Why former Trump campaign boss Paul Manafort's second trial could be even tougher than his first

Key Points
  • Former Trump campaign chairman Paul Manafort faces his second trial against special counsel Robert Mueller's federal prosecutors.
  • Prospective jurors in Washington have begun filling out questionnaires this week.
  • Manafort is accused of financial crimes related to work he did for a pro-Russian political party in Ukraine.
  • But the judge, as well as the charges and location, could make the second case more perilous for Manafort than the first.
Former Trump campaign chairman Paul Manafort (L) arrives at a federal courthouse with his attorney Kevin Downing, November 2, 2017 in Washington, DC.
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Paul Manafort might have even more to worry about the second time around.

Prospective  jurors in Washington began filling out questionnaires this week for the federal trial of the former chairman of President Donald Trump's 2016 presidential campaign. It's the 69-year-old Manafort's second trial against special counsel Robert Mueller in as many months.

While Mueller is investigating Russian interference in the 2016 presidential election, Manafort's charges in both cases relate to his consulting work for a pro-Ukraine political party years before he took the helm of the Trump campaign in May 2016. Judge Amy Berman Jackson, who is overseeing this trial, ruled that Mueller's election collusion investigation was "wholly irrelevant to the charges in this case."

Mueller's attorneys won guilty verdicts against Manafort on eight criminal counts of tax and bank fraud in the August trial in U.S. District Court in Alexandria, Virginia. Prosecutors are still deciding whether to ask for a retrial on the 10 remaining charges in which the jury couldn't reach a consensus.

The second trial, in which opening statements are scheduled to begin Sept. 24, is also centered around Manafort's alleged financial crimes. But with a less optimal location, a less sympathetic judge and charges that could require a more robust defense, the second court battle is hardly expected to be a repeat of the first.

The courthouse

The location of Manafort's second trial could affect his case as much as the charges against him.

Mueller had lodged indictments against Manafort and his longtime business partner, Rick Gates, in Alexandria and Washington, but gave them the option to meld all the charges into a single case in Washington.

Manafort, however, refused to combine the charges — a move that surprised some legal experts.

Some speculated that Manafort's attorneys believed they would find a more sympathetic jury outside Washington, which voted overwhelmingly for Hillary Clinton in the 2016 election. Suburban Alexandria still voted handily for Clinton, but by a slightly slimmer margin, according to exit polling data from The New York Times.

Securing an acquittal in Alexandria — nicknamed the "rocket docket" for its speedy trials — might have given Manafort some much-needed momentum ahead of a tougher D.C. trial. But the jury in Alexandria convicted Manafort on Aug. 21 of five counts of tax fraud, two counts of bank fraud and one count of failing to file foreign account reports.

In D.C., Manafort is charged with conspiracy to launder money, witness tampering, lying to the Justice Department and acting as an unregistered foreign agent.

In both cases, Manafort's lawyers had asked the court to move the trial venue to U.S. district court in Roanoke, Virginia, more than 200 miles from the nation's capital, where a much larger percentage voted for Trump in the 2016 election.

But in both cases, the judges denied the requests.

Manafort's lawyers had every reason to fight hard for the best jury pool available. If just one of the 12 jurors refuses to convict on any of the seven charges, the judge will declare a mistrial on those counts.

That's what happened in Alexandria. A single member of the 12-person jury did not find Manafort guilty on 10 of the 18 counts against him in that case, according to one of the jurors. Judge T.S. Ellis declared those counts a mistrial.

Prospective jurors for the September trial started filling out questionnaires this week. Selection will begin in earnest, with potential jurors being questioned individually, Sept. 17.

The judge

In Alexandria, Ellis generated headlines even before the case went to trial for his aggressive, sometimes accusatory remarks toward Mueller's prosecutors.

Jackson, however, has appeared to be more focused on keeping Manafort and his lawyers in check.

In June, for instance, U.S. attorneys lodged a superseding indictment against Manafort, as well as Russian national Konstantin Kilimnik, alleging the two men attempted to tamper with potential witnesses in the trial.

