Paul Manafort’s Trial Should Be a Slam Dunk for Mueller, but One Big Thing Could Go Wrong
While Manafort will be the one sitting at the defendant’s table, there is even more at stake than one man’s liberty. The trial inevitably will be seen as a referendum on the Mueller investigation as a whole. A conviction will serve as powerful vindication and legitimization of Robert Mueller and the entire special counsel office’s investigation. Anything short of conviction, on the other hand, will cause convulsions of joy among the “Rigged Witch Hunt” crowd and surely will evoke legendary bursts of Twitter gloating by the president.
Of course, the actual charges against Manafort have very little to do with Trump, and nothing whatsoever to do with Russian election interference. The indictment runs 37 pages and 77 paragraphs, but it boils down to this: Paul Manafort made tens of millions of dollars working for Ukrainian political entities and tried to hide that money and avoid paying U.S. taxes on it by lying to his banks and to the IRS. (Manafort faces a separate slate of charges in a different federal court in Washington, D.C., relating to his work as an unregistered foreign agent in the United States and witness tampering. That trial is set for the fall.)
From a prosecutor’s perspective, the case against Manafort looks strong. Take Manafort’s name out of it, take the politics out of it, and take the media blitz out of it, and this is a fairly routine financial crime case. This is what prosecutors sometimes call a “paper case”: the case can be made largely on bank records and other financial documents. The witnesses promise to be a blandly bureaucratic bunch, including financial witnesses who will be testifying under grants of immunity. (The immunity grants suggest those witnesses might have some marginal exposure themselves, but not enough to justify criminal charges). The most contentious witness likely will be Manafort’s original co-defendant, Rick Gates, who is now cooperating with Mueller. Defense lawyers love to attack cooperating witnesses, but the problem here is that Gates committed his crimes with and for his boss—Manafort. As cooperating witnesses go, Gates is fairly boring (in a good way, for prosecutors).
While the case seems locked-in, there is one word that must be keeping prosecutors awake at night: nullification. Nullification happens when a jury, or juror, disregards the trial evidence and the law and instead renders a decision based on personal opinions, political or religious beliefs, sympathy, or any other extraneous factor. Jury nullification is very rare, and it is not technically proper—the judge will instruct the jury dozens of times that it is to decide the case solely on the trial evidence and the law—but it also is unavoidable. Jurors are human beings, and human beings sometimes decide based on emotion.
Here, the recipe for nullification is simple. Any juror who is an ardent Trump supporter and disapproves of the Mueller investigation might send a message by voting to acquit. What makes this so scary for Mueller’s prosecutors is that all the defense needs is to catch one nullifying juror (out of 12) to tank the government’s case.