On Tuesday, federal judge T.S. Ellis refused to toss out criminal charges Special Counsel Robert Mueller had filed against Donald Trump’s former campaign advisor Paul Manafort. Manafort must now stand trial in the Eastern District of Virginia on multiple counts of filing false income tax returns, failing to file reports of foreign bank accounts, and bank fraud and conspiracy to commit bank fraud.
Manafort also faces charges in the U.S. District Court for the District of Columbia for conspiring against the United States, conspiring to launder money, failing to register as an agent of a foreign principal, making false statements to the Department of Justice, and the most recently added counts charging that Manafort conspired to obstruct justice by attempting to influence a witness.
Here are six quick takeaways from Ellis’ order denying Manafort’s motion to dismiss.
1. Despite His Harsh Words, Ellis Grants Mueller’s License
Judge Ellis’ Tuesday order came a little more than a month after the 78-year-old Ronald Reagan appointee made headlines by excoriating attorneys representing Special Counsel Robert Mueller during a hearing on Manafort’s motion to dismiss the indictment.
“You don’t really care about Mr. Manafort’s bank fraud…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,” Ellis declared during the May 4, 2018 hearing. “And how much is this investigation costing Americans?” Ellis asked, before adding: “What we don’t want in this country is…anyone with unfettered power.”
When Ellis stated from the bench in looking at the indictment that “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,” this caused some to think Manafort stood a chance of having the indictment dismissed. Nope. Not likely, as I explained at the time:
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.
In finding Mueller’s investigation of Manafort fell within the authority granted to the special counsel, Ellis applied an identical analysis, writing: “[I]n the May 17 Appointment Order, the Acting Attorney General authorized the Special Counsel to investigate, among other things, ‘any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.’ It is undisputed that defendant is an ‘individual associated with the campaign of President Donald Trump[;]’ indeed, defendant served as the chairman of President Donald Trump’s campaign from March 2016 until August 2016. Moreover, the Special Counsel’s investigation focused on potential links between defendant and the Russian government.”
2. The Legality of Mueller’s Appointment Is Still Shaky
In denying Manafort’s motion to dismiss, Ellis also made passing mention of the Appointments Clause of the Constitution, which requires the president to appoint, and Congress to confirm, “principal officers.” After noting that “the parties do not dispute that the Special Counsel’s appointment was consistent with the Appointments Clause of the Constitution,” Ellis nonetheless mused that the special counsel was not a principal officer, but an “inferior officer,” whom “the Attorney General (or Acting Attorney General) could appoint without running afoul of the Appointments Clause.”
This dicta seemingly conflicts with Professor Steven Calabresi’s conclusion that Mueller’s appointment violates the Appointments Clause of the Constitution, an argument I cribbed—with credit, of course. So, is a mea culpa due?
No. Ellis is correct in the abstract, but Calabresi’s argument is more nuanced than what the federal judge considered. Manafort “does not argue that the appointment of the Special Counsel violates the Appointments Clause of the Constitution, so that particular objection need not be addressed in detail here,” Ellis wrote, before adding that “it is worth noting that such an objection would likely fail.”
But the devil is in the details. If those details reveal that Rosenstein has abdicated any real supervisory authority over Mueller, converting him, de facto, into another U.S. attorney, then his appointment would violate the Appointments Clause because only the president can appoint, with the advice and consent of the Senate, U.S. attorneys.
3. Ellis Is Entertaining But Also Serious
Ellis’ discussion of the Appointments Clause argument, however, demonstrates that he is a serious jurist, as does the totality of his decision. While his in-court persona proved more entertaining, when it came time to address the important legal issues at stake, Ellis put forth a methodical and tightly reasoned analysis. The serious tone and detailed discussion provide some comfort to Americans of both political stripes that—at least in his courtroom—both Manafort and the special counsel will be given a fair shake.
4. Ellis and Everybody Know It When We See It
Ellis is also no rube and he recognizes that, while justice in his courtroom is blind, the special counsel’s team has eyes . . . only for Trump. And everyone knows it! “Given the investigation’s focus on President Trump’s campaign,” everyone 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,” Ellis wrote. “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.”
5. Ellis Schools Americans on the Special Counsel
For Ellis, though, it is not merely Mueller’s squeezing of Manafort that proves problematic: It is the entire special counsel scenario. To prove his point, Ellis walks readers through the history of the special counsel regulations that began “[i]n the wake of Watergate and the so-called Saturday Night Massacre,” when “Congress enacted the first iteration of the independent counsel statute, the Ethics in Government Act of 1978.”
It was reauthorized over the years, until the last iteration passed Congress as the Independent Counsel Reauthorization Act of 1994. Then, in 1999, Congress allowed the independent counsel law to expire when, as Ellis put it, “[b]oth Republicans and Democrats had come to the conclusion that in practice the 1994 Reauthorization Act and its predecessors had become more often a political weapon to be unleashed in the ongoing, indeed escalating culture wars, than a tool for ferreting out and prosecuting crimes ostensibly committed by high-ranking government officials.”
While Congress did away with independent counsels, the Department of Justice adopted special counsel regulations “to replace the procedures set out in the Independent Counsel Reauthorization Act of 1994.” The same independent counsel flaws now plague the appointment of a special counsel, as Ellis explains:
But the regulations do not require the Special Counsel’s investigation to be limited as to time or budget. Thus, to 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. Furthermore, the Special Counsel regulations’ failure to require identification of specific crimes creates strong incentives for Special Counsel to allege that those individuals have committed criminal acts, even if the criminal acts the Special Counsel ultimately prosecutes are unrelated to the original reasons for appointing the Special Counsel. If a Special Counsel discovers no criminal activity then the investigation is likely to be perceived as a waste of time and resources, and thus a Special Counsel has a strong incentive to find criminality and to prosecute criminal conduct by the people he has been charged with investigating — here persons connected with the Trump campaign.
6. Ellis Has High Hopes, But They’re Perhaps Too High
Yet the law is the law, and no matter the flaws with the special counsel regulations or the appointment of Mueller, “dismissal of the Superseding Indictment on the grounds urged by defendant is not warranted here,” Ellis held. “But that conclusion should not be read as approval of the practice of appointing Special Counsel to prosecute cases of alleged high-level misconduct,” Ellis added before concluding with a final reminder—and hope:
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.
Regrettably, with Department of Justice Inspector General Michael Horowitz’s recent revelation that at least four members of Mueller’s special counsel team held strong anti-Trump animus, I hold out no hope that “people of virtue, sensitivity, and courage,” are “work[ing] within the confines of the law” in investigating Russia’s interfering with the 2016 presidential election.