Paul Manafort’s $10 million bail was revoked on Friday by a federal judge after prosecutors working with special counsel Robert Mueller filed two new counts accusing Manafort of witness tampering during his period of home confinement while awaiting trial on the original charges. Basically, a judge found there was credible evidence Manafort was witness tampering, which qualifies as a legal basis to revoke bail.
But what really happened is that Mueller’s team only introduced evidence that Manafort had attempted to reach and was possibly in contact with witnesses in connection with the original charges. Talking to witnesses is not the same thing as witness tampering.
In the context of mounting a defense, even for far less serious charges, it’s routine for defense investigators and even the defendant himself to contact witnesses and ask what they may testify to. Unlike the popular crime dramas on TV, there is rarely a surprise moment in a trial when a witness says something completely previously unknown to the parties. Trials are not in and of themselves the discovery phase. Attorneys don’t ask questions during direct and cross-examinations having no idea what the witness will answer. In fact, it’s one of the cardinal rules of trial practice to never ask a question that you don’t already know the answer to.
So how do the lawyers and parties know what witnesses will say? By talking to them. Interviewing them. Getting statements down in writing to ensure witnesses won’t change their story mid-trial. Defense investigators make a living off of talking to witnesses and gathering their testimony. Counsel for both parties make decisions on who to subpoena and what questions to ask based on investigations. Unlike TV, big trials aren’t prepared in two hours and competent attorneys don’t just wing it.
Merely communicating with a witness (absent a protection order or other court order) does not qualify as tampering. But when over-zealous prosecutors are out to taint the court of public opinion, not to mention potentially controlling witnesses, it begins to make sense why there was such a quick move to literally lock down Manafort.
Beyond the concerning and clear manipulation power that prosecutors have over pretrial matters, the other key element here is the judge. Unfortunately, many judges (even those without predisposed political bias, which may be at play here) would rather err on the side of caution with respect to bail conditions than enforce constitutional protections for the accused.
Let’s not forget that the burden of proof rests squarely upon the prosecution. Bail is a pretrial process that is supposed to ensure two things: first, that the accused will show up in court; second, contemplate community safety while the trial is pending. The latter community safety element is where prosecutors have the most wiggle room. As a defense attorney, I have seen prosecutors routinely argue community safety when the context of the pending charge is clearly not a risk to the community as a whole, and there is already a temporary protection order for the one specific alleged victim.
Bail is not supposed to contemplate the seriousness of the offense alleged. The Sixth Amendment requires that a person accused of a crime is presumed innocent. The purpose of bail is to ensure that the person shows up to court and remains law abiding pending trial or other disposition of the case. The whole purpose reasonable bail is specifically textually guaranteed is because due process operates under the presumption of innocence for anyone accused of a criminal offense. The Eighth Amendment actually presumes bail and release, and prohibits the government from requiring “excessive bail.”
Manafort was widely reported to have a difficult time coming up with $10 million. That already seems excessive regardless of who is charged — in fact, sometimes $100 can be excessive if a person cannot afford it. Cash should not be the goal of bail. In a recent piece for Right on Crime’s criminal justice reform strides, Katie Greer writes, “Locking someone away simply because they can’t afford bail has proven counterproductive. While punishing someone before they’ve seen a fair trial is constitutionally questionable as is, spending hundreds or even thousands of dollars in response to a person’s bail debt is equally questionable. We should be more conscious of the financial consequences of pre-trial jail.”
And whatever may result at Manafort’s forthcoming trial or other negotiated disposition does not change the fact that merely communicating with potential witnesses is a very weak basis to deny bail that was already excessive.
Much of what the media often misses in these kinds of reports are that the criminal justice system should be fairly and equally applied to all people who go through it. There’s not a special “celebrity” or “high profile” bail schedule — Manafort and any other defendant have a constitutionally protected right against excessive bail and especially against denial of bail. Due process matters in our system because we are a nation under the rule of law, not the rule of politics, though this week America has seemed anything but that.
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is director of public policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.
