A federal judge sharply criticized the special-counsel prosecution of Paul Manafort in court this afternoon, accusing Robert Mueller’s team of attempting to unseat the president by proxy. Judge T.S. Ellis told prosecutors that “you don’t really care about Mr. Manafort’s bank fraud,” and questioned whether Mueller had gone beyond his jurisdiction in bringing the case:
A federal judge expressed deep skepticism Friday in the bank fraud case brought by special counsel Robert Mueller’s office against former Trump campaign chairman Paul Manafort, at one point saying he believes that Mueller’s motivation is to oust President Donald Trump from office.
“You don’t really care about Mr. Manafort’s bank fraud,” District Judge T.S. Ellis said to prosecutor Michael Dreeben, at times losing his temper. Ellis said prosecutors were interested in Manafort because of his potential to provide material that would lead to Trump’s “prosecution or impeachment,” Ellis said.
“That’s what you’re really interested in,” said Ellis, who was appointed by President Ronald Reagan. He repeated his suspicion several times in the hour-long court hearing.
This might revive an issue that Manafort had lost last month. Judge Amy Berman Jackson had dismissed a civil suit over the issue of Mueller’s jurisdiction, but pointedly not on the merits of the complaint. “A civil case is not the appropriate vehicle for taking issue with what a prosecutor has done in the past or where he might be headed in the future,” Berman Jackson ruled in dismissing the lawsuit, which puts the issue squarely on Ellis’ plate.
Ellis notes that the evidence gathered on Manafort has nothing to do with the special counsel probe, and that the Department of Justice had most of it before they began investigating the 2016 Trump campaign. Shouldn’t this have been handled by a US Attorney rather than the special counsel, Ellis asked:
— Steve Herman (@W7VOA) May 4, 2018
Ellis accused special prosecutors essentially of extorting testimony from Manafort. However, Ellis stopped short of tossing the case out of court:
Judge T.S. Ellis III suggested the real reason Mueller is pursuing Manafort is to pressure him to “sing” against Trump.
Ellis withheld ruling on dismissal of the indictment.
Ellis says he will consider his judgment after reviewing the Rod Rosenstein memo under seal, assessing whether Mueller has jurisdiction over this case. That may not be enough to convince Ellis, at least considering the breadth of his remarks from the bench. Jurisdiction is one thing, but malicious prosecution — which Ellis seems to be accusing Mueller of doing — can occur within proper jurisdiction, too. And a judge can certainly dismiss charges under those circumstances.
If Ellis tosses out the indictment, it might cripple the overall investigation, assuming that it doesn’t get reinstated on appeal. Mueller has gotten a lot of support based on his history of personal integrity even as the expanding scope of his investigation has raised questions. If a judge throws out the one substantial and serviceable indictment he’s produced over ethical questions, it will undermine Mueller’s reputation and that of his investigation, perhaps fatally in terms of prompting congressional intervention against Donald Trump. Even a reversal from an appellate court might not cure the political damage that a dismissal might create.
Update: Bear in mind, too, that this still doesn’t mean that Manafort’s off the hook. Even if Ellis dismisses these charges with prejudice, some of these charges could get refiled by state prosecutors. One of the more curious aspects of the Manafort case was why the DoJ didn’t prosecute him in 2014, when they had nearly all of the components of the case except for a few process crimes allegedly committed during this investigation. At the time, BuzzFeed reported in February, he was considered too small a fish:
In the summer of 2014, an FBI special agent questioned Manafort at his attorney’s office in Washington, DC. Manafort denied knowing anything about money reportedly stolen by the Yanukovych government, according to internal FBI emails reviewed by BuzzFeed News, and promised to turn over documents to the Bureau. He never did, according to the two officials.
“We had him in 2014,” one of the former officials said. “In hindsight, we could have nailed him then.”
The FBI’s top brass, both of the former officials said, deemed Manafort’s suspected financial crimes as too petty: They amounted to only tens of millions of dollars — small potatoes compared to what Manafort’s boss, Yanukovych, was suspected of stealing.
Mueller is cleaning up the DoJ’s fumble, but that doesn’t fall within his mandate. Or at least it shouldn’t, since those crimes had nothing to do with the 2016 campaign. If the DoJ wanted to reinvestigate Manafort, it should have done so on its own.
Update: The Washington Post provides some background to the drama:
The longtime lobbyist has argued that Deputy Attorney General Rod J. Rosenstein overstepped, giving the special counsel’s office a “blank check” to go after Manafort for conduct the Justice Department was investigating as early as 2014.
The charges are a “potpourri of purported misdeeds that have nothing to do with alleged coordination between the Trump campaign and the Russian government,” defense attorneys Kevin Downing and Thomas E. Zehnle wrote in a court filing earlier this month.
Prosecutors countered in their own filing that an investigation into possible collusion between the Trump campaign and the Russian government “would naturally cover ties that a former Trump campaign manager had to Russian-associated political operatives, Russian-backed politicians, and Russian oligarchs.”
Manafort’s defense attorneys have filed similar arguments in his DC circuit court trial, which is hearing charges of money laundering and the process crimes related to the investigation. We’ll see how far that gets.
Update: One more thought on Ellis’ upcoming decision. He could dismiss the charges without prejudice, which would allow the US Attorney to pick up the case. Presumably, that would fall into the lap of Tracy Doherty-McCormick, appointed by Donald Trump after serving as the First Assistant US Attorney appointed by Barack Obama.