The end of the trial of former Trump campaign chair Paul Manafort today proved controversial after the defense counsel made reference to the alleged selective prosecution by the Special Counsel. If accounts are accurate, it would seem a direct violation of the prior understanding with the court that no party was to make reference to selective prosecution and the Special Counsel investigation of President Donald Trump.

According to reports, the defense team made reference to how the underlying loans by Manafort were not matters of concern until the “Special Counsel” entered the field and then “stack up the counts.” That sounds awfully like special prosecution – a major issue raised in pre-trial hearings. The defense also referenced Manafort’s work as campaign chair for Trump, which is not a direct violation but reinforces the selective prosecution argument.

There was a pending motion in limine that was mooted due to the agreement of the parties. However, the court ordered that references to any decision not to prosecute by prior prosecutors was grant. This is from the docket for July 24th:

ORDER for the reasons stated from the BenchORDERED that the government’s motion in limine to preclude defendant from presenting argument or evidence at trial that the Special Counsel was not authorized to prosecute this case is DENIED AS MOOT.ORDERED that the government’s motion in limine to preclude defendant from presenting argument or evidence at trial that defendant was selectively or vindictively prosecuted is DENIED AS MOOT. ORDERED that the government’s motion in limine to preclude defendant from presenting argument or evidence at trial that any former government investigation of defendant ended with a decision not to prosecute defendant is GRANTED.

The prosecution showed considerable restraint and raised the issue after the jury left the room. As discussed in my last column, Judge T.S. Ellis III is known to controversial and unrestrained comments in this and other trials. He has been unrelenting in his critical asides against the prosecutors in this case and has raised some potentially troubling issues. Ellis did not reportedly say much after this issue was flagged by the prosecutors and took the objections under advisement.

If the accounts are correct, most judges would seriously consider sanctions for such a breach of an earlier order. In the very least, an instruction might be issued to the jury. It was clearly a premeditated and risky act by the defense. While some lawyers may choose the option of “better to ask forgiveness than permission,” this seems a case of promising and then breaching.

What is surprising is that this comes after little significant progress made by the defense in the trial. The defense did very little to rebut the criminal allegations against Manafort while attacking his former aide Rick Gates. It then rests without presenting a single defense witness or having Manafort take the stand. After the vacuum left by the defense during the trial, they have now tripped a wire of a potentially serious breach of the standing court order. That is not an improvement.

We are awaiting a response from Ellis on what the Court intends to do after the objections from the government.

Update: Ellis appears to have simply added an instruction that the jury should not consider whether the government had any special motive in pursuing Manafort. It was one of those warnings that cuts both ways. It reminds the jury that there may be a special or selective motive. Ellis notably was far more restrained (at least so far) in dealing with the defense than he has been with the prosecutors. In this matter, the defense was dead wrong in making the argument given the earlier agreement.

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