Manafort’s Judge Blasts Special Counsel Practices

On Tuesday, Judge T.S. Ellis of the Eastern District of Virginia denied Paul Manafort’s motion to dismiss the criminal charges that have been brought against him by special counsel Robert Mueller. Simply put, Manafort’s argument was that the charges against him–essentially, tax evasion with regard to millions of dollars he received from the Ukraine government–long preceded, and had nothing to do with, the supposed subject of Mueller’s investigation, alleged collusion between the Trump campaign and the Russian government.

While acknowledging that the charges “on their face, appear unrelated to the 2016 Presidential election,” Judge Ellis provided a reasonably persuasive explanation of why they nevertheless fall within Mueller’s broad mandate. More interesting than Judge Ellis’s ruling on Manafort’s motion were his comments on special counsels in general, and Mueller’s operation in particular.

You can read Ellis’s opinion here. It gives a good overview of the history of the special prosecutor/special counsel laws as they have evolved and been applied over the years. Suffice it to say that Judge Ellis is a skeptic.

His opinion includes this:

[T]o provide a Special Counsel with a large budget and to tell him or her to find crimes allows a Special Counsel to pursue his or her targets without the usual time and budget constraints facing ordinary prosecutors, encouraging substantial elements of the public to conclude that the Special Counsel is being deployed as a political weapon. Furthermore, although the regulations require the Attorney General to provide a Special Counsel with a factual statement of the matters to be investigated, notably missing from the regulation is any requirement that the Attorney General specify any particular crime or statutes that are believed to have been violated. The failure to specify to the Special Counsel the types of crimes and statutes involved contributes to the public perception that appointment of a Special Counsel is wielded as a political weapon, not as a tool for prosecuting specific crimes believed to have been committed by high-ranking officials as to which the DOJ has a conflict.

In a footnote, Judge Ellis commented on Mueller’s investigation in particular:

Given the investigation’s focus on President Trump’s campaign, even a blind person can see that the true target of the Special Counsel’s investigation is President Trump, not defendant, and that defendant’s prosecution is part of that larger plan. Specifically, the charges against defendant are intended to induce defendant to cooperate with the Special Counsel by providing evidence against the President or other members of the campaign. Although these kinds of high-pressure prosecutorial tactics are neither uncommon nor illegal, they are distasteful.

This is the conclusion of Ellis’s opinion:

In sum, dismissal of the Superseding Indictment on the grounds urged by defendant is not warranted here. But that conclusion should not be read as approval of the practice of appointing Special Counsel to prosecute cases of alleged high-level misconduct. Here, we have a prosecution of a campaign official, not a government official, for acts that occurred well before the Presidential election. To be sure, it is plausible, indeed ultimately persuasive here, to argue that the investigation and prosecution has some relevance to the election which occurred months if not years after the alleged misconduct. But in the end, that fact does not warrant dismissal of the Superseding Indictment. The Constitution’s system of checks and balances, reflected to some extent in the regulations at issue, are designed to ensure that no single individual or branch of government has plenary or absolute power. The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance. This case is a reminder that ultimately, our system of checks and balances and limitations on each branch’s powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the law. Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people. Although this case will continue, those involved should be sensitive to the danger unleashed when political disagreements are transformed into partisan prosecutions.

Are Rod Rosenstein and Bob Mueller “people of virtue, sensitivity, and courage, not affected by the winds of public opinion”? I don’t think so, and I suspect Judge Ellis doesn’t, either.

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