Senior United States District Judge T.S. Ellis III has been assigned one of the pending criminal cases — the one transferred to the Eastern District of Virginia — brought by the Special Counsel against Paul Manafort. In a hearing on the motion brought by Manafort to dismiss the charges as beyond the authority of the Special Counsel, Judge Ellis unloaded. As James Freeman puts it in his Best of the Web column this afternoon, Judge Ellis “is old enough to remember when Justice Department special counsel Robert Mueller’s investigation was about alleged Russian collusion. Now the judge wants to know why Mr. Mueller’s signature prosecution doesn’t appear to have anything to do with it.” FOX News reports on the hearing here, Reuters here, Bloomberg here, Politico here, CNN here.
The case before Judge Ellis consists of tax and bank fraud charges that not only have nothing to do with alleged Russian collusion, but also predate the 2016 presidential campaign by a decade. It turns they have also previously been under investigation by the United States Attorney for the District, though not brought until they turned out to be of use to Mueller.
“I don’t see what relationship this indictment has with anything the special counsel is authorized to investigate,” Judge Ellis said. He decried Mueller’s apparently “unfettered power.” He did not find the power to prosecute Flynn in the May 2017 appointment order, which directed him to pursue links between Russia and the Trump campaign, as well as “any matter that arose or may arise directly” from the investigation. He said that Mueller improperly took over existing Justice Department investigations into Manafort without adequately explaining what connection it had to the Russia probe.
Freeman derives this observation from the news reports” “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.”
Judge Ellis doesn’t find what he’s looking for in the May 2017 memo by Deputy Attorney General Rosenstein. Team Mueller was represented at the hearing by former deputy solicitor general Michael Dreeben. At the hearing Dreeben took a drubbing. Asserting that Mueller’s authority is even broader than the mandate given 2017 memo, Dreeben claimed that national security precluded a full accounting of Mueller’s authority.
Dreeben cited Rosenstein’s August 2017 memo — covered by Andrew McCarthy in this NR column — explicitly granting Mueller the authority to investigate Manafort’s Ukraine dealings years before the 2016 election.
Mueller must have given Judge Ellis the same highly redacted copy of the August 2017 memo that is linked above. Judge Ellis wanted to see the whole thing. He gave Mueller two weeks to consult with intelligence agencies to determine whether they can confide a sealed, unredacted version of the memo with him.
Dreeben told him the redacted portions did not pertain to the Manafort case. “I’ll be the judge,” Ellis said.
CNN quotes Judge Ellis: “You don’t really care about Mr. Manafort’s bank fraud.” Judge Ellis demonstrated his grasp of what I’ve been calling the Mueller Switch Project. He said prosecutors were interested in Manafort only because of his potential to provide material that would lead to President Trump’s “prosecution or impeachment.”
I don’t know where we’re going here, but I’m enjoying the ride. I am immensely gratified to find a responsible judge giving voice to his revulsion over the production engineered by James Comey, Rod Rosenstein, and Robert Mueller.
Judge Ellis was appointed to the bench by President Reagan in 1987. He reminds us in his own way of the importance of President Trump appointing judges to current judicial vacancies and gutting out the Democrats’ obstruction of judicial appointees as quickly as possible.