Prosecutors try to cut out part of Manafort's tax defense

Generally, both prosecutors and defense during a trial can attempt to curtail the opposite sides' arguments by asking the judge to decide whether he will allow certain types of evidence to be presented to the jury.

In his opening statement Tuesday, defense lawyer Tom Zehnle told the jury they should expect to hear how Manafort never faced a federal inquiry about his taxes, making it suspicious that prosecutors brought this case.

Special counsel Robert Mueller's team, however, said in a court filing after midnight Thursday morning that the point about whether Manafort faced an inquiry about his taxes shouldn't matter. An IRS audit is a civil procedure and not part of the criminal inquiry, prosecutors say.

Manafort is currently fighting in court charges of 18 financial crimes, including submitting false income tax returns to the IRS.

Manafort's "argument that a civil audit should have been conducted and the fact that one was not creates a substantial risk of misleading the jury, prejudicing the government, and inviting jury nullification," prosecutor Van Grack wrote, referring to the outcome in which jurors believe a defendant committed crimes but vote not to convict because they believe the person was not fairly prosecuted.

In his opening statement to the jury, Zehnle criticized what he said was the government's "rush to judgment" in the case.

"You're going to learn that Mr. Manafort was never audited by the IRS, nor were any of his companies. So as you consider this, as you hear all the evidence come in, the documents and the testimony, you might ask yourself whether the government knew enough to initiate the audit. Did they have enough evidence?" Zehnle said.

It's likely on Thursday that Judge T.S. Ellis will address this issue during the trial proceedings without the jury in the room.

Ellis has already decided one other argument from Manafort's team out of trial. The defense lawyers are not allowed to suggest to the jury that an earlier federal investigation that started before the special counsel's office formed ended with a decision not to prosecute Manafort.