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Manafort’s Curious Defense: It Is Easy To Hang on A Hung Jury Strategy

ManafortBelow 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.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

120 thoughts on “Manafort’s Curious Defense: It Is Easy To Hang on A Hung Jury Strategy”

  1. R.Loon/Lies4Breakfast,
    Did you have any other inaccurate, irrelevant, petty observations that you wanted to make?
    If I miss your response here, I’m sure I’ll have another chance to see it on your early AM show.
    Happy trolling, regardless of whatever shift you’re working, or under which alias you’re performing under, slick.

  2. “given that Cohen has taped The Donald, I am not sure The Donald will feel kindly about pardoning him.”
    Exactly, PCS. Which leaves Trump in the potentially uncomfortable position of having to pardon himself. Good luck with that one.

  3. “(CNN)Michael Cohen, President Donald Trump’s former personal attorney, pleaded guilty in Manhattan federal court Tuesday to eight criminal counts, admitting that “in coordination and at the direction of a candidate for federal office” he acted to keep information that would have been harmful to the candidate and the campaign from becoming public during the 2016 election cycle.”

    “in coordination and at the direction of a candidate for federal office”

    Hmmm….

    Any guesses? Ha Ha Ha!!

    1. Damn, that’s almost as horrifying as blaming the death of four Americans including a US ambassador at the hands of terrorists on an effing YouTube video and then arresting the filmmaker for good measure.

      I’m curious to see if the FEC has issues with a $130k “donation” while they are processing a complaint [https://www.committeetodefendthepresident.com/documents/FEC_Complaint/20171220_Hillary_Victory_FEC_Complaint_FULL.pdf] for $84 million being funneled through the state campaigns into the Hillary Victory Fund. (the name of that still makes me smile) 🙂

      “The DNC, in turn, contributed most of those funds to HFA, made coordinated expenditures with HFA and otherwise transferred control of its money to HFA, as both the DNC’s own public filings and former DNC chairwoman Donna Brazile’s public confessions make clear,” Backer wrote in the complaint. “In McCutcheon v. FEC, 134 S. Ct. 1434, 1455 (2014), the Supreme Court itself recognized this precise arrangement would flatly violate federal earmarking restrictions, … though the court dismissed the possibility of such a flagrantly illegal scheme as ‘unlikely’ to occur. Not even the Supreme Court could anticipate the extent to which the Democratic Party and its elite, wealthy donor class would commit willful felonies in a futile attempt to facilitate Clinton’s election.”

      2. Olly, Trey Gowdy wasted a year and a half investigating Benghazi and brought forth a big fat nothing burger.

        But if that helps you cope with Trump’s campaign manager becoming a convicted felon and his personal lawyer pleading guilty and incriminating Trump in the process go for it.

  4. “(CNN)Michael Cohen, President Donald Trump’s former personal attorney, pleaded guilty in Manhattan federal court Tuesday to eight criminal counts, admitting that “in coordination and at the direction of a candidate for federal office” he acted to keep information that would have been harmful to the candidate and the campaign from becoming public during the 2016 election cycle.”

    A candidate for federal office?

    I wonder who that may be…….Ha! Ha!! Ha!!!

  5. It is now time to reflect on what has occurred. We have been witnessing a prosecution of Trump and the Trump campaign. It’s been slow-rolling but it has built steam with Manafort’s conviction and Cohen’s plea. We have been witnessing two defenses. One is the representation of the defendants. The other is the defense of the right wing’s mentality. The latter defense has been desparate. It’s Obama’s fault. It’s Clinton’s fault. It’s Soros’ fault. It’s the dirty deep state’s fault. Etc. No, it hasn’t been. Those are just part and parcel of a basket of defense mechanisms thrown up by the right to avoid the awful truth: the right was conned by Trump and his minions. I know it’s hard to admit your were in error and maintain your self-worth and your sanity. But that is the fact. The other fact is Trump is guilty. Yes, some dots have to be connected, but being honest, he and his team are guilty. https://talkingpointsmemo.com/edblog/we-know-trump-is-guilty-were-having-a-hard-time-admitting-it
    Time to own up to the truth, righties. Acceptance of the truth can be a step on the road to recovering your sanity and your credibility.

    1. I don’t think campaign staff were handling Paul Manafort’s off-shore accounts or Michael Cohen’s taxi medallions. Enjoy waiting for the Great Pumpkin.

      2. Meanwhile, Cohen, the President’s personal counsel, has pled guilty to violating campaign finance laws at the direction “of a federal candidate.” Hmmm, who could that be?

