WASHINGTON — The trial of former Obama White House counsel Gregory B. Craig was abruptly postponed Tuesday because potential jurors were selected through a process that inappropriately was closed to the public, a federal judge said.
U.S. District Judge Amy Berman Jackson of the District of Columbia said Craig’s trial on one count of lying to the Justice Department about his work for the Ukrainian government could begin Thursday, or more likely Friday, after a new panel of prospective jurors is called and screened in open court.
“It’s a little bit of a setback, but I think it’s going to delay us by only two to three days,” Jackson said after U.S. prosecutors overnight raised concerns about the juror selection process done Monday.
Craig, one of Washington’s most prominent attorneys, is charged in connection with his work for the Ukrainian government at the law firm Skadden, Arps, Slate, Meagher & Flom amid stepped-up government enforcement of the Foreign Agents Registration Act.
The once nearly dormant law has been invoked in more than 20 federal prosecutions aimed at combating foreign interference in U.S. politics, led by special counsel Robert Mueller’s probe of Russian meddling in the 2016 election.
Craig, 74, has pleaded not guilty to one count of making false statements to investigators in Washington. He is accused of lying and withholding information from Justice officials seeking to determine whether he was required to register as a foreign agent because of his alleged public relations work for his client.
Prosecutors and Craig’s defense expected to make opening statements Tuesday morning after winnowing a pool of about 70 District residents of potential jurors to the dozen needed for trial.
Jackson said that after breaking for the evening, the office of U.S. Attorney Jessie Liu alerted all parties that although no one objected at the time, the court may have violated Craig’s constitutional rights and the public’s access to judicial proceedings by excluding the public and news media as potential jurors were being screened by both sides and the judge.
Courtrooms in the federal court in Washington normally are open through interviewing of prospective jurors for potential conflicts such as travel schedules, health problems or familiarity with trial participants, with any private matters discussed out of public earshot at the judge’s bench.
Jackson said she closed the courtroom because she believed the usual process would have been too cumbersome, given the number of attorneys involved and the unusually large number of potential jurors called to hear a high-profile case.
“I did something I have never done before,” Jackson acknowledged, adding that although Craig’s defense team did not object, she should have had them “more actively involved” in the decision.
Craig attorney William Murphy acknowledged that his defense was “a little surprised” at what the government found “and we shouldn’t have been.”
On reflection, Murphy agreed the initial process “just doesn’t fly with the First and Sixth amendments” of the U.S. Constitution, which guarantee rights for the press and for criminal defendants to open proceedings.
Waiving Craig’s right to selecting his jury in public might allow him to appeal any conviction on grounds he’d had ineffective legal counsel, Murphy said.
Craig’s defense also belatedly objected to the court’s method of bringing in the potential pool after mailing notices to 1,000 eligible District residents to ask if recipients would be available for a two-to-three week trial in September.
Some jury pool members “were clever enough” to figure they were being called for Craig’s trial, Murphy said, raising concerns that people could be able to “self-select” whether to serve on his jury or not, instead of being drawn a random draw.
Lead prosecutor Assistant U.S. Attorney Fernando Campoamor-Sanchez asked for as brief a delay as possible, citing witness travel and availability.
Jackson agreed. She urged both sides to try the case in two weeks or less before the Labor Day holiday.
The foreign agents act, known as FARA, was enacted in 1938 in response to propaganda from Nazi-inspired groups in the United States. It requires Americans to publicly register with the attorney general when they are paid to influence U.S. policy for foreign governments, political parties or politicians.
Craig was the first prominent Democratic figure to be charged in a case spun off from Mueller’s office.
Craig, a party stalwart who was President Barack Obama’s first White House counsel and special counsel for his former Yale Law School classmate, President Bill Clinton, has denied lying to conceal information from the Justice Department’s FARA unit as it investigated work he did with GOP lobbyist Paul Manafort on behalf of the Ukrainian Justice Ministry in 2012.
Craig’s attorneys contend he was not acting under the control or direction of his clients when he reached out to reporters to discuss his law firm’s Ukraine work. Instead, they said, Craig was trying to correct misrepresentations about the work spread by Ukraine’s representatives that he opposed.