At a tense hearing in a federal court in Virginia on Friday, U.S. District Judge T.S. Ellis III sharply questioned whether Mueller exceeded his authority in filing tax and bank fraud charges against Trump’s former campaign manager, Paul Manafort.
Ellis said the indictment appeared to be a way for Mueller to leverage Manafort into providing information about Trump.
“The vernacular is to sing,” he said.
“You don’t really care about Mr. Manafort,” the judge said. “You really care about what information Mr. Manafort can give you to lead to Mr. Trump” and his eventual prosecution or impeachment.
“It’s unlikely you’re going to persuade me the special counsel has unfettered power to do whatever he wants,” Ellis, who was appointed by Republican President Ronald Reagan, said at a hearing on Manafort’s motion to dismiss the Virginia charges.
Manafort, who served as Trump’s campaign manager for five months, also faces federal charges in Washington, where he is accused of conspiring to launder money and failing to register as a foreign agent when he lobbied for the pro-Russia Ukrainian government.
Michael Dreeben, a deputy solicitor general working with Mueller, argued the special counsel’s investigative scope covered the activity in the indictment.
In an Aug. 2, 2017, memo, Deputy Attorney General Rod Rosenstein authorized Mueller to investigate whether Manafort “committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.”
The former Ukrainian leader was removed from power and fled to Russia in February 2014, more than two years before Trump declared his candidacy for president.
“A WITCH HUNT”
Trump enthusiastically read the judge’s comments out loud to his audience during a speech to the National Rifle Association in Dallas, saying they echoed his longstanding views. He called Ellis “a very respected person.”
“I’ve been saying that for a long time. It’s a witch hunt,” he said of Mueller’s probe into his campaign’s ties to Russia and whether it colluded with Russians to interfere in the 2016 election.
He also distanced himself from Manafort, calling him a nice guy but saying “he worked for me for a very short period of time.”
The sharp tone of the judge’s comments could spell trouble for Mueller’s case against Manafort and put even greater pressure on Rosenstein to rein in the Russia investigation.
But several legal experts cautioned against reading too much into the comments.
“I think there are some judges that believe that in being evenhanded, they should give the winner a hard time, too,” said James Trusty, a former federal prosecutor now with the law firm Ifrah Law. “At the end of the day, it’s very dangerous to read the tea leaves from comments from the bench.”
Lisa Kern Griffin, a professor at Duke University School of Law and a former federal prosecutor, said it is unlikely Ellis will dismiss the charges against Manafort because bringing them was “almost certainly” within Mueller’s broad authority.
If Ellis dismissed the charges, they would likely be reinstated by an appeals court, Griffin said. “I think Judge Ellis may just be putting to the government through its paces,” she said. “That is not uncommon.”
The hearing on Friday was the third time Manafort has tried to get charges against him dismissed. A civil case alleging the Justice Department’s order appointing Mueller was overly broad was tossed last month.
He also asked for dismissal of the Washington-based criminal charges on similar legal grounds, but there has not been a ruling.
Ellis did not rule on the motion to dismiss on Friday.
Ellis asked why a run-of-the-mill bank fraud case with no “reference to any Russian individual or Russian bank” could not be handed over to the U.S. Attorney’s Office in the Eastern District of Virginia.
As an example, he pointed to the FBI probe into Trump’s personal lawyer, Michael Cohen, and said the special counsel had turned that matter over to federal prosecutors in Manhattan.
Dreeben declined to discuss the Cohen case.
Ellis also complained that the bulk of that August memo he received was highly redacted. He told Mueller’s office to take two weeks to consult with U.S. intelligence agencies to see whether they would sign off so that he can personally review a sealed, unredacted version of the memo.
Dreeben told him the redacted portions did not pertain to the Manafort case.
“I’ll be the judge,” Ellis said.
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