The trial of Paul Manafort, which is scheduled to begin tomorrow, is a good illustration of an important value of trials.
A decade ago, there was a flurry of academic activity following the publication of Prof. Marc Galanter’s detailed 2004 study entitled, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, which documented declining trial rates in recent decades.
Some of the discussion questioned whether ADR was to blame for declining trial rates.
I thought that this blaming framing in some commentary was problematic because it implied that the reduction of the trial rate necessarily was a bad thing and that ADR was the likely culprit in the crime. (Marc’s article provided a responsible perspective about this and discounted the idea that the declining trial rates were caused by ADR.)
Everyone agrees that some but not all cases should be tried. In this article, I wrote
There should be no doubt that having trials produces considerable social benefit. As a policy matter, however, the question is not whether to have trials. Rather, policy issues focus on such matters as whether to have more or fewer trials, what kinds of cases and litigants should get to trial, who should make those decisions, how to design litigation and trial procedures to maximize the benefits and minimize the problems, etc.
I considered various functions that trials can perform and I noted that they sometimes perform the invaluable function of publicizing important facts.
Trials certainly can perform important social functions of publicizing facts, developing common law rules and precedents, and producing judgments that promote institutional transformation. Galanter writes, “[t]he trial is a site of ‘deep accountability’ where facts are exposed and responsibility assessed, a place where the ordinary politics of personal interaction are suspended, the fictions that shield us from embarrassment and moral judgment are stripped away.” Trials also can satisfy the public interest in providing opportunities for checks on government power, catharsis in dealing with events of public significance, and demonstration that the system of justice works.
This is precisely the potential of the Manafort trials.
The Manafort Trials
Ms. Sharon LaFraniere and Ms. Emily Baumgaertner of the New York Times provided a very useful preview of the trial which is about to begin as well as the trial against Manafort scheduled for September.
The wide range of issues encompassed by the Mueller investigation certainly are of the highest public importance and it’s particularly appropriate for the Manafort trials to provide the kind of public education and accountability that Marc describes.
Prosecutors have disclosed some information in court filings and made plea bargains with some defendants, but these actions do not produce the public education or accountability that occurs in a full public trial. Indeed, Mr. Manafort could plead guilty before the trial begins. While that may be appropriate from the prosecution’s perspective, it would deprive people of the benefits of a public trial.
In general, criminal prosecutions should focus primarily on prosecution of alleged crimes. While publicizing important facts is an important by-product of criminal trials, there are other institutions whose top priorities should be to conduct public investigations of serious wrongdoing for the purpose of public education.
First among them should be Congress. Under our system of checks and balances, Congress has a critical role in investigating major public issues. For example, the Watergate and Iran-Contra hearings educated the public about these scandals. Unfortunately, sometimes Congress abuses its authority and conducts partisan witch-hunts as in the McCarthy and Benghazi hearings.
Unfortunately, Congress has been unwilling to perform this vital public education function. It has held few or no public hearings explaining what happened. Moreover, the majority of the House Intelligence Committee actually disseminated false information, as evidenced by the recent release of a FISA warrant.
Educating people about matters of public importance is the highest priority of the news media. The mainstream media generally have been doing an impressive job of investigating and reporting important facts related to the Mueller investigation.
So far, however, the reporting has been hobbled because many of the key facts have not been publicly disclosed due to pending or potential legal proceedings. So we know only bits and pieces of information that have been leaked out, presumably released for strategic reasons. Unfortunately, the media environment has been polluted by domestic and international propaganda campaigns. So we don’t have a fair and accurate understanding of the facts.
The Manafort trials should provide a first real opportunity to get a thorough public airing of important issues in the Mueller investigation. Under our adversary system, both the prosecution and defense will present their evidence and interpretations of the facts. Whatever the outcome, the public will benefit by getting a more complete understanding of some of the issues that Mr. Mueller is investigating.
If the Democrats win control of at least one house of Congress in the upcoming elections, presumably they will conduct more thorough public investigations next year. However, if the Republicans maintain control of Congress, we will especially need to rely on trials in the Mueller investigation to serve this critically important public interest.
In my last comment, I referred to the problematic behavior of the judge in the Manafort trial. Here’s an article with a more elaborate discussion of the problem, The extraordinary bias of the judge in the Manafort trial, by Nancy Gertner, a retired U.S. District Court judge in Massachusetts and lecturer at Harvard Law School.
I have been following the daily blogs of the Manafort trial in the Washington Post, which have been fascinating in describing how the trial actually worked – as well as key facts about this important case, as I mentioned in my original post.
The trial also has displayed how decisions are made by judges, who sometimes are problematic. The New York Times published this article, Judge in Manafort Trial Is a ‘Caesar’ in His Own Rome, describing the judge’s sometimes tyrannical ways. One of the reasons that people settle cases is so that they can protect themselves from the unpredictable whims of some judges.
This morning, in response to a motion by the prosecution, the judge half-heartedly apologized for scolding prosecutors for having an expert witness attend the trial – after the judge explicitly permitted them to do so. The judge said that he hadn’t read the transcript of his statement proving that he had been wrong to chew out the prosecutors but said only that he “was probably wrong.” This is hardly the kind of apology that people generally consider convincing.
Throughout the trial, the judge repeatedly badgered the prosecutors, sometimes seemingly without good cause. He also seemed to make prejudicial comments in the presence of the jury. It’s really hard to know without attending or reading the transcript. But here’s a very troubling statement by the judge.
Despite the president’s desire that the special counsel’s investigation and prosecution cease forthwith, the Manafort trial proceeds.
The Washington Post has posted a wonderful daily live blog of the trial which provides a detailed summary of the proceedings (including background information) that you can digest pretty quickly.
Here’s the blog of the third day of the trial.
Here’s a blog of the second day of the Manafort trial.
For some strange reason, the system didn’t send an email to subscribers with a link to my post, In Praise of a Trial. So I want to let you know about it in case you missed it.
It uses the example of the Paul Manafort trial to illustrate the public education function of some trials. This is particularly important because of the failure of Congress to conduct appropriate oversight.
I just read this live blogging of the first day of the trial, which demonstrates my point about public education. You have to start at the end and read up.