A federal judge on Friday asked pointed questions about special counsel Robert Mueller’s authority to bring charges against former Trump campaign chairman Paul Manafort and suggested that prosecutors’ true motive is getting Manafort to ‘sing’ against the president.
Manafort’s lawyers argued at a hearing in Alexandria that the tax and bank fraud charges are far afield from Mueller’s mandate to investigate Russian meddling in the 2016 election and whether any collusion occurred.
‘I don’t see what relationship this indictment has with what the special counsel is investigating,’ U.S. Senior Judge T.S. Ellis III, a Reagan appointee, told government lawyers at Friday’s hearing.
Tense hearing: Judge T.S. Ellis asked pointed questions of prosecutors as he suggested they were going after Paul Manafort solely to build a case against Trump
He’s after one thing: Judge T.S. Ellis suggested to prosecutors that they wanted Manafort to ‘sing’ so Robert Mueller could build a case for the prosecution or impeachment of the president
Critical: Judge T.S. Ellis, seen in a picture from www. law.com, asked a series of difficult questions of the prosecution, at one time saying: ‘Come on, man!’
The Virginia indictment alleges Manafort hid tens of millions of dollars he earned advising pro-Russia politicians in Ukraine from the Internal Revenue Service, all occurring years before Donald Trump ran for president.
Under questioning from Ellis, government lawyers admitted that Manafort had been under investigation for years in the Eastern District of Virginia before Mueller was ever appointed special counsel.
And Ellis said it was implausible to think that the charges against Manafort, which primarily concern his business dealings and tax returns from about 2005 through 2015, could have a real connection to Trump’s 2016 presidential campaign.
Ellis suggested the real reason Mueller is pursuing Manafort is to pressure him to ‘sing’ against Trump, though he also noted that such a strategy is a ‘time-honored practice’ for prosecutors and not necessarily illegal.
Ellis went on to say that defense lawyers are naturally concerned that defendants in that situation will not only sing but ‘compose’ – meaning that they’ll make up facts.
‘You really care about wanting information you could get from Mr. Manafort that would relate to Mr. Trump and lead to his prosecution, or impeachment, or whatever,’ Ellis said.
Government lawyer Michael Dreeben said the special counsel’s mandate is broad, and that Manafort fits within that jurisdiction because of his connections to both the Trump campaign and to Ukrainian and Russian officials.
Overseer: Rod Rosenstein, the deputy attorney general, is who Robert Mueller reports to
‘We needed to understand and explore those relationships and follow the money where it led,’ Dreeben said.
Dreeben also argued that the Justice Department has broad discretion to set its own rules for what should be designated to the special counsel’s jurisdiction, and that a judge has no role trying to regulate it.
‘We are the Justice Department,’ Dreeben said of the special counsel’s office. ‘We are not separate from the Justice Department.’
That argument provoked Ellis’ ire to an extent and prompted him to question the wisdom of granting unfettered power to a special counsel with a $10 million budget.
‘I’m sure you’re sensitive to the fact that the American people feel pretty strongly about no one having unfettered power,’ Ellis said.
He asked Dreeben whether the special counsel had already blown through its $10 million budget; Dreeben declined to answer.
Fox News reported that he pressed prosecutors on the source of their mandate to go after Manafort.
REAGAN-APPOINTED JUDGE JAILED THE AMERICAN TALIBAN
Judge J.S. – Thomas Selby – Ellis has been on the federal bench in Virginia since August 1987, after being nominated by President Ronald Reagan.
A Navy pilot in the early 1960s, he studied at Harvard Law and at Magadalen College, Oxford and was a commercial litigator before becoming a judge.
Until now his most high-profile case was the sentencing of John Walker Lindh – the young American man captured unexpectedly in Afghanistan by U.S. forces routing the Taliban after 9/11.
Lindh got 20 years in a plea deal which Ellis oversaw and is likely to be released next year.
The Mueller team is relying on a memo prepared by Rod Rosenstein, the deputy attorney general to whom the special counsel reports, which has been partly released but with significant redactions.
The prosecution told the judge that some of the scope of its powers, which date back to August 2017, cannot be released because of national security.
