Can Manafort's team make a killer close?

Luppe B. Luppen
Contributor
Yahoo News photo Illustration; photos: AP, Getty, Reuters

ALEXANDRIA, Va. — Paul Manafort’s opportunities to attack the weighty federal case against him here have dwindled to a two-hour closing argument.

President Trump’s former campaign manager’s defense team lost all of the motions it made publicly (not counting a few edits to jury instructions that it proposed jointly with Mueller’s team), declined to offer any evidence or call any witnesses of its own, and accepted a half-hour reduction in the time allotted for its final case to the jury.

After hearing 10 days of prosecution evidence, the jury entered the courtroom for a only few minutes after lunch on Tuesday to hear lead defense lawyer Kevin Downing formally rest Manafort’s case. The jurors then learned from the judge that they would have the rest of the afternoon off. Closing arguments began Wednesday at 9:30 a.m., with Greg D. Andres, the lead attorney from the special counsel’s office, offering a measured presentation of the prosecution’s case. The defense is set to present its closing starting at 1:30 p.m. Wednesday; the defense team confirmed to the judge that two of Manafort’s attorneys, Downing and Richard Westling, will take turns presenting different aspects of the defense’s closing argument.

From the outset of the trial, it has been difficult to discern the defense’s theory of the case. Two members of the defense team declined to comment about strategy.

Slideshow: Former Trump campaign chairman Paul Manafort’s trial in Alexandria, Va. >>>

However, a member of the special counsel’s team has a concise assessment of the defense’s approach, at least when it comes to cross-examination. Last week, Uzo Asonye, one of Mueller’s prosecutors, told me what he thought the defense was driving at in its cross of a witness from Citizens Bank.

“We like clarity,” Asonye observed. “They like confusion.”

The defense team’s cross-examinations of the prosecution’s witnesses have not adhered to any one theme. Instead, they have presented a patchwork, stitching together suggestions that, among other things: Rick Gates is the true criminal mastermind; the government has gone overboard elevating into a federal case the messy process of exchanging information with one’s bookkeepers, accountants and bankers; and the special counsel’s indictment pushed Manafort’s healthy finances toward oblivion.

Each of these themes is superficially appealing, but on closer examination appears to be poorly supported by the evidence. If Gates was the real bad actor, why did most of the illicit funds and creature comforts (from ostrich jackets to ultra-premium Yankees tickets) flow into Manafort’s hands? How can the “messy process” defense account for a series of apparently deliberate fabrications, and why — time after time — did the supposed mistakes seem to always paint a rosier picture of Manafort’s finances than reality? Given the evidence that Manafort was in a desperate financial situation throughout 2016, what evidence supports blaming the indictment for his financial problems?

The defense team has decided not to present any defense witnesses, nor any further documents, to answer these questions before the jury. If they are to be answered, Downing and Westling will have to do it Wednesday afternoon. And ultimately the jury will decide whether the defense has managed to piece together reasonable doubt.

Kevin Downing, lead defense lawyer for Paul Manafort, speaks to the media outside District Court in Alexandria, Va., on Tuesday. (Photo: Al Drago/Bloomberg/Getty Images)

When the government rested its case against Manafort yesterday, the defense had an opportunity to move for the judge to throw out some or all of the charges before the jury begins its deliberations. While defense lawyers made the formal motion on all 18 counts, they chose to present arguments to the judge attacking only four counts, conceding that the other 14 counts would go to the jury. This limited motion may have been an effort to concentrate fire on what the defense views as the most vulnerable part of the indictment.

The four counts the defense challenged in earnest concern the bank fraud charges against Manafort relating to the Federal Savings Bank in Chicago. The prosecutors presented evidence that Manafort, as part of his applications for $16 million in loans, submitted false income statements to the bank and fabricated a story about lending his American Express Plum Card to Rick Gates in order to explain away hundreds of thousands of dollars of outstanding credit card debt (when, in fact, Manafort had created the balance by buying ultra-premium Yankees season tickets for his own use).

Prosecutors also introduced evidence that Steve Calk, the CEO of that bank, was extremely eager to get a job in the Trump administration, saw Manafort as his way in, and pushed his bank to approve Manafort’s loans as part of a heavy-handed quid pro quo. Manafort’s defense team, rather than challenging this evidence, tried to turn it into a defense. Manafort’s lies couldn’t be material misrepresentations, they argued, because Calk was steamrolling everyone inside the bank, and those loans would be approved no matter what Manafort had submitted.

Prosecutors responded by pointing out, among other things, there wasn’t actually evidence that the loans would have been made no matter what, and what counts as a material representation is what a “reasonable bank” would consider material, and that Calk and the bank are legally separate entities. Ultimately, the defense lost the motion.

Notwithstanding the high stakes of the case, the attorneys for the prosecution and defense appeared to be getting along. After the judge recessed court for the day on Tuesday afternoon and most of the reporters and other spectators had filed out, the opposing teams hung around in the well of the courtroom familiarizing themselves with the presentation system to prepare for their closing arguments Wednesday morning.

Westling called up a sample powerpoint slide. The slide appeared to be designed to express the idea that the jury can convict Manafort of a charge only if the government meets a very high burden — proving every element of the crime beyond a reasonable doubt. The design included about a dozen colored boxes arranged one on top of the other to form a sort of culpability gradient. All but the very top box were the varying bluish shades of acquittal — fading from a dark, deep cobalt and approaching white. The box at the very top was labeled “guilty,” and it alone was fire engine red.

“I’m glad we’re using red, white and blue,” Andres, the lead prosecutor from the special counsel’s office observed, looking up at the slide.

“Red, white and blue are the colors of everyone,” Westling replied.

“What do you mean — Ukraine?” Andres shot back with a smile, prompting laughter in the emptying courtroom.

No one mentioned that the Ukrainian flag is blue and yellow. Or that the Russian flag is white, blue and red.

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