On Friday, district court judge T.S. Ellis heard arguments in a Virginia federal court in one of the two criminal cases Special Counsel Robert Mueller’s office has brought against Paul Manafort, the former Donald Trump campaign chairman. Claiming that Mueller exceeded his authority in charging Manafort with multiple counts of tax evasion, bank fraud, and failing to report foreign bank accounts—all unrelated to Mueller’s investigation into Russian interference with the 2016 election—Manafort’s attorneys argued Ellis should dismiss the criminal charges.
Manafort’s motion to dismiss represents his third attempt to challenge the special counsel’s authority to prosecute him for crimes unrelated to the Russia investigation. Last month, Manafort’s attorneys filed a civil suit in the District Court for the District of Columbia, seeking a court order enjoining Mueller from prosecuting Manafort for crimes unconnected to the special counsel’s inquiry into election meddling.
The attorneys representing Manafort picked the D.C. District Court for their civil attack on the special counsel’s authority because Mueller’s team had initially indicted Manafort in the D.C. District Court in October of last year, charging him with multiple counts of money-laundering and failing to register as a foreign agent for Ukraine.
However, when the special counsel later decided to add the tax evasion, bank fraud, and failure to report foreign accounts charges, Mueller had to file a separate indictment against Manafort in the Eastern District of Virginia. That’s because under federal law “the government must prosecute an offense in a district where the offense was committed,” but for tax offensives, absent a waiver, the criminal case must proceed in the district in which the defendant resides. Manafort refused to waive proper venue, obliging Mueller to file a separate criminal case in the district where Manafort lives.
Judge Amy Berman Jackson, who is also presiding over the DC criminal case, dismissed Manafort’s civil challenge to Mueller’s authority, holding “a civil case is not the appropriate vehicle for taking issue with what a prosecutor has done in the past or where he might be headed in the future. It is a sound and well-established principle that a court should not exercise its equitable powers to interfere with or enjoin an ongoing crminal investigation when the defendant will have the opportunity to challenge any defects in the prosecution in the trial court or on direct appeal.” In response, Manafort’s attorneys filed a motion to dismiss the criminal charges pending in the DC District Court. Jackson has yet to rule on that motion.
Manafort’s legal team filed an identical motion to dismiss in the Eastern District Court of Virignia, arguing Mueller’s office exceeded its authority in prosecuting him for tax evasion, bank fraud, and non-disclosure of foreign accounts. Ellis’ hearing on that motion on Friday dominated the news cycle, thanks to some commentary sympathetic to Manafort’s argument and shade the 77-year old Ronald Reagan appointee threw on the government’s case.
Special Counsel Says He Can Investigate More than Russia
During the 10 a.m. hearing in an Alexanderia federal court house, Ellis began by noting the charged crimes date back to 2005 and all predate the appointment of the special counsel. Ellis added: “Apparently, 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. That seems to me to be obvious because they all predate any contact or any affiliation of this defendant with the campaign. So I don’t see what relation this indictment has with anything the special prosecutor is authorized to investigate.”
Michael Dreeben, who appeared on behalf of the special counsel’s team, countered that in appointing Mueller special counsel on May 17, 2017, “to investigate Russian interference with the 2016 presidential election and related matters,” Acting Attorney General Rod Rosenstein granted him broad powers. Those powers, Dreeben explained, included the power to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation.”
Dreeben added that on August 2, 2017, Rosenstein issued a memorandum that provided “a more specific description” of the special counsel’s authority, including the authority to investigate whether Manafort “[c]ommitted a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych[.]”
Given this broad grant of authority, Dreeben maintained Mueller had the authority to prosecute Manafort for conduct unrelated to Russia’s interference with the 2016 election either because the charges related to payments Manafort received from the Ukrainian government, or because the criminal matters arose out of the special counsel’s investigation into links between the Russian government and Manafort.
Ellis withheld ruling on the matter, instead taking the motion to dismiss under advisement. He also ordered the special counsel’s office to file within two weeks a complete copy of Rosenstein’s August 2, 2017, memorandum that detailed the scope of Mueller’s investigation, as the copy provided to the court was heavily redacted.
While Ellis is unlikely to rule on the motion to dismiss until the special counsel’s office files the August 2, 2017 memorandum, Manafort is destined to lose, but Mueller won’t win. Here’s why.
Mueller Is Right: He Has Extremely Broad Powers
First, on the merits, Manafort will likely lose because, for all of Ellis’ bravado, Rosenstein did grant Mueller broad powers, including the authority to investigate “any links . . . between the Russian government and individuals associated with the campaign of President Donald Trump.” While Manafort’s time with the Trump team proved transient, his association with the presidential campaign, links with Russia, and work for the government of the Russian-backed Ukrainian president fell within the special counsel’s expansive reach.
