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Virginia Federal Judge: Mueller can continue to prosecute Manafort for matters unrelated to the campaign

Virginia Federal Judge: Mueller can continue to prosecute Manafort for matters unrelated to the campaign

“Here, we have a prosecution of a campaign official, not a government official, for acts that occurred well before the Presidential election”

In early May 2018, we reported on comments by the U.S. District Court Judge in Virginia that had many pundits giddy.

The Judge lambasted Robert Mueller’s team during a hearing on whether to dismiss the Superseding Indictment, Manafort Judge: Mueller only really cares about the “prosecution or impeachment” of Trump:

This morning in court on Manafort’s motion challenging Mueller’s authority to prosecute the bank fraud case, the Judge lashed out at Mueller and made some comments that echo the points I’ve been making all along.

We don’t have a transcript, but we do have multiple news reports. From The Washington Post(emphasis added):

A federal judge in Virginia on Friday grilled lawyers from the office of special counsel Robert S. Mueller III about the motivations for bringing a bank and tax fraud case against former Trump campaign manager Paul Manafort.

“You don’t really care about Mr. Manafort’s bank fraud,” Judge T.S. Ellis III said during a morning hearing. “You really care about getting information Mr. Manafort can give you that would reflect on Mr. Trump and lead to his prosecution or impeachment.”

While this public lashing was correct, I cautioned about reading too much into it based on the news reports of the hearing:

It doesn’t sound from the reports that the Judge is likely to quash the prosecution, but at least some truth was spoken.

Once I read the transcript, my view became more stark, Manafort hearing transcript reflects Mueller fishing expedition being put on trial:

My bet on how this ends up? The Judge rips Mueller’s team a new one, then lets them proceed forward anyway. I hope I’m wrong on that latter conclusion, because Mueller is on a fishing expedition, trolling the lake to find crimes by anyone associated with Trump who could be forced, in the judges words, to sing.

Funny, I don’t remember the Order of appointment authorizing Mueller to: Go get the President, by any means possible, and don’t worry about collateral damage.

And sure enough, Judge Ellis has denied the motion to dismiss, even though once again he verbalized what we all know about how Manafort has been selected for prosecution to get to Trump.

The Memorandum Opinion (pdf.)(full embed at end of post) provides, in part:

This multi-count indictment charging defendant with various bank fraud and tax charges was brought by a Special Counsel appointed by the Acting Attorney General to investigate collusion between President Trump’s campaign for the presidency and the Russian government in connection with the 2016 Presidential election. At issue is defendant’s threshold challenge to the authority of the Special Counsel to pursue the charges in the Superseding Indictment which, on their face, appear unrelated to the 2016 Presidential election….

* * *

In sum, there appears to be little operational difference between the current Special Counsel appointment scheme and the scheme found wanting under the 1978 Act and its reauthorizations. Both schemes are subject to many of the same objections. Like the independent counsel under the 1978 Act, the current Special Counsel has broad authority to investigate and prosecute crimes unburdened by traditional limits placed on an ordinary prosecutor. Many of the same problems that plagued investigations pursued under the 1978 Act — from Kenneth Starr’s investigation of Whitewater to Lawrence Walsh’s investigation of Iran-Contra — seem equally applicable to the current process.12 In the end, Congress and members of both political parties reached the sound conclusion that the 1978 Act and its reauthorizations should be allowed to expire, as the Act had come to be a tool for pursuing partisan agendas rather than a means of assuring accountability in government by prosecuting crimes committed by high-ranking government officials. That lesson, it seems, has been forgotten….

* * *

The May 17 Appointment Order does not limit the Special Counsel’s prosecution authority to federal crimes concerning election interference or collusion; rather, the Special Counsel is authorized to prosecute federal crimes that arise out of his authorized investigation. And the crimes charged in the Superseding Indictment clearly arise out of the Special Counsel’s investigation into the payments defendant allegedly received from Russian-backed leaders and pro-Russian political officials….

* * *
To the extent the broadly-worded May 17 Appointment Order is lacking in clarity, the August 2 Scope Memorandum seeks to remedy this by stating explicitly that the Special Counsel is authorized to investigate defendant’s payments from the Ukrainian government before and during the tenure of President Yanukovych. See August 2 Scope Memorandum at 1-2. Given that the Special Counsel was authorized to conduct the investigation and to prosecute the violations in the Superseding Indictment, dismissal of the Superseding Indictment is not warranted and defendant’s motion must be denied on this ground alone….

