As legal strategies go, this … is certainly one of them. Defendants do not have to prove their innocence, after all; prosecutors have to prove guilt beyond a reasonable doubt. Rather than present a case that Robert Mueller’s team has failed in that effort, Paul Manafort’s legal team has decided they won’t need to do so:
Attorneys for Paul Manafort, the former Trump campaign chairman who is on trial for financial crimes in federal district court Alexandria, Virginia, will not present a defense of their client, ABC News has learned.
Government prosecutors from Special Counsel Robert Mueller’s office rested their case on Monday, so without a defense, the jury is expected to begin deliberations following closing arguments.
The announcement came after Manafort’s team moved to dismiss the case, a motion that Judge T.S. Ellis denied. A motion to dismiss after the prosecution rests is a fairly regular occurrence, although succeeding on it is much less common. The judge has an opportunity to confirm that the prosecution has presented enough evidence for a jury to consider the charges without weighing in on surpassing the standard of reasonable doubt. That’s what Ellis did, which seems significant given his initial skepticism over the government’s case.
So why not present a defense? There are some very good potential reasons for that decision, Ken “Popehat” White noted on Twitter, providing a primer on the advantages of resting without putting on a case. Not only does it avoid the awkwardness of not having the defendant testify on his own behalf, it also allows the defense’s cross-examinations of prosecution witnesses stand on their own, without giving prosecutors a chance to damage your own witnesses:
/3 If your defense case is marginal anyway, resting is a way to convey to the jury a level of confidence that the government has nothing. It's a way to emphasize that it's the government's burden. https://t.co/3n2q71JXVJ
— SituationRoomHat (@Popehat) August 14, 2018
/6 …when you've already accomplished what you want (showing Gates to be a liar, for example), you need to be careful of trying to pile more on, because things can go wrong and you can lose what you accomplished.
— SituationRoomHat (@Popehat) August 14, 2018
In other words, it’s perhaps crazy-like-a-fox territory here, especially when Manafort’s defense witnesses would probably be “skeevy” enough for prosecutors to shred on cross. Better to stick with their own shredding of Rick Gates, Manafort’s former partner and Mueller’s star witness, and hope that a jury will find reasonable doubt as to who’s the real bad guy here.
It might also help if/when the case goes to appeal, which seems likely on at least some counts if the jury convicts Manafort. The dismissal motion clearly intends to lay out a path on appeal, depending on the counts on which the jury convicts, if any. Politico’s Kyle Cheney reports that the defense argued in the dismissal motion that Mueller’s team didn’t do its job on the fraud allegations:
In another development Tuesday, Ellis rejected a defense motion to have the judge acquit Manafort on all 18 counts he faces on the grounds that the prosecution failed to present adequate evidence for any reasonable juror to convict.
Such motions are routine and are rarely granted. But Manafort’s team attacked in particular four felony charges he faces over alleged fraud in applying for $16 million in loans from the Federal Savings Bank in Chicago. The defense contends prosecutors never showed that what they claimed were Manafort’s misstatements were actually relevant to the bank’s decisions.
Instead, Mueller’s team has presented evidence that the bank’s CEO, Stephen Calk, was insistent on granting the loans regardless of any issues flagged by his subordinates. Calk was seeking a senior Trump administration post at the time.
In an audacious argument filed with the court late Monday night, defense lawyers contended that Calk’s desire to make the loan was so unwavering that it rendered trivial any alleged falsehoods on Manafort’s part.
Ellis called the argument “significant,” but that the decision on that question was for the jury to decide, not him. Manafort’s attorneys may be betting that an appellate court will see that question differently, although it’s probably a long shot, too.
At any rate, it’s now down to the closing arguments. That means that unless either side raises the issue of Trump or Russia in their final summations — which would likely be improper anyway — the one trial Mueller’s team will finish without addressing at all its core mission, and without flipping Manafort to deal with it either.