Special counsel Robert Mueller’s team of prosecutors have spent several days building what many legal experts consider a slam-dunk case against President Donald Trump’s former campaign chairman, Paul Manafort.
But it has been surprisingly hard going at times, and as they prepare to rest their case as early as Thursday, they bear battle wounds that Manafort’s lawyers are sure to exploit as they mount their defense.
Even as Mueller’s team methodically piled up evidence of Manafort’s alleged tax and bank fraud, jurors have seen the special counsel’s case hit some potholes.
Most notably, Manafort’s attorneys have painted the prosecution’s star witness, Rick Gates, as a serial liar, embezzler and philanderer who — as a defense lawyer asserted in court on Wednesday — engaged in four extramarital affairs.
Several other setbacks have come courtesy of the cantankerous presiding federal judge, T.S. Ellis III.
The 78-year-old Ronald Reagan appointee has repeatedly tweaked Mueller’s team, on everything from the logic of their assertions to a prosecutor’s informality in answering a question with a “yeah” instead of “yes.” He has hurried along their case and blocked them from introducing some evidence of Manafort’s lavish lifestyle.
Taken on their own, the individual rebukes are relatively minor. But some legal experts say that, cumulatively, they could plant doubt in the mind of jurors about the strength of the prosecution’s case. Renato Mariotti, a prominent former federal prosecutor, tweeted Wednesday that Ellis has made “improper statements that have hurt the prosecution.”
“[T]he judge’s condescending attitude [could give] the jury the impression that the prosecution’s case is dubious,” added Philip Lacovara, a former U.S. deputy solicitor general. “This is an especially severe risk when the core of the case is the testimony of a co-conspirator who is admittedly a thief, liar, and embezzler. When the standard of proof is ‘beyond a reasonable doubt,’ there is no margin for error.”
The jury and not Ellis will decide Manafort’s fate. But the rulings and commentary of a seasoned judge are sure to have influence over jurors.
In what must have been a particularly unwelcome exchange for Mueller’s team, Ellis on Tuesday tweaked Gates, who admitted to embezzling expense money while working for Manafort. The judge also seemed to give credence to Manafort’s argument that he did not keep close enough track of his money to commit knowing fraud and tax evasion.
“Mr. Manafort was very good about knowing where the money is and knowing where to spend it,” Gates said.
“Well, he missed the amounts of money you stole from him, though, didn’t he?” the judge said.
Gates conceded that was true.
“So, he didn’t do it that closely,” the judge quipped, to some laughter in the courtroom.
On Wednesday, Ellis was at it again, dressing down prosecutors after learning that an IRS agent they called to the stand as an expert witness had been in the courtroom for the entire trial. Ellis argued that witnesses should be present only for their own testimony. Mueller’s prosecutors protested that the judge had granted them an exception, but the judge — a former fighter pilot who has spent more than 30 years on the federal bench — was having none of it.
“I don’t care what the transcript says, maybe I made a mistake,” Ellis said. “When I exclude witnesses I mean everybody, unless I make a special exception.”
Also Wednesday, Ellis asked whether snaking flow charts Mueller’s team presented as evidence showing complex financial transfers funding Manafort’s real estate purchases were meant to signify illegal behavior beyond a failure by Manafort to report taxable income.
“One can get lost in all these movements of money,” Ellis told Greg Andres, one of Mueller’s most senior litigators and a former top lawyer in the Justice Department’s criminal division. “Sometimes it seems that’s what the government is aiming at. But you’ve confirmed that it is not.”
And when Ellis asked Andres — with whom he colorfully sparred on Monday — one procedural question in front of jurors, the admittedly old-fashioned judge bridled when the prosecutor answered with a casual-sounding “yeah.”
“What?” Ellis said, sounding incredulous and irritated. “Yes,” Andres then replied.
“Be careful about that,” Ellis told him. “This is not an informal proceeding.”
Ellis has also hurried prosecutors, challenging the volume of their evidence and the number of witnesses they hoped to call — prompting moments of exasperation.
“We’re not delaying this trial,” Andres — who himself is married to a federal district court judge, Ronnie Abrams, a Manhattan-based appointee of President Barack Obama — told him at one point on Wednesday. “I’m at a loss.”
Lacovara, a former counsel for the Watergate prosecution team, said the judge’s impatience “forces the prosecution to truncate the witnesses so that Mueller winds up unable to prove everything that the prosecution promised to prove in the opening statement.”
Manafort’s defense, he added, “could exploit the shortfall.”
Ellis has also limited prosecution efforts to introduce evidence depicting Manafort’s taste for luxury. Prosecutors say they’re trying to demonstrate tax evasion by showing that Manafort enjoyed a lifestyle far beyond the amounts reflected in his tax returns. But in the presence of the jurors, Ellis has countered that it’s not illegal to be rich or spend indulgently.
Just how the judge’s attitude toward the prosecution will play out is difficult to assess.
“In the end, you want the jury to like you and agree with your theory of prosecution,” said David Weinstein, a former assistant U.S. attorney from South Florida. “Having a judge who is always sparring with you can work both ways. The jurors might see the judge’s harsh treatment of you, feel sorry for you and give you the benefit of doubt on an issue. Or they might accept the judge’s view of your behavior and hold it against you.”
Manafort’s defense team hasn’t escaped Ellis’ sting. Most notably, Ellis stepped in on the prosecution’s behalf Wednesday after Manafort attorney Kevin Downing asked Gates whether it was true that he had confessed in talks with Mueller’s team to having four extramarital affairs. Andres immediately objected, and Ellis called a bench conference out of the jury’s earshot. When proceedings resumed, Downing moved on without raising the topic again.
But prosecutors, who face high standards of evidence, can be more vulnerable to a judge’s whims — and have more incentive to challenge them: While the defense can always appeal a conviction, prosecutors have no recourse if Manafort is acquitted and must fight all their battles in the moment. (Even an acquittal does not mean salvation for Manafort, who is also scheduled to go on trial next month in a Washington, D.C., federal court on other charges related to his political consulting and lobbying work on behalf of Ukrainian politicians years before he and Gates joined Trump’s 2016 campaign.)
Mariotti, a former federal prosecutor from Chicago, said the way Ellis handled the issue of Gates’ affairs demonstrated he’s trying to be a fair umpire in the case.
“The jury can’t ‘un-hear’ the question, and it implies that the answer is that Gates had four affairs,” he wrote on Twitter. “This exchange shows why Judge Ellis is not as bad for the prosecution as it appears at first glance. Although he made improper statements that have hurt the prosecution, he has been a strong judge that has kept control of the courtroom. That is huge for the prosecution.”
Ellis has also complained about lawyers allegedly rolling their eyes at his courtroom patter. But Timothy Belevetz, a former assistant U.S. attorney from the eastern district of Virginia, downplayed Ellis’ influence over the jury, saying that Northern Virginia jurors “tend to be fairly smart and sophisticated.”
“Ultimately, what is likely to govern the jury’s decision is the evidence itself — the exhibits, the testimony, the credibility of the witnesses — and the persuasiveness of the parties’ arguments,” he said. “Indications of displeasure over counsel’s facial expressions or lack of formality probably won’t be a factor in the jury’s decision.”
Gene Rossi, another former assistant U.S. attorney who has made hundreds of appearances before Ellis, said he was “completely covered with scars” from the judge.
“When an attorney makes it through his trial, the experience is like boot camp on Parris Island,” Rossi said. “But at the end of the day in my seven trials, the jury was not swayed by his demeanor and comments.”
Politico · by Darren Samuelsohn · August 8, 2018