A week later, Jackson revoked Manafort's $10 million bail, ordering him to jail, where he has remained pending the two trials.

"I cannot turn a blind eye" to the ways Manafort has "abused the trust" of the court, Jackson said, even after acknowledging that her decision was "extraordinarily difficult."

Jackson has also pre-emptively warned Manafort's lawyers to watch their behavior in court.

At a hearing on Aug. 28, Jackson told defense attorney Kevin Downing: "I just want to let you know that you are an expressive human being, and how you feel about what is being said in the courtroom is a big part of your demeanor and your physical demeanor. That doesn't upset me particularly, but it will upset me enormously if there's a jury in the box. So just keep that in mind."

Ellis, on the other hand, repeatedly locked horns with prosecutors over their conduct in court, the presentation of their case — and even their intentions in charging Manafort with crimes.

"You don't really care about Mr. Manafort's bank fraud," Ellis told prosecutors during a pretrial hearing. "You really care about what information he might give you about Mr. Trump and what might lead to his impeachment or prosecution."

Throughout the trial, Ellis badgered Mueller's team to speed through the case and warned them against potentially prejudicing the jury by highlighting examples of Manafort's lavish spending habits.

Prosecutors in the Virginia case were censured numerous times by Ellis for their emphasis on Manafort's opulent taste on items such as a $15,000 jacket made of ostrich, bespoke suits at ultra-pricey men's shops and sprawling home renovations costing millions of dollars.

But Jackson appeared to take a more lax stance on dredging up the ways Manafort spent his allegedly laundered money.

"You can show how it was spent, but I'm talking about emphasis, and how much time is spent," Jackson said, according to The Washington Post.

The defense

Nearly the entirety of the 10 days in the Alexandria trial were devoted to the prosecution's case-in-chief. The attorneys called more than two dozen witnesses, including Gates, along with more than 360 evidence exhibits.

Manafort's team, however, opted against presenting their own defense case and called no witnesses.

Rather, they argued in closing that "beyond a reasonable doubt" was an extremely high burden of proof to reach. They also reiterated their stance from their opening remarks that Manafort had not intentionally violated any federal tax rules, and that he had been misled and lied to by Gates.

So far, the defense has not said whether it plans to present a case in the second trial. But a pretrial statement, submitted by both Manafort's and Mueller's teams, signals that the possibility may still exist.

Manafort "has not determined whether he will present a defense case," the statement reads, adding that "any defense case will require between three to four trial days." The government's attorneys predicted their own case will take 10 to 12 days.

The previous strategy may have put a dent in the prosecution's case in light of the deadlock on 10 charges. But the seven criminal counts against Manafort in the D.C. case might be harder to beat without an "affirmative defense," said David Shapiro, a former FBI financial crimes investigator.

"Mr. Manafort denied he had the guilty state of mind" in the first trial, Shapiro said. That, he added, is "a hard sell when you sign documents, create shell companies, and receive oodles of USDs in your accounts to spend."

The swirl of political intrigue surrounding the criminal trial of a sitting president's former campaign boss could give Manafort an opportunity to mount a defense, Shapiro added.

"His defense may be that the trial is politically motivated, arising from his favoring of Russia-allied individuals and organizations against those favored by the U.S. government to create a separate and independent Ukraine," Shapiro said.

But experts following Manafort's trials predict that some of the charges appear to be airtight.

"In brief, he seems a goner on the money laundering charges," Shapiro said, "with a small probability of success against the foreign lobbying charges."

Trump's continued intrusions on Manafort's perilous legal position might only help that legal strategy. After Jackson ordered Manafort to jail, for instance, Trump wrongly described the ruling as a "tough sentence" for his former campaign chief.

Trump tweet

Shortly after the Alexandria jury returned guilty verdicts, Trump told reporters that "Paul Manafort is a good man," adding, "I feel very sad about" his situation.

Manafort's defense team didn't exactly welcome the president's words of support, however.

The former Trump campaign chief, his lawyers argued, has "become an unwilling player in the larger drama between Mr. Mueller and President Trump."