U.S. District Judge T.S. Ellis III made a number of comments in a Friday hearing suggesting that he’s sympathetic to Paul Manafort’s attorneys’ argument that bank and tax fraud charges against him fall outside the scope of special counsel Robert Mueller’s investigation into the Trump campaign’s ties to Russia.
Ellis, a Ronald Reagan appointee who sits in the Eastern District of Virginia, told prosecutors: “You don’t really care about Mr. Manafort’s bank fraud. You really care about getting information Mr. Manafort can give you that would reflect on Mr. Trump and lead to his prosecution or impeachment.”* Ellis further cautioned the special counsel’s office against seeking “unfettered power” and said its statements that it is investigating allegations related to the 2016 election amount to “lying.”
Ellis’ comments, however, do not portend failure for Mueller’s prosecution of Manafort. For one, Mueller’s team has also brought money laundering and illegal-lobbying charges against Manafort in a D.C. federal court; while Manafort made similar arguments there about Mueller’s ostensible lack of authority, the D.C. judge seemed much more skeptical of his reasoning than Ellis did. Moreover, Ellis noted that his remarks did not indicate that the charges against Manafort were “illegitimate,” suggesting that perhaps they could be handled more appropriately by the local U.S. attorney’s office.
Yet Ellis’ apparent objections to the special counsel’s prosecution are profoundly flawed and unlikely to be upheld on appeal should he rule in Manafort’s favor. When Deputy Attorney General Rod Rosenstein appointed Mueller to investigate potential collusion between the Trump campaign and Russia, he licensed Mueller to look into “any matters that arose or may arise directly from” that investigation. Mueller was also licensed to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Manafort, Trump’s former campaign chairman, was clearly an individual “associated with the campaign of President Donald Trump” and this case obviously delves into “links” between him and the Russian government. Since that initial appointment order, Rosenstein has also expressly authorized Mueller to investigate any crimes Manafort may have committed “arising out of payments he received from the Ukrainian government.” One of those alleged crimes was bank fraud, which was necessary to launder money—the charges at the heart of Mueller’s prosecution of Manafort in Virginia federal court.
Ellis has now directed Mueller to give him an unredacted copy of the second Rosenstein memo—the redacted portions of which presumably wouldn’t pertain to the Manafort case—theoretically to confirm that the special counsel is still acting within the scope of his authority in this current case. But the redacted version itself spells out that Mueller is, indeed, following his mandate in this specific case. So why would the judge need the unredacted letter, unless he had other concerns or motivations? His comments accusing Mueller’s team of lying and openly questioning their intentions indicate a broader displeasure with the special counsel. This behavior is puzzling; there is no rule prohibiting prosecutors from bringing charges against one individual in order to flip another. And there is certainly no bar on prosecutors bringing valid charges against an associate of the president with the ultimate goal of his prosecution or impeachment.
The most likely explanation for Ellis’ conduct, then, is that he is applying “stare Scalia.” The late Supreme Court Justice Antonin Scalia famously believed that a president had “complete control over investigation and prosecution of violations of the law,” leading him to condemn special investigations that excluded the chief executive. Yet Scalia expressed this view in dissent, and it is still not the law today. Further, the law governing the special counsel does not place it outside the command of the Justice Department, which is an executive branch agency ultimately controlled by the president—so any concerns about the special counsel’s excessive independence are unfounded. Ellis’ dismay at the Manafort prosecution seems to arise more from a theoretical, Scalia-esque objection to the special counsel’s wide-ranging investigation than a genuine qualm about its legality. Should he dismiss all or some of the charges, Mueller’s team will directly appeal his ruling to the 4th U.S. Circuit Court of Appeals, where they will very likely win. But Ellis’ decision could still do political damage, giving Trump a talking point in his ongoing rants against the special counsel’s “witch hunt.”
*Correction, May 4, 2018: This post originally misspelled Ronald Reagan’s first name.