    2. LOL! If you were to put the evidence of Trump guilty of crimes on one side of the scale and Clinton guilty of crimes on the other, which would fill up quicker?

      Time to own up to the truth, Lefties. Acceptance of the truth can be a step on the road to recovering your sanity and your credibility.

      P.S. Manafort broke the law for which he deserved indictments and a guilty verdict. Shouldn’t have had to change administrations for the DOJ to figure out what their job was. It’s a process and they shouldn’t stop there.

      1. Yes, I get the need for a defensive crouch. But Hillary hasn’t been charged or convicted of anything. Only in your sad little dreams. Time to man up.

        1. But Hillary hasn’t been charged or convicted of anything.

          For the record you dolt, neither has President Trump.

          So now that the playing field has been leveled, back to the original question. And for Pete’s sake, don’t embarrass yourself further by dodging the question.

          If you were to put the evidence of Trump guilty of crimes on one side of the scale and Clinton guilty of crimes on the other, which would fill up quicker?

          Ready, go!

          1. Just for your benefit, Trump is clearly “Individual 1” in the information filed against Cohen to which he has entered a guilty plea. I’d say that is close to a charge against Trump.

                1. LOL! Look again, the ball is still sitting on the tee. Strike Three!

                  But go ahead and take a trip around the bases anyway. No idiot, go to 1st base, not 3rd. And pull your pants up; tie your shoes. Nevermind, go back to picking up rocks in the outfield.

                  1. Poor deflection, Olly. You appear to know as little about campaign finance law as you do about about baseball fka the national pastime.
                    Now, go back and study the information and the plea and see if there’s any way Trump can pardon Cohen (and himself) out of the mess he’s in.

                    1. hollywood – given that Cohen has taped The Donald, I am not sure The Donald will feel kindly about pardoning him.

    3. Just to keep everyone on their toes:

      ———————–

      “Russians Lose Defamation Suit Over Trump Dossier”

      Trump dossier author Christopher Steele and a London-based corporate intelligence company won the dismissal Monday of defamation claims from three Russian businessmen.

      Filed with the D.C. Superior Court in April, the suit by Mikhail Fridman, Petr Aven and German Khan took issue with a two-page portion of the Steele dossier that describes the men’s close ties to the Kremlin and says they gave advice to Russian President Vladimir Putin.

      … Epstein wrote the businessmen did not show the allegations against them in the dossier are false, a key part of proving a claim of defamation.

      ——————————

      https://www.courthousenews.com/russians-lose-defamation-suit-over-trump-dossier/

      1. For those who don’t bother to read linked articles, (Hi, T Gnash), here are some more excerpts from the above linked article:

        “A key part of plaintiffs’ case is that [the dossier] implicitly alleged that plaintiffs aided ‘the Kremlin’s interference in the 2016 U.S. presidential election,’ and plaintiffs cannot contend both that defendants in [the dossier] accused them of cooperation with Russian interference in the election and that these statements did not involve an issue of public interest in the United States,” Epstein wrote.

        The U.K.-born Steele may not be a U.S. citizen, but Epstein called it ironic for such an argument to come from “nonresident aliens with Russian and/or Israeli citizenship … while petitioning a U.S. court for a redress of their grievances and invoking a constitutional right to discovery.”

        “Plaintiffs do not explain why nonresident aliens have the same rights as U.S. citizens to bring defamation actions, but nonresident aliens do not have the same rights as U.S. citizens to defend themselves,” Epstein wrote.

        In addition to this suit in D.C. Superior, Fridman, Aven and Khan also brought similar complaints over the dossier in a New York state court and in U.S. District Court for the District of Columbia. The federal case is still pending.

        1. R. Lien – so, the illegal aliens have the full range of Constitutional protections, but these guys don’t? Hmmmm????/

          1. You misunderstand the article, as usual, PCS; additionally:

            You, and many others, months ago, harped on this defamation lawsuit brought on by the Steele dossier as evidence that the SC’s findings then-to-date were desperate, and used this suit to buttress this opinion. .

            The defamation suit was dismissed, PCS.

            You really should remember what you write here: $400M to HRC (source–Putin); whoops, sorry, only $400,000 (source–Putin’s walkback) which you were silent on.

            Massive voter fraud in Georgia (source-McClatchy); whoops, sorry, total registered voters in disputed district was 3,7xx, not the 276 initially claimed — corrected by Georgia officials (source-McClatchy, two days later).

