The jury in the highly publicized criminal tax and bank fraud case against former Trump campaign chairman Paul ManafortPaul John ManafortManafort book set for August publication Accused spy's lawyers say plans to leave country were over Trump, not arrest Countering the ongoing Republican delusion MORE is not under sequester, a fact under scrutiny as jurors settle into their third day of deliberations.
Federal District Judge T.S. Ellis III did not order the six men, six women and four alternates to be sequestered throughout the trial, and even allowed them to recess for the weekend shortly after 5 p.m. on Friday.
At the end of each day, he’s sent them off with the same reminder: Don’t talk to anyone about the case, don’t read the paper or watch the news, and don’t do any research on your own.
The fact that the jury in the Manafort trial — the first test in court for special counsel Robert MuellerRobert (Bob) MuellerAn unquestioning press promotes Rep. Adam Schiff's book based on Russia fiction Senate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG MORE’s team of prosecutors — isn’t sequestered is not necessarily a surprise.
“It’s very rare, it’s very expensive and it’s a huge burden on jurors,” Seth Waxman, who worked for 13 years as a federal prosecutor in the U.S. Attorney’s Office for the District of Columbia, said of forcing a jury to stay together in a hotel, out of public view, for the duration of a trial.
But the Manafort trial is unusual — in part because the president of the United States has taken a keen interest in its outcome.
On Twitter, Trump suggested Manafort is being treated worse than American gangster Al Capone and called his former campaign chairman a “good guy” when speaking to the press. Trump has also regularly derided the Mueller investigation, which is examining whether there was collusion between his campaign and Moscow, as a politically driven “witch hunt.”
Such publicity could make it difficult for jurors on the trial to ignore what’s being said about it.
It also casts a political spotlight on the trial, creating a sense that a verdict of guilty would be a partisan blow to the president.
“In this particular case it's highly unusual these people are not sequestered,” said David Weinstein, a former federal prosecutor in the U.S. Attorney’s Office in Miami.
“With everyone talking about it, myself included and our president, it’s hard for these jurors to keep eyes and ears closed and not pick up comments on the peripheral.”
Waxman said Trump is paying close attention because he has a stake in the case.
“My opinion is this whole trial is 95 percent about flipping Manafort. Manafort was one of three key people in the Trump Tower meeting,” Waxman said, referring to the meeting between Manafort, Donald Trump Jr.Don TrumpRittenhouse to speak at Turning Point USA event White House calls Jan. 6 text revelations 'disappointing' Court orders release of some redacted passages of Mueller report MORE, Jared KushnerJared Corey KushnerKushner investment firm raises more than B: report Trump: Netanyahu 'never wanted peace' with Palestinians Biden celebrates start of Hanukkah MORE and a Russian lawyer.
Manafort faces 18 criminal charges, including tax evasion, failing to report overseas accounts, bank fraud and bank fraud conspiracy.
Either party can request jury sequestration or the judge can make the determination on their own. The special counsel's office declined to comment on whether a non-sequestered jury raises any concerns for the prosecution. Manafort's team, meanwhile, declined to comment on whether it helps their defense.
Randall Eliason, a George Washington University law professor and former assistant U.S. attorney for D.C., noted that other high-profile juries have not been sequestered. He mentioned the federal corruption trial against former Virginia Gov. Bob McDonnell (R).
“It's quite a hardship for the jurors,” he said in an email to The Hill. “We're already asking them to give up the time required for the trial; now you're also going to ask them to stay in some cheap hotel for the duration and not be able to go home to their families at night?”
While rare, there have been high-profile public cases in which the jury has been isolated: the jurors in Bill Cosby’s sexual assault trial last year were sequestered, as were those in O.J. Simpson's murder trial in the mid-1990s. Those proceedings, however, were in state court. Manafort’s case is a federal trial.
Typically, a judge makes the decision to a sequester a jury, often when there is risk that outside interference could affect a juror’s ability to be fair and impartial or when there are heightened security concerns.
A coalition of media outlets asked Ellis on Friday to release the names and the addresses of the jurors, but Ellis refused, citing concerns for their safety. Ellis said he personally has received threats and is under the protection of U.S. marshals.
“I had no idea this case would excite these emotions, I will tell you frankly,” he said.
While either party could request jury sequestration, it’s ultimately up to the judge to decide.
But even sequestration, some say, can’t keep a jury isolated from all influences.
“You can only keep jurors from hearing so much outside information, and sequestering doesn’t necessarily change that,” said Glenn Kirschner, a former federal prosecutor with the U.S. attorney’s office in Washington, D.C.
While jurors are operating on the honor system, Waxman said they could still be charged if they violate the judge’s order.
“It is the honor system, but it has a criminal contempt charge at the end of it,” he said. “There is a sanction a judge could impose on a juror who violates that rule.”