Friday, August 17, 2018

The Manafort Trial - Judging the Judge's Conduct (8/17/18)

While there have been any number of pundits pontificating on the Manafort trial, I have not offered those pundits pontifications because I am not sure whether they really contribute much to the readers of this blog.  I do, however, offer this one by Nancy Gertner (Wikipedia here), who has been a private practitioner and federal judge and is now Harvard Law School professor.  She is quite accomplished.  And, she is well known to students of tax procedure for a leading case -- United States v. Gertner, 65 F.3d 963 (1st Cir. 1995), here -- I had tax procedure students read.  In that case, the IRS attempted to end-run the requirements for a John Doe Summons procedure by issuing a regular summons to her law firm.  I provide a discussion of that case at the end of this blog.

I first offer her WAPO Opinion piece:  The extraordinary bias of the judge in the Manafort trial (WAPO 8/16/18), here.

Key excerpts:
The performance of U.S. District Court Judge T.S. Ellis III in the trial of Paul Manafort on bank fraud and tax evasion charges has been decidedly unusual. 
During the trial, Ellis intervened regularly, and mainly against one side: the prosecution. The judge's interruptions occurred in the presence of the jury and on matters of substance, not courtroom conduct. He disparaged the prosecution's evidence, misstated its legal theories, even implied that prosecutors had disobeyed his orders when they had not. 
Under the Code of Conduct for U.S. judges, a judge is supposed to be fair and impartial, as well as "patient, dignified, respectful and courteous" to those in his courtroom. The rule's concern is as much about the appearance of justice as its reality. If the judge violates that rule and a defendant is convicted, there may be a trial remedy — an appeal. 
But there will be no appeal available to address Ellis's anti-prosecution bias if Manafort is acquitted by the jurors, who began deliberating on Thursday. The prohibition against double jeopardy precludes it. And if President Trump's former campaign chairman is convicted despite Ellis's interventions, the judge's hostility toward the prosecution will have been irrelevant.
Now, here is an excerpt from my Federal Tax Procedure Book on the Gertner case (footnotes omitted):
In United States v. Gertner, 65 F.3d 963 (1st Cir. 1995), which you should now read, a law firm filed a Form 8300 (Report of Cash Payments Over $10,000 Received in a Trade or Business) notifying the IRS that the law firm had received in excess of $10,000 in cash.  The form, however, failed to identify the taxpayer, asserting ethical grounds, the attorney client privilege and constitutional grounds. The IRS then issued a regular IRS summons to the law firm to produce the withheld information.  The IRS used the regular IRS summons as opposed to the JDS on the ground the Supreme Court blessed in Tiffany Fine Arts -- i.e., that the summonsee's – the law firm’s – taxes were being investigated as well as the unknown taxpayer's taxes.  Analyzing the case under the Powell good faith standard, the district court concluded that the IRS's grounds for using the general summons -- i.e., that it was investigating the law firm's tax liability -- was pretextual, mere smoke and mirrors to achieve the real goal of discovering the identify the unknown taxpayer in order to investigate him.  The Court of Appeals affirmed, noting importantly that the JDS procedure required advance court approval, a procedure the Government sought to avoid here on the pretext that it was after something more than the taxpayer's identity.  The Court of Appeals noted that the requirement of advance court approval could not be ignored by the IRS simply by chanting in the affidavit a litany based on Tiffany Fine Arts.

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