Lawyers are not supposed to make things worse for their clients and we definitely are not supposed to wager our law licenses on a particular outcome.  Yet, in the Paul Manafort legal melodrama, that seems to be exactly what has occurred. Paul Manafort entered into a plea bargain agreement with the Special Prosecutor, Robert Mueller. Yet, at the same time, his lawyers also talked with the Trump legal team. Rudy Giuliani said the Manafort lawyers discussed the Mueller probe with Trump’s lawyers. They gained valuable insights, added the former New York City mayor. That is a remarkable admission.

Mr. Giuliani said the Trump lawyers “grilled” Kevin Downing, lawyer for Mr. Manafort, about whether the President knew about the 2016 meeting with the Russians at Trump Tower. See Axios report. And, in fact, that was one of the areas of questions posed to the President by the Mueller team.

Mr. Manafort’s lawyers engaged in those discussions with persons who could grant Manafort a pardon. That suggests the Manafort lawyers were motivated by a desire for a pardon. That suggests the President and his legal team may have suborned perjury. Suborning perjury means to bribe or somehow induce a person to commit perjury. It is a crime. Legal experts have expressed surprise that the lawyers for Manaofort and Mueller would put their law licenses at risk that way. See The Hill news report.

And, of course, at about the same time as all this information emerges, Pres. Trump said he would not rule out granting Manafort a pardon, making it clear a pardon was possible. The president has in effect dangled a dog bone of a pardon before the panting Manafort. Yet, Pres. Trump’s lawyers must realize how that looks. A good prosecutor, even one without the competence of Bob Mueller, would almost certainly look into what was said between the Manafort and Trump legal team. As a class, us lawyers hate to become witnesses. As a witness, we become burdened with a conflict of interest and must withdraw from the legal matter. The lawyers for Pres. Trump have remarkably exposed themselves to legal liability on so many levels. They have likely made themselves witnesses to possible perjury.

Regardless of what was actually discussed, these developments have opened the door to deeper, more extensive investigation. Like doctors, lawyers are expected to if nothing else, do no harm to your client (or to your law license). Yet, these lawyers appear to have done exactly that, harm to the President’s case and to their own law licenses. This is a bizarre turn of events.

 

I wrote about a pushy judge in the Paul Manafort trial here. The judge was fussing at the prosecutor and the prosecutor fussed back a bit. Now, the judge has apologized and explained to the jury that he was “probably wrong” for criticizing the prosecutor regarding one of the witnesses. IRS agent Michael Welch had been allowed earlier to sit in the court room and observe testimony. Perhaps forgetting his previous order, Judge Ellis fussed at the prosecutors for allowing a witness to sit in the court room prior to his testimony. So, later the prosecutorial team asked the judge to explain his oversight to the jury. See The Hill news report here.

It is probably symptomatic of the poor working relationship between the judge and the prosecutors that this inadvertent mistake occurred. The judge had fussed at them so much that he assumed they had erred. He spoke too soon, apparently.

Trials are not what we see on television. The judges and juries are not always somber, listening closely and making no mistakes. This is real life. The prosecutors saw the error and asked the judge to fix it. The judge is acting strangely. When relating a ruling that the prosecutor, Greg Andres did not like. Judge Ellis said Mr. Andres should not cry. The prosecutor said he was not crying. Judge Ellis remarked that well, his eyes were watery. There was no need for that retort.

In federal court, all lawyers run into the challenge of an overbearing judge. It can happen in state court. But, generally, pushy judges are mot likely to be encountered in federal court. In the Paul Manafort trial, the judge is not necessary overbearing, but he constantly presses the two sides to avoid lengthy, tedious testimony. That pressure has led to verbal fencing between the judge and the prosecutor.

For example, there was this exchange between Greg Andres, the prosecutor and Judge T.S. Ellis:

“The day’s first significant altercation came as Andres sought to question Manafort’s former  deputy, Rick Gates,            about his travels, using his passport as a visual aid.

“Let’s go to the heart of the matter,” Ellis said.

“Judge, we’ve been at the heart. …” Andres replied, before the judge cut him off.

“Just listen to me. … Don’t speak while I’m speaking,” the judge said, sharply. He added that he didn’t see how the testimony on travel “amounts to a hill of beans” with regard to the charges against Manafort, the former Trump campaign chairman.

See Politico news report.

There have been several such instances of Mr. Andres sniping at the judge and the judge fussing at him for perceived lack of respect, not looking at the judge, rolling his eyes, etc. In a criminal trial, the prosecutor can sometimes take the judge on like that. But, in a civil trial. the jury will perceive it as bad that the judge is fussing at a lawyer. So, usually in civil trials, we do not fuss back. In any event, it is frustrating that some judges will not let you provide testimony you believe essential to your case.