The judge offered a scathing response, characterizing their position as: ‘We said this was what [the] investigation was about, but we are not bound by it and we were lying.’
Then he quoted what he said was a football reference saying:’C’mon man!’
Manafort’s lawyer, Kevin Downing, has argued that a special counsel should be tightly constrained in how it operates. He noted that the law authorizing the special counsel was passed to replace the old independent counsel law, which was derided for allowing overbroad, yearslong investigations during the Reagan and Clinton administrations.
Downing has argued that the charges should be dismissed if Mueller lacked authority to bring them. Ellis, though, suggested another remedy would be to simply hand the case back to regular federal prosecutors.
Ellis withheld ruling on the motion and will issue a written ruling at a later date.
Manafort is also facing a broader indictment in the District of Columbia, where the special counsel has brought the bulk of charges. The tax charges against Manafort had to be brought in Virginia, though, for jurisdictional reasons.
Manafort’s lawyers made similar arguments seeking dismissal to the judge in the District. She has also not yet ruled on the motion.
The judge raising the memo may prove to be significant.
Rosenstein sent the memo, titled ‘The Scope of Investigation and Definition of Authority,’ to Mueller on August 2 of last year, less than three months after his public order appointing him, kicking off a probe that President Donald Trump has branded a witch hunt.
Two sentences in the document relate explicitly to Manafort – but that section is both preceded and succeeded by blacked out text.
A former Watergate prosecutor told DailyMail.com earlier this year that the first section may well refer to President Trump himself.
Prosecutors filed the memo in opposition to an effort by Manafort to have Mueller’s charges of money laundering and other crimes tossed out as an overreach of Mueller’s original mandate.
On its second page, the heavily redacted memo lists areas that are ‘within the scope of the Investigation at the time of your appointment.’
It then lists allegations that Manafort ‘committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law.’
The collusion allegation by Trump’s former campaign chair – which would constitute a bombshell charge if it were ever brought forward – constitutes just a single one-sentence paragraph of the four-page memo.
Another allegation – alleged crimes out of payments Manafort received from the government of former Ukrainian President Viktor Yanukovych,’ also constitutes just a single paragraph.
Based on the blacked material, ‘It’s fair to infer from this that there are other investigations – some of which may not even be public at this point,’ said former Watergate prosector Nick Akerman of Dorsey & Whitney, LLP.
‘The only reason they’re releasing this part of it is just to show that Mueller is totally within his authority on this. It’s a slam dunk,’ he said.
As for the paragraph before Mueller, he said: ‘Maybe that’s the allegations relating to Donald J. Trump, I don’t know. Why wouldn’t it be? That gives him a quarter of a page’ – the same amount of space given to Manafort.
The charge about Ukrainian payments also appears to indicate that financial activities before the election by someone being examined as part of the Russia investigation are fair game for investigation – something that could apply to the financial background of others in Trump’s orbit who are under scrutiny.
That unredacted portion is followed by text that is entirely blacked out that is three times as long as the now-public Manafort material.
Manafort is identified by both his first and last name on Page Two, indicating this is likely the first reference to him in the document.
That section is preceded by another portion, also blacked out, of equal length – indicating that the information on the scope of the probe could refer to a different person specifically marked for investigation.
‘What you would find in these other things would be other investigations that cover at least a full page or more,’ said Akerman. ‘They’re covering their bases and making sure that they’re following the regulations totally to a tee which they are doing which means that Manafort’s motion is completely frivolous,’ he said.
Other areas of investigation that might have been codified could be the hack of Democratic National Committee emails, discussions of Russia sanctions, or any manner of people who have come under Mueller’s focus, from longtime Trump associate Roger Stone to Trump son-in-law Jared Kushner, who both have been reported to be of interest to Mueller’s investigators.
It is impossible to tell from the redacted version of the document filed with the court.
In addition to whatever approval was provided by Rosenstein, who has oversight of the probe due to Attorney Jeff Sessions’ recusal, the memo provides a way for Mueller to probe ‘additional matters that otherwise may have arisen or may arise directly from the Investigation.’
In that case, Rosenstein asks that he consult his office at DOJ for a determination of whether it is within the scope of his authority.