Second, even if Mueller lacked the authority to charge Manafort, and Ellis rules as such, the U.S. Attorney for the Eastern District of Virginia will promptly seek a fresh grand jury indictment on the same charges, leaving Manafort no better off.
But Manafort’s inevitable defeat will not be a victory for Mueller’s team. That much became clear on Friday when, according to USA Today, Trump told attendees at the National Rifle Association’s annual convention in Dallas of Ellis’s hearing, “It’s what I’ve been saying for a long time, it’s a witch hunt.” Trump then read to the gun-rights crowd from a recent news report detailing how Ellis said it was clear that Mueller’s office “only cares about prosecuting Manafort to get information ‘that would reflect on Mr. Trump and lead to his prosecution or impeachment.’”
While Trump trolling the special counsel’s office might not be news, Ellis’s comments from the bench exposed the general public to several under- (or un-) reported facts. Beyond the headline-grabbing news that Mueller’s charges against Manafort were unrelated to Russia’s meddling in the 2016 election, Friday’s hearing also highlighted the fact that the government had long known of Manafort’s dealings with Urkraine but only decided to indict him after Mueller gained control of the investigation—to make him “sing,” as Ellis put it.
Ellis’s comments also brought to light how Rosenstein manipulated his statutory right to appoint a special counsel, something supposedly allowed only in limited circumstances. Former assistant U.S. attorney Andrew McCarthy has railed about this abuse for some time, most recently explaining the problem with Rosenstein’s August 2 memorandum here.
Ellis: ‘Come On, Man. You Said That Was It’
During Friday’s hearing, Ellis drilled down on the problem in questioning the government’s lead attorney, the latter of whom argued that “Manafort’s counsel treats the May 17 order as if it is the specific factual statement that’s contemplated by the special counsel regulations. It is not. The regulations nowhere say that a specific factual statement needs to be provided publicly, and in the context of a confidential, sensitive counterintelligence investigation that involves classified information, it would not make any sense forthat information to be conveyed publicly.”
Ellis found this line of argument less than persausive, telling counsel, “Let me characterize it and see if you find it as satisfying as you appear to indicate that you think it is: We said this is what the investigation was about. But we’re not going to be bound by it, and we weren’t really telling the truth in that May 17 letter. . . . So your argument [is] that we said this was the scope of the investigation but we really didn’t mean it because we weren’t required by any law or regulation to say what the scope was, I understand that argument, but it kind of invites, ‘Come on, man. You said that was it.’ But I think your argument goes on, and you say, Look, the May 17 letter isn’t the end of it. There is the August 2 letter, and in the August 2 letter, it’s expanded considerably because it then says—Russian government is number one, and then it goes on to the Ukrainian government which is never mentioned beforehand. Who knows what else, of course, went on?”
This exchange, though paraphrased by the press, helps cement Trump’s fishing-expedition charge in the public’s conscience.
Friday’s hearing will also not be Ellis’ final word. When Ellis issues his decision on Manafort’s motion to dismiss the charges, he necessarily will address these same issues. Even if the decision goes in the government’s favor, Mueller will have achieved but a Pyrrhic victory because the same criticisms Ellis expressed from the bench will make it into his written opinion, likely with even more panache.
Ellis Will Also Address the Special Counsel’s Leaks
But that inevitability should be the least of the special counsel’s concerns. Later this month, Ellis will consider Manafort’s recently filed motion requesting a hearing to address the government’s “improper disclosure relating to confidential grand jury information and potentially classified materials.” Or, in the venacular, as Ellis might say, leaks.
In his latest motion, Manafort asked the court to set a May 25, 2018, hearing to determine whether the government had violated Rule 6(e) of the Federal Rules of Criminal Procedure. That rule prohibits government attorneys and agents from disclosing “a matter occurring before the grand jury,” and to take appropriate actions to rectify the violation and sanction the leaker.
Last week The Federalist’s Mollie Hemingway broke news of this motion, detailing the many inaccurate stories the mainstream media published about the government’s case against Manafort. As Manafort’s motion makes clear, government agents fed the press the information underlying this fake news. Hemingway also highlighted the representation Manafort’s attorneys made to the court in their motion that the special counsel’s office maintains that it has no material “evidencing surveillance or intercepts of communications between Mr. Manafort and Russian intelligence officials, Russian government officials (or any other foreign officials).”
This story went widely unnoticed, but if Ellis brings to the bench a fraction of the fight he showed on Friday, the press will have no choice but to cover the story. Whether Manafort’s attorneys will succeed in convincing Ellis that the leaks relate to grand jury proceedings—and are thus within his jurisdiction to inquire—is a more difficult question.
But one thing is predictable: With leaks flowing from the heights of government, in the personification of Obama national security director James Clapper, former FBI director James Comey, and former deputy FBI director Andrew McCabe, the special counsel’s office would be wise not to plead innocence—or be prepared to hear Ellis’ “C’mon, man” again.