“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 raised concerns overnight about the juror selection process done Monday.
Craig, one of Washington’s most prominent lawyers, 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 law, once nearly dormant, has been invoked in more than 20 federal prosecutions aimed at combating foreign interference in U.S. politics, led by special counsel Robert S. Mueller III’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 Department 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 attorneys expected to make opening statements Tuesday morning after winnowing a pool of about 70 District residents to the dozen jurors needed for trial.
Jackson said that after the court broke for the evening, the office of U.S. Attorney Jessie K. 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.
Federal courtrooms in Washington normally are open during the 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 that 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 the lawyers “more actively involved” in the decision.
Craig attorney William J. Murphy acknowledged that the defense was “a little surprised” at what the government found, “and we shouldn’t have been.”
On reflection, Murphy agreed that the initial process “just doesn’t fly with the First and Sixth amendments” of the Constitution, which guarantee rights for the press and for criminal defendants to open proceedings.
Waiving Craig’s right to select 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 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 out that 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, instead of being drawn at random.
The 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 that 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.