He tried to make this point to the jury, I should clarify. The judge saw where he was going with it and stopped him.
“You know what’s funny? Yesterday Manafort was convicted,” [defense lawyer Kafahni] Nkrumah said, alluding to the trial of Trump’s campaign chairman Paul Manafort. The Manafort trial featured testimony from a cooperating witness.
Nkrumah was immediately stopped due to an objection from the government.
Out of earshot of the jury, Nkrumah explained that he planned to cite Trump’s remark that “It’s called flipping and it almost ought to be illegal.”
Judge Gregory Woods told him to drop it, noting that it’s a “politically charged, polemic issue,” that Manafort’s trial had nothing to do with the matter at hand, and that, after all, Trump didn’t say that “flipping” should be illegal but it “almost” should be illegal. It’s legal! The prosecution can do it. So why point out to the jury what Trump’s opinion of it is?
Which made sense to me at first blush. In a state prosecution, who cares what the president thinks? He plays no role in the proceedings. He’s basically just a celebrity with his own goofy opinion. But then I looked up Woods and saw that he was appointed to the bench by … Barack Obama. This wasn’t a state trial, it was a federal trial. And the president, as he often reminds us, is the head of the Department of Justice that was prosecuting Nkrumah’s client.
If the de facto head prosecutor is on record as believing that a tactic being used by his deputies is dubious, why shouldn’t the defense be allowed to note that? It’s a damning admission by the government that the type of evidence they’ve offered should be viewed skeptically. Woods is right that Trump never said in his “Fox & Friends” interview that “flipping” should be flatly illegal but that’s missing the forest for the trees. Trump’s point was that testimony provided by cooperating witnesses is inherently untrustworthy, legal or not. He said it in the context of the Manafort trial but didn’t limit his critique to that trial specifically. (“I have seen it many times. I have had many friends involved in this stuff.”) Surely that’s relevant at other federal trials given Trump’s own indirect role in the proceedings.
Prosecutors are actually anxious about this, per former Assistant U.S. Attorney Renato Mariotti:
Federal prosecutors I’ve spoken to are worried about the effect Trump’s remarks against “flipping” will have in their ability to prosecute cases. Prosecutors routinely rely on cooperators to make cases. https://t.co/TiklMcLW2s
— Renato Mariotti (@renato_mariotti) August 28, 2018
The fact that prosecutors leaped to object as soon as Nkrumah mentioned Manafort suggests they were on guard for exactly this point being made in closing arguments. Their objection worked this time. It won’t work every time. Some federal judge somewhere will be less inclined than Woods was to help out the DOJ and will instead allow the boss’s words to be used against it. But most probably *will* follow Woods’s lead, for the simple reason that they don’t want to let the presidential loose cannon’s public skepticism of his own prosecutors be used to spoil otherwise meritorious convictions. Given a choice between letting a defense lawyer quote Trump to get a drug dealer off and pretending that Trump doesn’t exist, most judges will choose door number two, I’m sure. But probably not all. Stay tuned.
Nkrumah’s client was convicted of conspiracy to deal crack, by the way, no doubt thanks in part to the “flipper.”
— FOX & friends (@foxandfriends) August 23, 2018