WASHINGTON (CN) – Paul Manafort’s bid to divert his trial from Washington circled the drain Wednesday as a federal judge skewered the basis that the ex-Trump campaign manager gave for seeking a change of venue.
More than 90 percent of voters in the District of Columbia cast ballots in 2016 for Hillary Clinton, but suppositions of political affiliation do not offer a lawful justification for switching venues, U.S. District Judge Amy Berman Jackson said this morning during a two-hour pretrial conference.
Jackson noted that the issue could be probed further if the process of seating a jury, set to begin later this month, proves difficult.
The court also heard arguments today about various materials that Manafort and the prosecution want excluded from the trial.
Prosecutors want Manafort barred from arguing that special counsel Robert Mueller’s office engaged in selective or vindictive prosecution, or that any prior investigation of Manafort wrapped without charges being brought against him.
Noting that Manafort’s defense attorneys ignored an order from a federal judge in Virginia not to raise such issues before the jury in his last trial, prosecutors now say Jackson must set the line on these matters firmly.
Jackson said this morning that she would not consider any orders in Virginia that defense attorneys ignored, but would give them an opportunity to further explain why the jury should get to hear such arguments.
Defense attorney Kevin Downing told Jackson they intend to raise the issue to illustrate the vagueness of the Foreign Agent Registration Act, noting that only six cases have been charged under the law since 1966.
“That sort of selective prosecution argument gets raised all the time,” Jackson responded, adding that Downing would need to provide her with a legal basis to justify raising the issue with the jury.
Manafort was convicted last month in Virginia of financial crimes and is set to face another trial in Washington regarding his failure to register as a foreign agent while lobbying on behalf of a pro-Russian political party.
During the Virginia trial, defense attorneys implied that Manafort’s connection to the Trump campaign caused his selective prosecution. This argument contravened a demand by U.S. District Judge T.S. Ellis III that the defense approach the bench before raising such allegations.
Downing said in court Wednesday that the politics surrounding the case are unavoidable.
“Paul Manafort is here because he was Trump’s campaign manager,” he said.
Jackson said that kind of argument is more appropriately made in a motion to dismiss, not to the jury.
Ahead of the Washington trial, Manafort’s defense has its own requests. They want prosecutors to keep details about the 2016 U.S. election and about Manafort’s role in Trump’s campaign to a minimum.
Prosecutors said last month they do not intend to introduce any evidence about the Kremlin’s effort to disrupt the 2016 election, or whether the Trump campaign assisted that scheme. They do claim, however, that any false statements Manafort made to the Justice Department on foreign-agent filings are relevant to his role as Trump’s campaign chairman, since his incentive to maintain that role could factor in to his alleged efforts to distance himself from former Ukrainian President Victor Yanukovych.
Manafort faces charges of conspiracy, money laundering, failing to register as a foreign agent, making false statements on Foreign Agent Registration Act forms and obstruction of justice stemming from lobbying work for Yanukovych and the pro-Kremlin Party of Regions in Ukraine.
Manafort resigned from the Trump campaign after news reports about his connections to Ukraine surfaced in 2016.
Prosecutors say Manafort developed a scheme to keep the U.S. ignorant of the millions in income that he earned from his Ukraine work, funneling those funds into offshore accounts so he could support a lavish lifestyle.
Prosecutor Jeannie Rhee argued Wednesday that they want to reserve the option to introduce evidence establishing Manafort’s intent to make false foreign agent statements. She said Manafort coordinated the false filings with the Justice Department as part of his response to the 2016 media reports.
Jackson expressed concerns, however, despite agreeing with the prosecution that the matter and timing are relevant.
“I don’t want to dwell on his position in the campaign,” Jackson said.
Jackson proposed distilling it down to a single sentence for the jury indicating that Manafort was working on a presidential campaign at the time, but excluding when he left the campaign and under what circumstances.
Rhee said she agreed that the jury doesn’t need to have more specifics than that.
“That is not the point of the government’s request,” Rhee said, noting that prosecutors simply don’t want “a gaping hole” in their case.
Jackson agreed to the government’s limited exception on raising Manafort’s work for the Trump campaign, but instructed the parties to work together on a stipulation or instruction for the jury.
Defense attorneys have also asked the court to exclude any reference to his trial last month in the Eastern District of Virginia, and to bar testimony from the attorney who filed Manafort’s Foreign Agent Registration Act paperwork.
Jackson agreed that anything pertaining to the outcome of Manafort’s Virginia trial is “entirely irrelevant” in the Washington, D.C., case. She held off, however, on deciding whether the attorney should testify.
The judge also issued some directives of her own Wednesday, saying she will not allow defense attorneys to question Manafort’s longtime associate Rick Gates about his extramarital affairs.
Prosecutors said Wednesday they don’t know yet whether Gates will testify in the upcoming trial, but if he does Jackson said the issue of his infidelity can’t be used to call into question his credibility as a witness.
Gates had testified against Manafort during the Virginia trial, having pleaded guilty in February to lying to federal agents and one count of conspiracy.
During cross-examination in the Virginia trial, attorney Downing questioned Gates about a “secret life,” after which Gates spontaneously confessed to having had an affair.
Jackson said if Gates does testify and he opens the door to the issue, defense attorneys are to stop their questioning and discuss how to proceed at the bench, out of earshot from the jury.
Jackson said Wednesday that the parties should also refrain from characterizing the merits of Manafort’s Ukraine lobbying work. The issue before the jury is not whether that work was done to foster democracy and freedom, as Manafort has claimed, but whether he was required to register as a foreign agent for undertaking the work.
Next week the parties will meet again to hash out what exhibits the government can introduce at trial.
Manafort filed his objections to the exhibits Tuesday, many of which appear to be related to his Ukraine lobbying work. The objections are primarily based on the exhibits’ relevance, or whether they constitute hearsay.
Jury selection for the trial will begin Sept. 17 with opening arguments scheduled for Sept 24.