Judge Ellis is on the case

Tim Ellis was a young partner at the law firm I started with when I left the government in the early 1980s. I worked with him briefly on a pro bono matter. The matter wasn’t active long enough for me really to get to know Ellis, but there was no doubting his inquisitiveness, thoroughness, doggedness, and strong sense of justice.

I don’t think Ellis would have won any popularity contests among associates at the firm. Years after he left to become a federal judge, former colleagues were still telling Tim Ellis stories. Not all of the stories were flattering or told with affection. However, I’m pretty sure everyone who told them respected Ellis. It was hard not to.

I never appeared in Judge T.S. Ellis’ courtroom across the river in Alexandria, Virginia, but know many litigators who did. He wouldn’t have won any popularity contests among these attorneys either, but again, he was well respected.

On the bench, Ellis’ inquisitiveness, thoroughness, doggedness, and strong sense of justice were on display for all to see. He also favored lengthy, scholarly opinions on a court long known for brevity.

It seemed to me that Ellis was likely to end up on the U.S. Court of Appeals for the Fourth Circuit. He would have made a fine appellate judge, but the call never came.

Yesterday, Team Mueller appeared in Judge T.S. Ellis’ courtroom, the case against Paul Manafort having landed there. I would have paid admission to be present.

From the Reuters account:

A federal judge on Friday sharply criticized Special Counsel Robert Mueller’s criminal case in Virginia against President Trump’s former campaign manager, Paul Manafort, and openly questioned whether Mueller exceeded his prosecutorial powers by bringing it.

“I don’t see what relationship this indictment has with anything the special counsel is authorized to investigate,” U.S. District Judge T.S. Ellis III in the Eastern District of Virginia said.

At a tense hearing at the federal courthouse in Alexandria, Virginia, the judge said Mueller should not have “unfettered power” in his Russia probe and that the charges against Manafort did not arise from the investigation into Moscow’s alleged meddling in the 2016 U.S. election.

“It’s unlikely you’re going to persuade me the special counsel has unfettered power to do whatever he wants,” said Ellis. . . .

There was more:

During the oral arguments, Ellis repeatedly chided Mueller’s $10 million budget. He also asked whether [Rod] Rosenstein, who oversees the probe and is considered an important witness into whether Trump tried to obstruct justice, is recused from the case.

And he repeatedly claimed that the indictment appeared to serve as a way for Mueller to “assert leverage” over Manafort. “The vernacular,” he said “is to sing.”

Ellis was blunt, as always. “You don’t really care about Mr. Manafort’s bank fraud,” he told Dreeben. Rather, the prosecution is interested in Manafort because of his potential to provide material that would lead to Trump’s “prosecution or impeachment.”

Ellis clearly isn’t eager to be enlisted for this purpose. Though he did not issue a ruling on Manafort’s motion to dismiss the indictment, he did ask why a run-of-the-mill bank fraud case with no “reference to any Russian individual or Russian bank” could not be handed over to the U.S. Attorney’s Office in the Eastern District of Virginia.

As an example, he pointed to the FBI’s probe into Trump’s personal lawyer Michael Cohen. In that case, he noted, the special counsel turned that matter over to prosecutors in Manhattan.

Dreeben declined to discuss the Cohen case, but said that Mueller’s probe into Manafort was authorized by Rosenstein. No one who has worked with or litigated before Ellis would have been surprised by what happened next:

Ellis balked, saying Dreeben’s answer essentially means the Justice Department was “not really telling the truth” about the probe and invites someone to respond by saying, “Come on, man!”

Dreeben also stressed that Rosenstein wrote another memo two months later, in August 2017, explicitly granting Mueller the power to investigate Manafort’s Ukraine dealings years before the 2016 election.

Ellis complained that the bulk of that August memo he has received was highly redacted.

He directed Mueller’s office to take two weeks to consult with U.S. intelligence agencies to see if they will sign off so that he can personally review a sealed, unredacted version of the memo.

Dreeben told him the redacted portions did not pertain to the Manafort case.

“I’ll be the judge,” Ellis said.

James Freeman of the Wall Street Journal summarizes the situation this way:

The judge is not just searching for an explanation as to how the Manafort prosecution relates to Russia and the 2016 election. He also wants to know just how far the special counsel’s authority extends. Team Mueller doesn’t want to tell him.

After all these years, Ellis remains as inquisitive, thorough, dogged, and outraged by the hint of injustice as ever. It’s about time Team Mueller had to explain itself to someone like that.

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