            You thought Putin’s suggestion of having Mueller question GRU operatives was a great idea — to take the words out of Trump’s mouth — in exchange for having the GRU question our intelligence operatives — all to get to Browder — a UK citizen.

            You’re an idiot.

            1. R. Lien – when Putin walked it back, I walked it back. However, I have a feeling the plaintiffs are going to appeal the ruling. Do you think they have the right?

                1. According to the article, the dismissal will be appealed. Read the article, PCS; or at least the excerpts offered, which T. Gnash cannot even do. Whether this actually happens — we’ll just have to wait and see.

                  It is obvious that you miss the points of the judge’s ruling — not uncommon for you.

                  Yes, they have a right to appeal. However, they could not convince the court that defamation occurred. Their sham of claiming defamation was called out, and dismissed.

                  But, again, you miss the reasons that the suit was dismissed.

                  Do you deny that you trumpeted this suit as an example of the SC not having anything months ago?

                  Do you deny that you have been wrong on many of your claims given time, and that you never follow-up on many issues that you yell to the crowd that have since come to conclusion?

                  What about the Georgia election results — you never walked that one back either, nor your admiration of Putin’s ‘brilliant’ suggestion, according to Trump, then you, that we have cross-interrogations with the GRU.

                  You’re an idiot.

                  1. R. Lien – you have to learn to play long ball. 😉 A district judge in Hawaii does not the Supreme Court make.

                2. No reply to this statement, PCS?

                  Of course not, because your claim is false, as you know.

          2. PC Schulte,
            I think Teaching Spastics spotted this first…..but you do realize that you are addressing Diane/ Late4Dinner when you play “R, Lein’s” games, don’t you?

            1. T Gnash,

              It’s amazing how much you trust rumors, initially minted by PCS, picked up by SOT/DSS/TSTD et al. and then inform the originator of the same.

              You are dense, T Gnash, embarrassingly dense.

            2. T Gash,

              You should really learn how to use quotation marks.

              Maybe read a book — even the Harry Potter series can teach one this.

              Of course, you have other references, such as the Chicago Manual Of Style — it’s online now, and of course all the millions of sites that teach such things pertaining to the language you appear to use.

              A few hours of study could go a long way in convincing others that your posts should even be considered.

          3. What a poor reading of the excerpts offered, PCS; even poorer if one reads the linked article.

        2. Hi R. Loon,
          I don’t read all of the links. If someone has a habit of plastering links all over the place, I’m less inclined to read them.
          Especially if they are links to long, time-consuming articles.
          The other problem is that in some cases, with some people, the links do not even support the position of the person posting it.
          When I refer to something on the linked article, that does mean that I read it.
          Some people fail to grasp that.

          1. Thanks for clearing that up.

            “I don’t read all of the links.” — T Gnash

            “The other problem is that in some cases, with some people, the links do not even support the position of the person posting it.” — T Gnash

            Just one question, though, given your post: how do you know?

            Someday, T Gnash, you will realize the gaping holes in your ineptitude.

            1. Hi R.Loon/ Lies4Breakfast,..
              It is known as reading comprehension, troll.
              Good luck with your AM Clone shift, Diane.
              Do you get paid for overtime, or just piecework by the lies.
              Best of luck with your trolling, regardless of which anonymous troll name you perform under.

              1. T Gnash,

                You refuse to accept that there might be millions of people that read your troll tripe, and laugh at all the clues you’re missing in trying to shift your obvious ineptitude onto a creation–seeded by others so inclined–so as to obfuscate the obvious fact that you are one very unobservant person.

                1. I’m sure that you are well aware that there may be are numerous people reading these comments, R.Loon/ Lies4Breakfast.
                  I doubt very much that it is “millions”, but whatever the number, it goes well beyond the number of those who comment here.
                  That is probably one of the reason that trolls like you feel it necessary to use aliases.
                  Can’t say I blame you for that, Lady.

                  1. Tom Nash – I think I saw that Turley has 55k subscribers and the blog does get picked up by Drudge from time to time.

                    1. PC Schulte,…
                      Whatever the number, the trolls value their ability to post anonymously, and with good reason.
                      I don’t think you’ll be seeing a few people here ever putting their names behind their comments.

              2. “It is known as reading comprehension, troll.” — T Gnash

                I’m not convinced, T Gnash; as you’ve shown little of this ability since your arrival.

                I just think you lash out because your ‘wisdom’ probably hasn’t been questioned since before you reached puberty — about the time you stopped reading anything longer than a short paragraph.

                I think this is your first foray into the big wild world and you are shocked — shocked — that people disagree with you and think you a fool.

