It is, at the very least, highly unusual for the former chair of a sitting president to go on trial for financial fraud charges connected with his political consulting business.  However, barring any last minute delay, jury selection in the Eastern District of Virginia is scheduled to start this upcoming week in the case of United States vs. Paul Manafort.   The essence of the charges is that Manafort engaged in various financial scheme to hide foreign source money to avoid paying income taxes on them and further misrepresented his assets in dealing with financial institutions in the United States.  As Trumpistas like to emphasize, these charges technically have nothing to do with the Trump campaign.  And the connection with Russia is indirect.  On the other hand, that Trump hired this person to run his campaign does not reflect well on Trump’s judgment or the people that he hires for key positions.  And his clients were Ukrainian politicians supporting closer ties to Russia instead of closer ties to Europe and NATO.  This type of second hand connection with Russia has been legion in the Trump Administration and calls into question how this Administration views Russia’s efforts to expand its influence at the expense of the United States.

As with all trials, the first step of the trial will be jury selection.  In state courts, trial courts are typically organized on the county level.  So, barring a change of location, if you commit a crime in Atlanta, Georgia, all of your jurors will come from Fulton County.  Federal courts, however, cover a wider geographic area.  In the smaller states, there is one federal court district.  Larger states, however, tend to have multiple districts.  In Virginia, there are two districts — the Eastern District and the Western District.  Manafort’s case is in the Eastern District.  Even in the smaller states, most districts are subdivided into divisions.  The Eastern District of Virginia has four divisions, each designated based on the city in which the courthouse is located:  the Alexandria, Newport News, Norfolk, and Richmond Divisions.  Manafort’s case is in the Alexandria Division which covers Loudon, Fairfax,   Fauquier, Arlington, Prince Williams, and Stafford Counties and the City of Alexandria.  As such, the potential jurors will come from all of these counties.

The key part of jury selection is what lawyers call voir dire — the questioning of potential jurors to see who is qualified to sit as a juror.  In almost every jurisdiction, the law gives the trial judge control over voir dire.  In state courts, for the most parts, judges allow the lawyers to conduct voir dire.  In many federal courts, judges conduct voir dire themselves with input over the topics to be covered coming from the attorneys.  I have not seen anything about how the judge presiding over this case handles voir dire.

There are certain things that are somewhat the same regardless of where the case is being tried or who is trying it.  There will be questions about whether jurors know the parties, the attorneys, or the witnesses.  There will be questions about the basic legal principles involved in the case and whether the prospective jurors can follow the court’s instructions on those issues.  And there will be questions about “hardship” — something physical condition or scheduling issue that could keep the juror from being able to serve on the jury (e.g. a major surgery scheduled or pre-paid vacation or a back condition that requires the juror to stretch every ten minutes).

One of the things that comes up in every case, but is more significant about this case is the topic of publicity.  It’s a concern in every case.  Even for that traffic accident, lawyers never know what gossip may have spread around the neighborhood about what really happened.  And many serious cases (e.g., murders) get brief mentions in the local media at the time of the crime and maybe the arrest, but then quickly disappear from tv and newspapers.   This case, however, falls into that very tiny category in which media attention never goes away.

Under the governing legal standard, the issue is not whether any potential juror has heard about this case.  In fact, any juror who states that they have not heard about the case is either lying or should be kicked off the jury for other reasons.  Instead, the question is whether that juror has formed a fixed opinion and is unwilling to set aside what they may have heard and commit to deciding the case solely on the evidence presented in the courtroom.

Despite the arguments from Manafort’s attorneys to date, and the arguments that will be made during the trial about individual potential jurors, by the end of the process, there should be enough qualified jurors for the trial to proceed and for the case to stand up on appeal.  The last time that this issue got to the United States Supreme Court in 2010.  The case was Skilling v. United States.  Mr. Skilling was the former CEO at Enron which, prior to its collapse, was a major energy company in Houston, Texas.  Needless to say, its implosion due to financial chicanery by the top executives was major news both in Houston and nationally where the nasty details led to major legislation — the Sarbanes-Oxley Act — designed to prevent similar financial tricks in the future.   Despite the publicity, the trial court declined to move the trial out of the Houston Division of the Southern District of Texas.

The Supreme Court found that, in most cases, even extensive publicity does not mandate a change of venue.  In discussing this issue, one factor noted by the Supreme Court was the size of the area from which the jury was drawn.  Here, as in one of the cases, cited by the Supreme Court, the jury pool is drawn from the heavily-populated suburbs of Washington, D.C.    Furthermore, the individual jurors who actually served in Skilling gave answers indicating either that they paid minimal attention to what they might have heard through the news about the case or that they did not form any significant opinions from what they might have heard.  It is highly likely that the voir dire in Manafort’s case will result in a sufficient number of potential jurors giving similar responses.  In other words, the jurors may recall hearing that Manafort had been charged and knowing that it has something to do with his consulting for campaigns in other countries, but not have any strong opinions about the disputed issues in the case.

Once you get past voir dire, financial fraud cases are heavily dependent on financial records.  The challenge for the prosecutors in such cases is how to use live witnesses to help the jury understand the documents.   Some of the alleged misdeeds are pretty straightforward, but there will still be the need to follow the money trail and compare various documents to demonstrate that certain payments were laundered through certain businesses and did not appear on financial filings made with the IRS or other appropriate federal authorities.  One key fact helping the prosecution is that Manafort’s business partner, Rick Gates, is a cooperating witness, so jurors will get to hire from an insider about the entire scheme.  On the other hand, jurors tend to be somewhat suspicious of cooperating witnesses, particularly if they got a great deal.  In this case, given that Gates’s deal is only good if he and Manafort are actually guilty should help.

Federal trials are rarely quick.  The Eastern District of Virginia is known for keeping cases progressing at a somewhat faster pace than in other districts.  The tentative witness list for the government is thirty-five witnesses.  It is likely that some of those witnesses are what could be considered back-ups — witnesses who can be called if the primary witness does not come across well or an objection keeps them from testifying about a certain matter because they lack adequate personal knowledge or expertise.  However, even if the government only calls twenty-five witnesses that could take several weeks with cross-examination.

While Trumps supporters want to deny it, the results of these trials could have a major impact on the Mueller investigation of the President.  Up until this point, Manafort has not been interested in cooperating with Mueller.  A conviction on multiple counts, however, would increase the pressure on Manafort to cooperate.  Furthermore, it would force Trump to decide if he is going to intervene by pardoning Manafort.