The trial of former Obama White House counsel Greg Craig on a criminal false-statement charge hit a last-minute snag Tuesday after prosecutors and the defense raised belated concerns about the jury selection process.
Opening statements in the case — which was investigated by former special counsel Robert Mueller’s office — were expected Tuesday morning, but U.S. District Court Judge Amy Berman Jackson shocked many in the courtroom by announcing that limits she placed on public access to jury selection Monday may have violated Craig’s constitutional right to a public trial.
Craig’s defense told Jackson that they did not believe they could waive Craig’s rights on the point without bringing in other lawyers. Defense attorney William Murphy also raised a concern that the court telling potential jurors that the trial could last two or three weeks may have led to some people maneuvering to get on or off the jury.
“Are you telling me we need to start over?” Jackson asked Murphy.
“Yes….It’s unfortunate,” Murphy said.
“I don’t think I really have a choice,” the judge said, looking to the prosecution.
“I agree with that,” prosecutor Fernando Campoamor-Sanchez added.
The surprising development prompted a recess while Jackson checked with the court’s jury office to see whether more jurors could be summoned and how quickly. She said initial indications were that it could take as long as ten weeks to summon an entirely new batch of jurors, possibly delaying the trial until October or November.
“This is going to take time to do it right,” Jackson said.
However, after about an hour, the judge returned to the bench and said that about 120 jurors are on call for duty in federal court this week and could be told to report Wednesday.
“It’s a little bit of a setback, but ultimately I think it’s going to delay us by two to three days,” she said.
Both sides agreed to the restart. Opening arguments are now expected Friday. Because of the delay, the trial could continue after Labor Day, the judge said.
Prosecutors appeared to have triggered the unexpected series of events late Monday by notifying the judge and the defense that the procedure Jackson used to question potential jurors earlier in the day was legally suspect.
While courtrooms are normally open as potential jurors are interviewed, with some private matters occasionally being discussed out of public earshot at the judge’s bench, Jackson used asked all 70 members of the jury pool questions as a group with the courtroom open to some members of the press, then excluded the public and press as jurors answered those questions.
As POLITICO reported Monday, prosecutors, defense lawyers and Craig’s family members were permitted to remain for that questioning, along with a jury consultant working for the defense and some support personnel.
Jackson said prosecutors later told her the procedure may have run afoul of a 2010 Supreme Court case that held closure of a Georgia courtroom during jury selection violated the defendant’s right to a public trial.
“I did something I have never done before and I closed the courtroom for voir dire,” Jackson said. She did not note that she proposed the same process for the related Paul Manafort trial before her, which was scuttled after he agreed to a plea deal.
Jackson said she decided to do the questioning in the Craig case privately in part because some jurors in past cases “vociferously” objected to having to answer questions in a public courtroom. She cited “the need for juror privacy in a high-profile case,” and noted that one potential juror discussed a mental illness issue during Monday’s private session and another talked about being the victim of a crime.
“I believe there are law and facts that justify it,” the judge said, calling it “standard practice in this court and other courts” to allow jurors to give answers privately.
However, the process she used Monday effectively closed off public access to all individual juror questioning, regardless of the sensitivity of the issues.
Jackson appeared to concede she erred by doing that, especially without making advance, on-the-record findings about why it was necessary and giving both sides a chance to weigh in.
“The defendant should have been more involved in the decisionmaking process, as opposed to passively,” the judge said, noting that neither side objected as the process played out Monday.
Craig, 74, faces a single felony false-statement charge over an alleged scheme to deceive Justice’s Foreign Agent Registration Act office when it sought information about work he and his former law firm, Skadden Arps, did in 2012 examining the politically charged trial of former Ukrainian Prime Minister Yulia Tymoshenko.
The criminal case against Craig is an outgrowth of Mueller’s now-closed investigation into Russian influence on President Donald Trump’s campaign. Justice Department officials were initially satisfied with Craig’s answers and concluded that he did not need to register as an agent of Ukraine, something Craig was reportedly not eager to do because it might impact his chances of taking another high government post in a future Democratic administration.
When the judge asked Murphy to address the access issue Monday, the Craig defense attorney raised a new concern. He said because jurors were told that the trial could last two or three weeks, it became apparent to them they were being called for Craig’s trial.
“A couple of them were clever enough to figure out what that case might be—that it was Mr. Craig’s case,” Murphy said.
Jackson said summonses with predicted trial length have been sent out “many times” by the D.C. federal court, but Murphy said the practice appeared to violate the fully random selection required by federal law.
At times Tuesday, Jackson seemed a tad irked at the defense, noting they had pressed hard for an August trial, just about four months after Craig’s indictment. White-collar cases often take a year or more to go to a jury.
“I think every single person in this room has bent over backwards to meet an impossibly truncated trial schedule,” the judge said.
The prosecution urged Jackson to try to start the trial in the coming days with the revised process and not to delay for months.
“We have witnesses that have traveled and everyone is ready to go,” Campoamor said.
Jackson said she plans to allow the press and public to witness the group assembly of the new jury pool Wednesday as they’re told about the case. The judge indicated the public will also be able to see individual questioning of jurors, although some of that will be done at the bench with a “husher” device that prevents those in the court gallery from hearing what’s said.
“The courtroom will not be locked. If someone wants to come in and watch it, they will watch it,” said the judge, sounding a tad annoyed.
It’s not entirely clear what prompted prosecutors to warn late Monday about the legal concern related to public access. However, an unusual number of top lawyers from the U.S. Attorney’s Office were in the courtroom Tuesday morning.
When Jackson proposed the new process with jurors giving some answers publicly and others in private, Assistant U.S. Attorney Molly Gaston turned to more senior prosecutors from the U.S. Attorney’s Office sitting in the first row of the courtroom. Deborah Curtis, the office’s deputy chief for national security, nodded her assent.
Craig has the unwelcome distinction of being the most prominent Democrat snared in Mueller’s probe. Craig’s Ukraine-related work apparently came under fresh scrutiny in 2017 by Mueller’s team as they examined the history of two top Trump campaign officials, Manafort and Rick Gates.
The Mueller prosecutors referred the issues related to Craig to federal prosecutors in New York. The matter was later transferred to prosecutors in Washington, who obtained the indictment of Craig in April on two false-statement counts. One was dropped by the judge in a ruling last week.
Manafort and Gates spent years as highly-paid consultants to Ukrainian President Viktor Yanukovych and were involved in hiring Craig for the $4 million assignment to assess the fairness of Tymoshenko’s trial and in efforts to publicize the 186-page Skadden report released in December 2012.
Manafort, who served for a few months as Trump’s campaign chairman, is serving a seven-and-a-half year prison sentence after being convicted at one trial of tax and bank fraud and pleading guilty to head off another trial more directly related to the Ukraine lobbying at the heart of the case against Craig. The once high-flying lobbyist and political consultant is not expected to testify.
By contrast, Gates is expected to be a key prosecution witness against Craig. The former Manafort deputy is still actively cooperating with the government as he awaits sentencing on conspiracy and false-statement charges he pleaded guilty to relatively early in the Mueller investigation.
CORRECTION: Fernando Campoamor-Sanchez‘s name was wrong in an earlier version of this article.