A transcript of the first day of the trial last week shows that prosecutor Uzo Asonye (standing) specifically asked that witnesses be excluded "with the exception of our expert and our [FBI] case agent." | Dana Verkouteren via AP Manafort trial Manafort trial Day 8: A heated exchange, judge admits fault, Airbnb enters the spotlight The federal judge overseeing the Paul Manafort trial took another shot at special counsel Robert Mueller's team Thursday afternoon.

The federal judge overseeing the Paul Manafort trial took another shot at special counsel Robert Mueller's team Thursday afternoon, even after conceding earlier in the day that a criticism he leveled at prosecutors on Wednesday was erroneous.

The prosecution spent about 40 minutes Thursday afternoon questioning a bank employee about Manafort’s unsuccessful effort to get a $5.5 million construction loan on a Brooklyn brownstone, only to have Judge T.S. Ellis III suggest that the issue was unworthy of such extensive discussion at the trial. Notably, Ellis made the remark with the jury present.


“You might want to spend time on a loan that was granted,” the judge scoffed as prosecutor Uzo Asonye sat down after concluding his questioning of Citizens Bank employee Taryn Rodriguez.

That prompted Asonye, who had sat down, to jump back up.

“Your honor, this is a charged count in the indictment,” the prosecutor said.

“I know that,” Ellis shot back.

The tense exchange was the latest example of Ellis making comments that could lead jurors to question the prosecution's case or its tactics in the tax- and bank-fraud trial that opened last week.

Ellis even acknowledged that one of his prior remarks was out of line, telling the jury early Thursday that he “may well have been wrong” the day before when he slammed the Mueller team for allowing an expert witness from the IRS to remain in the courtroom while other witnesses were testifying.

Typically, witnesses aren't supposed to hear anyone else's testimony in a trial so they don't influence each other, but Mueller’s team got Ellis’ permission during the trial’s opening arguments last week to have the IRS agent in the court on a regular basis.

“This robe doesn’t make me anything other than human,” Ellis told the court on Thursday morning after instructing the jury to forget what he had said to the Mueller team about the IRS witness. “You’ve got to put that aside.”

Playbook PM Sign up for our must-read newsletter on what's driving the afternoon in Washington. Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Mueller’s team has been frustrated by repeated slapdowns from Ellis during the Manafort trial — now in its eighth day. Before court started on Thursday morning, they filed a written motion to formally protest how they had been called out over the IRS witness.

The Mueller team asked Ellis to explain to the jury that the prosecution had done nothing wrong and cited a transcript of the first day of the trial last week showing that prosecutor Uzo Asonye specifically asked that witnesses be excluded "with the exception of our expert and our [FBI] case agent." The judge and the prosecutor went on to discuss Michael Welch by name and his expertise. And the judge unmistakably approved the exception.

"The Court mistakenly faulted the government for permitting IRS revenue agent Michael Welch, the government’s expert witness, to remain in the courtroom during the proceedings, when in fact on the first day of trial the Court had expressly granted the government’s motion to do so," prosecutors complained in their motion. "The Court’s reprimand of government counsel suggested to the jury — incorrectly — that the government had acted improperly and in contravention of Court rules. This prejudice should be cured."

Ellis chastised Asonye in court on Wednesday moments after he called Welch to the stand. "It's my clear recollection ... that I wasn't admitting experts," Ellis said. "You need to ask specifically. You're going to go ahead now, I'm going to permit that, but I want you to remember that."

Asonye responded that prosecutors would "check the transcript," but it was their belief that they specifically asked for permission to allow expert witnesses like Welch to remain in the courtroom despite the usual prohibition.

"Well, let me be clear: I don't care what the transcript says," Ellis snapped, before backing down a little. "Maybe I made a mistake. But I want you to remember. Don't do that again. When I exclude witnesses, I mean everybody. Now, it may be that I didn't make that clear."

The judge's tone suggested he was disturbed by the prosecutors' actions, although he eventually declared, "It's not a big deal."

In their letter, Mueller's team said the judge's action left a "negative impression" of them. "The Court’s sharp reprimand of government counsel in front of the jury on August 8 was ... erroneous. And, while mistakes are a natural part of the trial process, the mistake here prejudiced the government," Mueller's team wrote, asking Ellis to tell jurors he was mistaken and the prosecution did nothing wrong.

Before the jury came in Thursday, but after the session began, Asonye asked Ellis to address the issue. The judge snapped, “Alright, I’m going to take care of that.”

The judge's slap at the prosecution on Wednesday over the expert witness issue was just the latest in a series of rebukes he's delivered to Mueller's squad in recent days over topics ranging from body language to excessive informality to efforts to introduce visual imagery of Manafort's lavish lifestyle. The prickly exchanges have clearly begun to grate on the prosecution team, which has sometimes protested verbally in court, but did not formally lodge a written objection before Thursday.

On Wednesday, Ellis scolded prosecutor Greg Andres for responding to the court's questions with terms the judge considered too casual, like "yeah" or "yup."

“Be careful about that,” he told Andres. “This is not an informal proceeding.”

Andres slipped up again moments later, offering a “yup” in response to another question from the judge.

“I beg your pardon?” Ellis intoned, his irritation evident.

“Yes, Judge,” Andres answered.

