Paul Manafort, former Trump campaign chairman, arrives at federal court in Washington, D.C., for his arraignment and bail hearing, on June 15, 2018. Credit: Diego M. Radzinschi / ALM

From the outset of Paul Manafort's bank and tax fraud trial, U.S. District Judge T.S. Ellis III established himself as a force inside his federal courtroom in Alexandria, Virginia.

Far from sitting back and simply ruling on objections, Ellis often injected himself into the proceedings. Occasionally, he asked witnesses questions. He prodded prosecutors to pick up their pace, revealing from his own corner of the Albert V. Bryan Courthouse why the federal district court here is known as the “rocket docket.”

At one point, Ellis scolded prosecutors for allowing a witness to sit in on proceedings before taking the stand, only to later apologize after being told that prosecutors had received permission from the judge.

The interventionist style prompted discussions in legal circles and on cable talk shows about whether Ellis had gone too far, with some observers arguing the judge's hands-on approach and regular rebukes would have been fodder for a mistrial if the defense had been on the receiving end. If Manafort is acquitted—closing arguments are set for Wednesday—the government can't just appeal on the grounds of the judge's conduct.

“If the acquittal comes through, there's nothing you can do because of double jeopardy. It really is over,” said Shira Scheindlin, a former judge in the U.S. District Court for the Southern District of New York, now of counsel at Stroock & Stroock & Lavan. Scheindlin added: “The acquittal problem is almost insurmountable. The government has little recourse.”

Former prosecutors said the judge's treatment of the special counsel team could be cited by Manafort's defense in an appeal of any conviction. In such an appeal, they said, the defense might argue the judge's toughness had a “boomerang effect,” instilling sympathy among the jurors for the prosecution.

If the jury deadlocks and Ellis declares a mistrial, the special counsel's team does have some options. They could request a different judge, in a roll of the dice that whomever was assigned would take a less meddlesome approach.

“The best shot is, if there's a mistrial, between that and the next trial, you'd go after the judge,” Scheindlin said. “I have seen that. Short of that, I just don't see what you could do.”

In interviews, Scheindlin and former federal prosecutors said the special counsel team—under the supervision of Robert Mueller III, leading the investigation of Russia's interference in the 2016 election—has done essentially all that it can to deal with a difficult judge.

Prosecutors adapted to some of Ellis' more prickly ways—including his laser focus on keeping the trial moving and steering clear of what he views as unnecessary fluff.

U.S. District T.S. Ellis III. Credit: Diego M. Radzinschi/ National Law Journal

On Monday, when lead prosecutor Greg Andres showed an email to an executive at Federal Savings Bank, he told the witness to review the email but not read it aloud. When Ellis said the witness could read the email, since it was admitted into evidence, Andres said that wouldn't be necessary.

“Just wanted to move more expeditiously, your honor,” Andres said. (In a spillover room, some observers could not contain their laughter.)

In their dialogue with Ellis, the special counsel prosecutors have picked their battles but defended themselves when they felt it was necessary, said Randall Eliason, a former federal prosecutor in the District of Columbia.

“When you're the prosecution, you have very little recourse and about all you can do is basically what the prosecutors have done here: try stick up for yourself, try not to let the judge push you around, call out the judge when you think he's being unfair and request curative instructions when necessary,” said Eliason, who now teaches at George Washington University Law School. “Other than that, all you can do is keep your head down, try your case and trust that the jury decides based on the evidence rather than interactions with the judge.”

In one notable incident, Ellis berated prosecutors for allowing a witness—IRS Special Agent Michael Welch—to sit in on the trial before taking the stand. When assistant U.S. attorney Uzo Asonye challenged Ellis, telling him the witness had been approved to be in court before testifying, the judge shot back: “Don't do that again. When I exclude witnesses, I mean everybody.”

The heated exchange played out in front of jurors. The next day, prosecutors asked in a court filing for Ellis to give a “curative instruction” to the jury and make clear that he had, in fact, allowed the IRS agent and other expert witnesses to attend the proceedings.

“It appears I may well have been wrong,” Ellis later told the jury. “But like any human, and this robe doesn't make me anything other than human, I sometimes make mistakes.”

It would not be the prosecution's last request for a moment of judicial contrition.

After prosecutors questioned a Citizens Bank official about representations Manafort made in pursuit of a loan he did not ultimately receive, Ellis remarked in front of the jury: “You might want to spend time on a loan that was granted.” Prosecutors later filed a second request for curative instructions, arguing Manafort could be convicted of bank fraud conspiracy based on his representations to Citizens Bank regardless of whether he received the loan in question.

Asonye said the judge should give the jury a curative instruction to “avoid any potential prejudice to the government.” He argued that the judge's suggestion the “government was unnecessarily spending time on a loan that Manafort did not receive undermines the well-established law on conspiracy, undercuts the charge in count 28 [of the indictment], and is likely to confuse and mislead the jury.”

Ellis, before he gives the jury its instructions, will almost assuredly—as judges regularly do—tell the panel that nothing he's said over the course of the trial should be considered as evidence or as part of the credibility assessment of the witnesses.

 

Read more:

Closings Set for Wednesday After Manafort Declines to Testify at Fraud Trial

Quarrels Continue as Judge Pushes Prosecutors in Manafort Trial

OK, Got It, No More Photos Showing Manafort's Big-Spender Ways

Manafort Trial Judge Has Had It With Attorneys' Eye Rolling, Facial Gestures

 

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Ellis Kim contributed reporting from Alexandria, Virginia.