Trump Tweet Intended for Jurors

President Trump’s latest outrageous tweet characterizing the charges against Paul Manafort as a “hoax” is a huge gift to the Manafort defense and a criminal act by the President.

Let’s start with the gift.

Remember that the President is the chief law enforcement officer of the United States.   As such, his statements bind the Department of Justice.  To the extent that they are relevant to a criminal prosecution, they are likely admissible at trial.

When the President says that charges are a hoax, that’s an admission by the United States that the prosecution is not meritorious.  Should a jury know that?

Consider a product liability case where a car owner alleges an accident occurred because his brakes were defectively designed.  If the CEO of the car company says — or tweets — that their brakes are defective, that statement is plainly admissible at trial.  So, too, with the President’s “hoax” tweet alleging that the prosecution is defective.

If I were defending Paul Manafort, I’d offer the tweet into evidence.   And if I were the judge, I’d admit it into evidence.  It’s likely that some of the jurors are Trump supporters and it’s highly plausible that this evidence would prevent a conviction.

Is that the President’s intention?  Of course it is.  He wants Manafort acquited or the jury to hang, as that’d be a body blow to Robert Mueller’s efforts.  And an acquittal would remove Manafort’s incentive to cooperate with Mueller against Trump so as to avoid a long sentence.

Let’s also remember that while the judge has told the jury not to read anything about the case, he hasn’t sequestered them or seized their iPhones.  Chances are one or more of the jurors know or will learn of the President’s dissing of the charges.  Thus, the President is likely to affect this case regardless of whether the tweet is admitted.

So where’s the crime?  Well, if the tweet isn’t admitted but jurors learn of it, that may affect their deliberations just as easily as if it were introduced in open court.  It’s natural to infer that this “hoax” message is intended, at least in part, for the jury, and is also intended to coax an acquittal.

It’s illegal to hand jurors literature while they’re walking on the sidewalk that’s intended to affect their deliberations.  And in 2018, it’s also illegal to affect their deliberations by tweet.  It’s called jury tampering.

Some might say something like  “yeah, but that’s just Trump popping off.”   If the point is that this is the kind of stuff Trump does all the time, that’s true.

This is the same guy who urged the Russians to hack Hillary Clinton’s emails, who fired the FBI director to stop the Russian probe and who’s repeatedly cajoled his Attorney General to do the same thing.

But while some bad acts might anesthetize us to more bad acts, that’s no excuse.  And now the President is messing with a criminal trial — while it’s occurring.

Judge Ellis shouldn’t put up with it.  He has a responsibility to do all he can to assure the integrity of the proceeding in front of him.  That integrity is threatened by this corrupt President.

Few remember it, but it was another federal district court judge, John Sirica, who ordered the release of the Watergate tapes and set in motion the demise of the Nixon presidency.  Something similar could happen here.

This tweet won’t change public opinion.  Nearly everyone in America seems to have chosen sides and nothing seems to move them.

But nearly everyone isn’t everyone.  And the remaining neutrals include Judge Thomas Selby Ellis III and the rest of the federal judiciary. So while this tweet won’t affect the polls, they may bring the ire of a federal judge and his brethren.  And that may influence or lead to a charge, conviction or other legal consequence for Donald J. Trump  — sometime, somewhere, by someone.

 

Shanin Specter is a trial lawyer at Kline & Specter in Philadelphia.  He teaches law at Hastings, Stanford, Berkeley, and Penn law schools.  
You can contact him via e-mail at shanin.specter@klinespecter.com
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