Below is my column in the Hill newspaper on the continuing jury deliberations in the trial of Paul Manafort in Alexandria, Virginia. Defense counsel generally take heart in the passage of time as an indication that the jury is having difficulty in reaching a verdict. However, it can be deceiving. I took over a case in this same courthouse after a jury deliberated over a week and still convicted on all counts.
Here is the column:
“Overall, a good day for Mr. Manafort.” Those words of Kevin Downing, a defense lawyer for Paul Manafort, came at the end of the first day of jury deliberations this week. The sense of relief after the jury failed to bring in a quick conviction of all counts and then asked for a further definition of what constitutes “reasonable doubt” was enough for one of the defense team members to proclaim, “We’re still in the game!”
Never has such inertia prompted such excitement, but that is the reality of Manafort’s curious criminal defense. There is a very solid reason why the absence of bad news is good news for him. The prosecution brought in an array of witnesses, from Manafort’s accountant to his former close aide, Rick Gates, who presented a consistent and damning record of hidden accounts, shrinking income and an opulent lifestyle.
In response, the defense offered relatively little to knock down the hundreds of documents showing foreign accounts and unreported income. Instead, from the opening to closing statements, the defense trashed Gates and suggested, implausibly, that he was behind the elaborate misrepresentations and secret transactions. The defense succeeded in painting Gates as a true low life who cheated on his wife and stole money from Manafort. That was not particularly difficult.
The problem is that the prosecution did not have to make Gates look better than he is. They just needed to show that Manafort was worse. They succeeded in making Manafort look like a spendthrift gallivanting around the world in his $15,000 ostrich jacket while shifting money from 15 unreported foreign accounts. As his Ukrainian patron ultimately fled in disgrace, Manafort found himself with towering expenses and collapsing income. Moreover, as bad as Gates was, he was the man that Manafort wanted by his side during years of shady dealings and associations.
This was never a trial strategy for an acquittal. If Manafort was going to fight for acquittal, he would have put on a defense rather than resting at the conclusion of the prosecution’s case. He would have offered an alternative narrative. Indeed, proving Gates was a sleaze did not depart significantly from the government’s narrative. Gates appeared as a cooperating witness precisely because he admitted to engaging in crime.
Indeed, even Manafort’s accountant demanded immunity from prosecution due to her belief that her filings for her boss were criminal. Manafort needed to offer an explanation in which his own conduct and associations could be viewed in an innocent light. We will never know if he could have presented such a defense, since he not only refused to take the stand but also refused to put on defense witnesses.
The defense was a hung jury strategy combined with a rather obvious pardon strategy. Manafort’s best hope is that a few jurors will harbor doubts. All he needs is one holdout when the government must secure a unanimous verdict. That would mean he could be tried again, but a none decision can be the best decision when you are not seriously attacking the evidence. Of course, the problem is that it is easy for a defendant to hang by his own hung jury strategy. A jury can deadlock on some but not all counts, leaving Manafort bearing a decade of potential imprisonment.
Manafort clearly is also maintaining a pardon strategy. He repeatedly shut the door to cooperation with special counsel Robert Mueller when others, like Michael Cohen, are desperately seeking a deal. Even the trial judge remarked that this is an obvious effort by Mueller to turn Manafort against President Trump. Yet, Manafort has remained silent and uncooperative.
The pardon strategy became all the more plausible on Friday after the jury asked to suspend deliberations for the weekend. Trump commented on the trial on the White House lawn, declaring, “I think it’s a sad day for our country,” adding, “He happens to be a very good person. I think it’s very sad what they have done to Paul Manafort.” It was an unprecedented moment as a president trashed the prosecutors of his own administration. Then Manafort actually responded through Downing, who said that he “really appreciates the support of President Trump.”
It was a bizarre conversation in public between a defendant and the head of the government prosecuting him. Trump’s statement on the trial and on Manafort triggered the latest round of calls for impeachment. In Washington Monthly, David Atkins simply wrote, “That is a crime. It’s called jury tampering. The president has a legal obligation to refrain from commentary in an ongoing trial that directly impacts him, particularly from denouncing his own government’s case against the accused.”
It is actually not even an express legal obligation, though presidents have uniformly respected the legal process by refraining from such public statements. It is most certainly not jury tampering. First of all, the jury was already deliberating and ordered not to read or watch coverage of the case. How it can be jury tampering with a jury that is barred from hearing the statement is a mystery. Second, even if the jury violated court orders and listened to the words, it is not jury tampering to criticize the special counsel’s prosecutions. Thus, it is not true that “the president just committed another impeachable crime today,” as Atkins state. Yet, that does not make the president’s comments appropriate or accurate.
It is true that a conviction would say little about the merits of the special counsel investigation, since the allegations against Manafort are entirely unrelated to the presidential campaign. It would, however, say a great deal about Manafort. Just because these crimes are unrelated to the election does not mean that he is not a criminal. Frankly, Manafort did not come across as a “good person” in this trial, as the defense offered very little to suggest either good character or good excuse in his dealings. That is why a conviction in the coming week would clearly be a sad day for Manafort, but not necessarily a sad day for the country.