LAKSHMI SINGH, HOST:
We're going to start the program with the trial of President Trump's former campaign chairman, Paul Manafort, on charges of bank and tax fraud. Yesterday, proceedings took an unexpected turn.
SETH WAXMAN: I will tell you, as a former federal prosecutor, once you get two-thirds of the way through your case and months of preparation, your heart sinks when you have these kind of conferences at the bench.
SINGH: That's Seth Waxman, an attorney now in private practice. He was referring to the lengthy delays caused by hours of consultations with the judge and attorneys for both sides. I asked Waxman what might explain the hiccup in the proceedings.
WAXMAN: This is a bit of speculation, but it seemed to me, based on the instructions the judge gave to the jury, is that maybe one of the jurors had talked to someone in a hallway or received information from someone outside - in other words, not followed the judge's instructions by refusing to discuss the case and keeping an open mind. So that will happen on occasion in cases. So the judge did what he was supposed to do - instructed the jurors to not discuss the case with anyone and to keep an open mind, that the presumption of innocence continues, and, until the government proves the case beyond a reasonable doubt, that presumption of innocence stays.
SINGH: Throughout this trial, we have seen Judge T.S. Ellis pretty much berate prosecutors repeatedly. Do you think that his remarks could sway the jury against the prosecution by doing that?
WAXMAN: Yeah. I mean, it's unfortunate that Judge Ellis is injecting himself into the trial in this way. And, for the most part, jurors will ultimately not be swayed by such events. They do look to the judge as the person kind of in control of the courtroom, and they do follow his lead very often. But it's in my experience that only at the point in time where a judge makes comments that give the impression that the prosecutors are playing unfair or doing things under the table - and, if it ever got to that point, then that's when you really start to lose a jury as a government prosecutor.
So it doesn't, in my opinion, seem to have reached that level. The government did ask the judge to explain to the jurors that he got something wrong, and, to his credit, he did give that instruction. And, in fact, when that happens, a jury can start to empathize a bit with the prosecutors and give them the benefit of the doubt. So, if they play it well, the prosecutors - while they've taken a lot on their chin, it could ultimately work to their favor in some ways.
SINGH: So what should we look for when the defense presents its case next week?
WAXMAN: Well, of course, the biggest question that arises is always is whether the defendant is going to take the stand and testify on his own behalf. I think that is fairly unlikely in this case. There's just such a hard-written record with documents that would be very difficult for the defendant to explain away. So I don't see that happening. And so I think the case may have a couple of their investigators who may have talked to a witness or two. You know, this may not be a very long defense case at all.
SINGH: Before we let you go, I wanted to ask about another case in the Mueller investigation. An associate of Roger Stone, President Trump's longtime confidant, failed to show up for a grand jury appearance yesterday. And the judge found this Stone associate, Andrew Miller, in contempt. What do you think is behind this?
WAXMAN: Well, there's either one of two things happening. And they are, either the government's hit pay dirt with Mr. Miller - and when a witness refuses to go on the grand jury, that makes prosecutors think he has a whole lot of important stuff, if he's willing to take on a contempt charge. So, in normal circumstances, if I were the prosecutor, I'd be pretty excited that I might be on to something.
But, in this particular case, Mr. Miller is also backed kind of by conservative think tanks, and that's who's funding his legal defense. So Mr. Miller may be just a pawn in a bigger play here by this conservative think tank to try to challenge the Mueller prosecution or investigation as a whole, and that's why they've said that Mr. Miller wanted to plead contempt - so it could be appealed to the D.C. Circuit, which is the appellate court, and then, in fact, if they were to lose there, go to the Supreme Court.
SINGH: Is there any merit to this?
WAXMAN: Well, they can file that legal challenge, no question, and they have the right to appeal it. So, in my opinion, this is a very, very large uphill battle for Mr. Miller's attorneys on this particular theory. And also, the Supreme Court doesn't take a lot of cases. If Mr. Trump were to refuse a grand jury subpoena from Mr. Mueller's office, I think that would end up in the Supreme Court no doubt. Whether the Supreme Court would take something like this on or just allow the D.C. Circuit ruling to stand is something we don't know. But this may not be a case that actually reaches the Supreme Court.
SINGH: That was former federal prosecutor Seth Waxman, a partner at Dickinson Wright.
Mr. Waxman, thank you for joining us.
WAXMAN: Thank you for having me. Transcript provided by NPR, Copyright NPR.