating for > 10 hours at this writing. They submitted four questions to the judge yesterday. I think he might have answered one and told them to just cope in re the others.

        2. Also, I don’t believe they will look favorably on the Feds giving Gates immunity on essentially the same crimes.

          Per Andrew McCarthy, the properties of the plea deal were in violation of standing guidelines in effect in the Justice Department at the time he departed it in 2003. He said that had it been concluded in the Southern District of New York during his tenure there, it wouldn’t have looked anything like what Mueller gave Gates.

          Interesting shot from Howie Carr of the Boston Herald: Mueller was personally acquainted with all six dirty cops involved in the frame-up run out of the Boston FBI office. Chaser: Peter Sztrok’s first posting was in that same office.

      2. The jury wanted a recapitulation of the rules on foreign bank accounts. The judge told them to rely on their memory. They should have a printed transcript to which to refer. Or they would if the courts gave priority to some object other than the convenience of the people who work in them.

        1. did he have to file a fubar? lol

          i wasnt aware that the FACTA act was part of this whole thing who the hell can figure out the arcane FINCEN system anyways. it’s…….

          FUBAR

  4. “Selective prosecution.” That’s just priceless.

    There’s nothing wrong with that — right Turley?

    Every citizen in the entire country can get thrown in clink for something or other, and you don’t care.

    I’m kind of getting sick you.

  5. NBC News is reporting that the jurors have recessed for the day and are going home.

    Mespo? Mespo?

  6. There are reports the jury has sent a note to the judge, and that the note has four questions:

    1. Is one required to file an FBAR if they own less than 50% of the company and no signatory authority?

    2. Define shelf [sic.] company

    3. Can you redefine reasonable doubt?

    4. Can the exhibit list be amended to include the indictment?

    1. An off the shelf company is just one that is formed properly but essentially empty shell, devoid of operations. It is not per se illegal to form and “shelve” a company. Nor is it illegal for an empty shell company to be sold to someone who activates it and does business.

      However, they can be and are used to evade compliance with various laws. They are not per se illegal.

  7. As we speak, the jury has been deliberating for 7 hours. Supposedly, it’s customary in that District for jurors to recess at 5:30 pm, but they have the option of working into the evening.

    Andrew McCarthy believes the documentary case against Manafort is adequate, but that the sweetheart deal given Gates (contrary to Justice Department guidelines) will perturb the jury. What is odd if the case is so solid from the documents is that the Justice Department took a pass on it years ago.

  8. Of course they did. And Ellis will let them get away with it. Its is not like the jurors don’t know all about why the case was brought (to get Manafort to roll on Trump and for no other reason) anyway. Most of the Democrats on the jury won’t care. And the Republican’s on the jury (if any there be) will find ways to acquit or hang the jury.

    1. I wonder if Indian has a Meat Packer and Fudge Packer union, too? how do these guys find this place. LOLZ

  9. As a card carrying member of the unwashed rabble, I would like someone to explain why the defense was prohibited from telling the jury that all of this was looked at before and no prosecution resulted. Also, the DOJ website has a section that discusses the things that would disqualify a prosecutor. Mueller seem to fit at least one or two of the prohibitions. So what’s up???

    1. Whether it was looked at before isn’t relevant to whether he committed the crimes charged. Evidence of selective prosecution is only admissible in a very narrow set of cases given the discretion generally vested in prosecutors. Generally no one blinks when charges are brought to pressure someone into cooperating as long as there is sufficient evidence to support the charges.

      1. That might be well understood by those within the legal profession, but with the unwashed masses that sit on a jury, they follow their noses. And if the case reeks of selective prosecution, they might just go the nullification route.

        1. I’m sure this jury is literate and therefore able to work out that he didn’t offer a defence and had wads of evidence of criminal offences. It’s not Mississippi.

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