Gregory Craig speaking in Washington in 2008. Photo: Diego M. Radzinschi/ALM.

The trial of Greg Craig was unexpectedly thrown off-course Tuesday when defense lawyers for the former White House counsel objected to a jury selection that has played out largely behind closed doors, prompting a Washington federal judge to restart the process from scratch.

U.S. District Judge Amy Berman Jackson of the District of Columbia barred the public from sitting in on the bulk of questioning Monday, a step she said would protect the privacy of jurors in the closely watched case. Prosecutors and Craig’s defense team did not object at the time, and after hours of reviewing potential jurors, the two sides had been expected to present opening statements Tuesday.

Instead, Jackson spent the second day of Craig’s trial addressing questions about whether the closed-door questioning of jurors had violated his rights to a fair trial under the Sixth Amendment. A defense lawyer for Craig, Zuckerman Spaeder partner William Murphy, said the Justice Department had initially raised that concern following Monday’s proceedings.

Murphy said the Justice Department’s concerns had taken Craig’s defense team “by surprise.”  “In thinking about it all in hindsight,” Murphy said, Craig’s defense team came to share those concerns.

“Are you telling me we need to start over?” Jackson asked.

“Yes,” Murphy replied.

After taking an hour-long recess, Jackson said she would summon between 120 and 125 new jurors for questioning that will begin Wednesday. The remaining jurors from the initial pool of 70 were dismissed.

U.S. District Judge Amy Berman Jackson. Photo: Diego M. Radzinschi/ALM

Murphy on Tuesday also raised separate concerns about steps the court had taken to ensure that the initial pool of jurors would be available for a two-week trial in August. The so-called “pre-selection” process allowed some prospective jurors to learn in advance that they were being called in connection with Craig’s case, Murphy said.

When Jackson agreed to draw from a general pool of jurors, rather than a prescreened group, Murphy said, “I think that’s the safest course, your honor.”

“We want the regular people,” he added, to laughter from the courtroom.

Craig, who served as President Barack Obama’s first White House counsel, was charged in April with misleading the Justice Department about his work for Ukraine during his time as a partner at Skadden, Arps, Slate, Meagher & Flom. Prosecutors have alleged that Craig deceived the Justice Department to avoid disclosing his Ukraine work under the Foreign Agents Registration Act, a law requiring the disclosure of foreign influence in the U.S.

Although Jackson agreed to begin jury selection anew, she defended her initial decision to close the courtroom, saying it was intended to give prospective jurors the comfort to provide “complete and candidate answers.” It also removed the need for lawyers to repeatedly gather at the bench under the veil of white noise, known as the “husher,” to hear jurors respond to sensitive questions.

“This procedure, I think, made the process easier for the parties and the lawyers,” Jackson said.

During Monday’s proceedings, she said, one juror discussed a mental illness and another mentioned a family member who’d been convicted of an “egregious crime.”

Jackson said she would advise prospective jurors Wednesday that they could respond sensitive questions with the “husher” turned on.

On Monday, before shutting the public out of her courtroom, Jackson allowed several reporters to observe a round of initial questioning in which jurors gave written answers. On blue note cards, the jurors responded to 26 questions designed to discern whether they would bring any improper bias to Craig’s case.

The larger, newly called juror pool will gather Wednesday in the ceremonial courtroom of the E. Barrett Prettyman U.S. Courthouse in Washington to give written answers to the same 26 questions. The individual questioning will be held in Jackson’s courtroom.

“If someone wants to come in and watch it, they will watch it,” Jackson said.

With the delay in jury selection, Craig’s trial is now expected to stretch past Labor Day. During a lighter exchange Tuesday, Jackson recalled that Murphy had vacation plans the Friday before the long weekend.

“I don’t know why I remember your vacation schedule, but I do,” Jackson said.

“For me, it’s a four-day weekend,” Murphy replied, drawing further laughter from the courtroom.

 

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