Federal Judges Rebuke Mueller as Investigation Goes Off Rails

“You don’t really care about Mr. Manafort’s bank fraud … What you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.” – Judge Ellis

On Friday, Robert Mueller’s attack strategy was laid bare by a federal judge who gave the special counsel legal team a warning about unchecked power.  U.S. District Judge T.S. Ellis III's courtroom in Alexandria, Virginia was the scene for a hearing to rule on a request by Paul Manafort to have some of the charges and evidence against him dismissed.  Manafort’s legal argument is, in part, that Mr. Mueller’s grant of power from the Department of Justice is impermissibly broad and that Mr. Mueller violated even that wide grant with at least some of the charges against Manafort.  Judge Ellis, a Reagan appointee, was openly skeptical of prosecutor Mueller’s motivations and authority in this case as the quote above demonstrates.

It appears the Judge shares the opinion of so many others that Mueller’s actions in bringing the decade-plus old charges of bank fraud, tax evasion and failing to report overseas bank accounts are nothing more than an attempt to apply leverage to Mr. Manafort to pressure him to produce unfavorable evidence against President Trump.  After noting that no mention of Russia or Russians were present in the charges or evidence against Mr. Manafort in his court, Micheal Dreeben, a DOJ lawyer arguing for Mr. Mueller claimed the charges were contained in the scope of their investigation. “’It covers bank fraud in 2005 and 2007?’ Ellis replied incredulously, in just one of several instances where the judge snapped at the longtime prosecutor,”  Politico reports.

The Unprofessionals

Mueller’s lawyers were taken to task a number of times by Judge Ellis, earning criticism, not just for their legal arguments, but were challenged on demeanor and courtroom etiquette, for nodding and shaking their heads.

At another point, when Dreeben seemed to be taking too long to address the judge’s point about pressuring Manafort, Ellis interrupted and raised his voice.

“I asked you, where am I wrong about that?” the judge said sternly.

At another juncture, Ellis chastised some of Mueller’s lawyers for nodding while at the counsel table. "Don't nod or shake your head," he told them, adding later, "Don't worry about it. It's not a big deal."

Judge Ellis wanted to know why the case of Mr. Cohen was transferred to New York for prosecution, but that this case stayed with special prosecutors’ office.   He wondered openly if the referral to New York of those charges, were because they couldn’t be used to further their core effort “which is to get Trump.”

A rough day for the DOJ lawyers concluded with a prediction:

"What we don't want in this country, we don't want anyone with unfettered power," the judge said. "It's unlikely you're going to persuade me the special counsel has unlimited powers to do anything he or she wants."

All Good for Trump

President Trump celebrated the news in his speech to the NRA convention in Texas on Saturday:

“We have the best employment numbers we’ve virtually ever had, yet all we hear about is this phony Russia witch hunt,” Trump said. “Let me tell you, folks, we are all fighting battles, but I love fighting these battles. It’s really a disgrace.”

Famed Harvard Law Professor and Civil Libertarian, Alan Dershowitz, wrote approvingly of Judge Ellis proclaiming:

[I]t was an excellent week for the Constitution and for all Americans because a federal judge made it clear that no one — not even the special counsel — is above the law and beyond scrutiny by our system of checks and balances.

President Trump had another bit of good news from the federal courts when, on Saturday, his own appointee to the federal bench, U.S. District Court Judge Dabney Friedrich, denied a request to delay a hearing in the case of the indictments Mueller brought against 13 Russians and three Russian companies.  That indictment was widely seen as a publicity move to drive the collusion narrative, and not a genuine attempt to prosecute for crimes.  Andrew McCarthy at the National Review has covered this case well:

One of those Russian businesses… have told Mueller [it] is ready to have its trial — and by the way, let’s see all the discovery the law requires you to disclose, including all the evidence you say supports the extravagant allegations in the indictment.

Needless to say, Mueller’s team is not happy about this development since this is not a case they figured on having to prosecute to anything more than a successful press conference. So, they have sought delay on the astonishing ground that the defendant has not been properly served — notwithstanding that the defendant has shown up in court and asked to be arraigned.

Mueller’s attempts to delay the arraignment border on the preposterous.  His team argues that Concord Management, one of the indicted firms, was not properly notified of the charges against them.  Often individuals and corporations will argue they have not been properly served or notified of charges and should not have to stand and answer for them.   Prosecutors, as a rule, do not argue that they did not properly serve a defendant who is present in court.  Prosecutors, as a rule, do not typically seek to derail or delay their own prosecutions.  This, however, is no ordinary prosecutor, and no ordinary prosecution.  The hearing is scheduled for Wednesday.