Richard Pollock, DCNF
Federal Judge T.S. Ellis III, a Reagan appointee, could be the ultimate nightmare for Special Counsel Robert Mueller, who may lose his legal case against Paul Manafort, according to an extraordinary May 4 exchange in the U.S. District Court for Eastern Virginia.
A dismissal could be a major wrecking ball to Mueller’s overall case in his Russian collusion case against President Donald Trump.
Amid Friday’s legal event, Ellis was best known for invoking an NFL term to dismiss Mueller’s legal posture, saying “C’mon man!” as he challenged the special counsel’s attempt to drag an unrelated bank fraud case back in 2005 to indict Manafort. Those charges are well beyond Mueller’s original mandate to investigate alleged collusion with Russia in 2016 and had to be dismissed, the judge said, according to the hearing transcript.
“If I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump,” he lectured Michael Dreebeen, Mueller’s lawyer in the court room. “So I don’t see what relation this indictment has with anything the special prosecutor is authorized to investigate.”
The federal judge also was enraged that Mueller redacted 75 percent of an August 2017 order from Deputy Attorney General Rod Rosenstein, which further outlined the special counsel’s mandate, according to the transcript. Ellis has handled numerous espionage cases and enjoys among the highest level government clearances, the judge reminded the government’s lawyer.
The judge slammed the special counsel, saying he understood his real intention was “to exert leverage on a defendant so that the defendant will turn and provide information on what is really the focus of the special prosecutor,” namely President Trump.
Dreeben replied, their “investigatory scope” permitted them to include wrongs committed a decade before Trump declared his candidacy for president.
Ellis shot back: “My question to you was, how does bank fraud and these other things that go back to 2005, 2007, how does that have anything to do with links and/or coordination between the Russian government and individuals associated with the campaign of Trump?”
The original May 2017 order setting up the special counsel’s office by Rosenstein permitted them to go after crimes beyond Russian collusion, Dreeben replied. “We are not limited in our prosecution authority to crimes that would fit within the precise description that was issued in this public order,” he told Ellis.
Ellis cut to the chase and told the special counsel their intention was really to get Mueller to “sing” to get Trump. “I’ve been here a long time. The vernacular is to sing,” he said.
Ellis admonished the special counsel, saying he was seeking “unfettered power” — something the founding fathers fought against. “What we don’t want in this country is we don’t want anyone with unfettered power,” Ellis stated. “So it’s unlikely you’re going to persuade me that the special prosecutor has unlimited powers to do anything he or she wants,” the judge said.
Dreeben said Mueller is following both the May and August 2017 orders from Rosenstein, who oversees Mueller. But Ellis shot back that the order he was given had 75 percent of the August memo was redacted.
“I have that right here, and I’m glad you raised it because 75 percent of it is blocked out, redacted. Why don’t I have a full copy it,” Ellis asked.
“The only paragraphs that are to Mr. Manafort are the ones that are pertinent are the ones contained
in this record,” Dreeben replied.
“Well, let me use a phrase that I’m fond of that I used to use with my children,” the judge said, dripping with sarcasm. “I can’t use it with my wife, but I’ll be the judge of whether it relates to the others.”
Dreeben would consult with the intelligence community to see if the rest of the classified memo could be shared with the judge, he said.
“Yes, of course, you may do that,” Judge Ellis replied. “If any part of it is classified, it won’t surprise you to know that a district judge is fully cleared. In fact, I have several espionage trials underway,” he told the Mueller attorney.
Following that exchange, Ellis didn’t mince words with Dreeben as he laid into Mueller’s attorney. “You don’t really care about Mr. Manafort’s bank fraud,” he said. “You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.”
In the end, Ellis asked Dreeben if he had anything to add.
“No thank you, Your Honor,” he said.
“Good choice on your part,” an angry Ellis replied. “Thank you for your arguments,” he told Dreeben. “They were entertaining.”
The court resumes in two weeks.
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