Ellis has sometimes faulted defense attorneys, but that has been more rare. On the other hand, the prosecution has been doing most of the heavy lifting thus far as the government presents its case. With prosecutors pledging to finish presenting their evidence by the end of the day Friday, the defense's opportunity to call witnesses should come next week.

Judge seals transcript that could detail Gates’ cooperation in Russia probe

Ellis did go along with one potentially significant request from prosecutors Thursday: a motion asking to seal a court transcript that discusses how the prosecution’s star witness, Rick Gates, has aided Mueller’s investigation of the Trump campaign. It seems likely that cooperation pertains to Mueller’s efforts to explore Russian influence over Trump’s presidential bid, but there was no explicit mention of Russia in the Mueller motion.

As Gates was testifying Tuesday, the judge held a sidebar conference out of the earshot of jurors after the defense asked the former Manafort aide about interviews with the government related to the Trump campaign.

Normally, transcripts of those sidebar conferences are released within a day or so, but Mueller’s team filed a motion Thursday, asking Ellis to keep that particular courtroom discussion under seal.

“Disclosing the identified transcript portions would reveal substantive evidence pertaining to an ongoing investigation,” prosecutors wrote. “The government’s interest in protecting the confidentiality of its ongoing investigations is compelling and justifies sealing the limited portion of the sidebar conference at issue here.”

Ellis agreed to the sealing, signing an order that found disclosing the sidebar exchange “would reveal substantive evidence pertaining to an ongoing government investigation.”

That Gates would have been questioned by Mueller on his time with the Trump campaign should come as no surprise. His plea deal with the special counsel states that he must “cooperate fully, truthfully, completely, and forthrightly with this Office and other law enforcement authorities identified by this Office in any and all matters as to which this Office deems the cooperation relevant.”

Gates’ providing information that extends beyond the pending cases against Manafort makes sense considering how much time Gates spent with Trump during the campaign and then with key officials after Election Day. He wore a Secret Service lapel pin in 2016 that gave him access to Trump on the campaign trail and at Trump Tower.

After Manafort’s ouster, Gates became a liaison between the campaign and the Republican National Committee through Election Day and then served in a senior post on Trump’s inauguration planning committee. He also helped organize the nonprofit group America First Policies, which worked to boost the Trump administration’s agenda.

Mueller team turns back to bank fraud charges

Prosecutors turned Thursday morning back to the bank fraud charges against Manafort, calling a mortgage assistant who handled his 2015-16 application for a loan on a Manhattan condominium he owned with his wife and one of his daughters.

Melinda James, an assistant at Citizens Bank, testified that Manafort signed documents declaring the Howard Street condo as a second home used as a residence for their daughter Jessica and then-husband Jeffrey Yohai. Manafort also stated that he didn’t have any other mortgages on a wide swath of real estate he owned.

But Mueller’s team noted documents showing Manafort had also filed tax returns declaring the property, located in New York’s SoHo neighborhood, as a rental for 365 days a year that had been listed on Airbnb. Prosecutors also presented insurance and financial documents detailing debt Manafort had on his other properties.

In her testimony, James said that while considering the loan, she discovered on the website Streeteasy that the property was available for rent, even though Manafort billed it as a home for his family. She explained that the bank and the loan underwriters would have made different calculations if they believed Manafort was renting out the condo or that he had other mortgages on his properties.

During cross-examination, the defense again pointed the finger at its No. 1 boogeyman, star prosecution witness and former Manafort aide Rick Gates. Defense attorney Jay Nanavati noted that the Citizens Bank loan went through a "months-long application process" and that the individual who sent the bank insurance documents suggesting there were no other outstanding loans was Gates.

Gates also called the bank to assuage doubts about a loan that the bank had flagged as a potential obstacle to mortgaging the Howard Street property, James testified. He told the bank that they were not moving forward with that loan.

"It was not until you got a telephone call from Mr. Gates later that day that things went off the rails, correct?" Nanavati asked.

"I guess — if you call it off the rails," James said.

Nanavati also noted that even if Manafort's 2015 and 2016 tax returns displayed the Howard Street property as a rental property for the entirety of those two years, those returns wouldn't have been filed until after the Howard Street mortgage application Manafort was filed and approved.

However, Asonye pointed out that Manafort was copied on an email where Gates provided the allegedly misleading information, saying there was "no mortgagee" on Manafort's other properties. The prosecutor also suggested it was bizarre to think Gates was unilaterally trying to trick the bank.

"As far as you know, did Mr. Gates receive one penny from this cash-out refinancing?" Asonye asked.

"No," James replied.

"Who got the money?" Asonye asked.

"Mr. Manafort," James said.

Airbnb'ing Manafort's condo

Prosecutors also called senior Airbnb executive Darin Evenson to testify that between January 2015 and April 2016 the Howard Street home was available for rent on the popular site, billed as an "Amazing Full Floor Loft in Soho."

There were a couple of breaks in its availability, though, Evenson said. One involved the apartment coming off the rental site on Feb. 26, 2016, just days before the mortgage went through. The apartment popped back onto the site one month later, the Airbnb official said.

Evenson, a retired Navy Seal, did acknowledge that the company had no indication Manafort himself was ever considered a "host" on the platform. Instead, Manafort's then-son-in-law, Yohai, was listed as the contact.

Manafort and his wife, Kathleen, ultimately closed on the $3.4 million loan on March 4, 2016 — less than four weeks before he was named the Trump campaign’s convention manager for the Republican National Convention.