  6. Evidently found guilty on 1 count of hiding a foreign bank account, 2 counts of defrauding lenders, and 5 counts of tax evasion.

  7. And the tally is:

    Mistrial on 10 counts.

    Guilty on 8 counts.

  8. Preliminary reports indicate that Manafort jury has reached a verdict on 8 counts and thrown in the towel on the other 10 counts.

    1. DDS – do the words over-charged and count-stacking come to mind? 😉

      1. Actually, not. Manafort had the decided advantage of a crotchedy, conservative judge who hassled and rushed the prosecution throughout and would not let them publish exhibits to the jury so that they could demonstrate which exhibits supported which specific charges. Indeed, during deliberations, the jury asked for a chart that would assist them in this way. But, no, said Judge Ellis.

  9. Although I have handled only a few criminal cases in my career, I have tried many jury cases. I do not find it unusual for the jury to take several days to consider the voluminous documentary evidence. In addition, the jury must consider each count separately. That they may be deadlocked on only one count is actually favorable to the prosecution in this instance. My reasoning is that had the jury voted to acquit on all of the remaining counts, holdouts on the final count would likely concede to the majority to conclude the deliberations. I will be quite surprised if we do not see guilty verdicts on a number of counts.

    1. Per Shimon Prokupecz, the note from the jury read “The jury asked in a note: “If we cannot come to a consensus for a single count, how can we fill in the verdict sheet?””

      I think that suggests they’re deadlocked across the board. Perhaps something else. It’s pretty amazing the pre-printed sheets don’t include on them a space to record a deadlock and pretty amazing that either the law or the pig-head judge won’t permit proper forms to be printed. It’s hard to know which institutions in society underperform more thoroughly, but surely the most consequential slack is to be found in the legal system.

  12. “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.”

    **************************

    Prosecutors aren’t kings and neither are judges.It’s a Democracy not a Judocracy. As the great man said specifically about law and government:

    “No government ought to be without censors; and where the press is free, no one ever will. If virtuous, it need not fear the fair operation of attack and defense. Nature has given to man no other means of sifting out the truth, either in religion, law, or politics.”
    ~Thomas Jefferson

    And the ancient Romans — who understood a thing or two about unchecked power — coined the fundamental question: Quis custodiet ipsos custodes? (Who guards the guardians?)

    The Judiciary and their prosecutors are humans manning an arm of government. We can respect them and still point out when they’re wrong, wrong-headed and counterproductive. The law is neither suicide pact nor sacred cow.

    1. Ben Franklin, we gave you “a republic, if you can keep it.”

      Tytler’s Dictatorship is the outcome of one man, one vote democracy.

      The American Founders established and intended a restricted-vote republic.

      The Founders expounded on those restrictions including the rationale that the “poor” would “sell” their votes. They did.

      As a study in physics in that it is inexplicable and in full agreement with the Founders, citizens self-restrict from the vote and vote at approximately the 55% level.

    2. Yes, but it’s virtually unprecedented for a POTUS to comment on an ongoing proceeding that touches his administration. It’s close to jury tampering.

      1. Hollymight:

        “Yes, but it’s virtually unprecedented for a POTUS to comment on an ongoing proceeding that touches his administration. It’s close to jury tampering.”
        ************************

        The First Amendment issue aside, it’s not jury tampering to comment on a trial after the jury retires to deliberate. It’s not even close.

        1. You know what, I agree with that. However, all the during the case he kept referring to “witch hunt” and “no collusion.” But more to the point, I should have highlighted obstruction of justice, which Trump tried to do. https://www.nytimes.com/2018/08/21/opinion/guilty-verdict-paul-manafort.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region

  13. David Atkins: Portrait of the U.S. Attorney as political hack and unscrupulous sophist in service and perpetual fealty to the deep state.

  14. It was an unprecedented moment as a president trashed the prosecutors of his own administration.

    We are living in unprecedented times. When it comes to cases stemming from Mueller’s investigation, these are the president’s prosecutors in name only. Same for Sessions.

    1. Federal prosecutors are not “the president’s” for any purpose. Trump has great difficulty in grasping the idea that his authority to fire Sessions does not mean that Sessions is “his” employee. He has continuously displayed an inability to recognize the distinction between a government and a sole proprietorship.

      1. And you’re displaying an inability to recognize the implications of administrative hierarchy.

      2. The last I checked, the DOJ is still a subordinate department within the Executive branch.

        He has continuously displayed an inability to recognize the distinction between a government and a sole proprietorship.

        That however would be an apt description for the uber President he replaced.

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