In sum, dismissal of the Superseding Indictment on the grounds urged by defendant is not warranted here. But that conclusion should not be read as approval of the practice of appointing Special Counsel to prosecute cases of alleged high-level misconduct. Here, we have a prosecution of a campaign official, not a government official, for acts that occurred well before the Presidential election. To be sure, it is plausible, indeed ultimately persuasive here, to argue that the investigation and prosecution has some relevance to the election which occurred months if not years after the alleged misconduct. But in the end, that fact does not warrant dismissal of the Superseding Indictment….

In short, Manafort’s misfortune in life was being connected to the Trump campaign, and doing business with Ukrainians who were supportive of Russia. That’s all the hook the unbridled Special Counsel needed to bring charges completely unrelated to Russian campaign interference or alleged collusion against Manafort.


USA v. Manafort (VA) – Opinion Denying Manafort Motion to Dismiss Supreseding Indictment 6-26-2018 by Legal Insurrection on Scribd


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dismissal of the Superseding Indictment is not warranted and defendant’s motion must be denied on this ground alone…

Is the judge signalling that there are other grounds that would warrant the dismissal?

    DaveGinOly in reply to lpdbw. | June 26, 2018 at 11:42 pm

    That language actually indicates that the court believes there are other reasons to allow the prosecution to continue.

      Well, of course. He did commit several crimes, which if you listen to the Left, make him some sort of bloody-handed murderer worthy of a century or two in jail, or if you listen to the actual previous administration’s prosecutors, were not even worth bringing to trial.

      Gee, it’s like he’s being singled out for this kind of brutal legal sledgehammering for some reason.

regulus arcturus | June 26, 2018 at 9:49 pm

Judge Ellis makes extensive analysis using past Special Counsel/Independent Counsel reference, but seems to poke about justifying how Rosenstein’s original appointment memo verifies Muller’s original authority. He never says when the actual payments occur, nor expands on the mysterious dysfunctional appointment memo by Rosenstein.

Ellis defers to DOJ, but opines that a “bipartisan commission with subpoena power and the authority to investigate all issues related to alleged interference in the 2016 Presidential election” would be better suited to address this issue.

He concludes with the unintentionally hilarious

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.


In short, Ellis says “Leave me out of this mess.”

Close The Fed | June 26, 2018 at 9:49 pm

So, the scope of appointment basically said, “Look around wherever you want and if you find something, anything, you can indict.”

Too broad on the face of it. Completely unmoors Mueller from oversight.

In other words, the judge was courageous enough to tell the truth but he wasn’t courageous enough to do anything about it.

The U.S. Justice system is broken.

Professor Jacobson puzzles me with the comment: “Funny, I don’t remember the Order of appointment authorizing Mueller to: Go get the President, by any means possible, and don’t worry about collateral damage.”

In plain language that even I can hope to understand, The Appointment of Special Counsel says:

(b) The Special Counsel is authorized to conduct the investigation . . . including:

(i) any links and/or coordination bet ween the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

I am not familiar with all the charges against Manafort but would think they include lying to the FBI, money laundering, failure to declare foreign income, failure to register as a foreign agent and the killer, attempting to influence testimony while under court order not to contact related parties.

And when the dust settles, Manafort pleads guilty and gets 110 years reduced to 20 for giving up the remaining conspirators.

Could one of those conspirators be Donald Trump? The public Donald Trump shows his character to be basically flawed and his many convictions and his buying his way out of trouble have got to be ended. Those of us who have ever worked for a boss with a Trump-type personality know that the sickness will never be altered. Despots roll over everyone unless they are put away.

    Colonel Travis in reply to gad-fly. | June 26, 2018 at 11:19 pm

    Could one of those conspirators be Donald Trump?

    Conspiracy for what? Manafort’s charges go back to 2006. None of them has anything to do with the Trump campaign, and if Trump were involved with any of that stuff you would have heard about it immediately, long ago.

    regulus arcturus in reply to gad-fly. | June 27, 2018 at 2:36 am

    Good luck with your speculative violation case.

    Recce1 in reply to gad-fly. | June 27, 2018 at 6:02 pm

    Trump has a lot of faults.
    However, has he defied the SCOTUS,

    dissed the Constitution,

    illegally appointed officials,

    used government agencies to harass citizens and deny them their rights,

    engaged in wholesale spying on citizens,

    circumvented the express will of Congress with unconstitutional EOs,

    allowed vital resources to be sold to a hostile power,

    engaged in gun running to undermine the Bill of Rights,

    engaged in gun running to help enemies of the US,

    had citizens killed abroad without due process and claimed the right to do that in the US,

    and engaged in an effort to rig an election and when that failed tried to sabotage the next president?

      venril in reply to Recce1. | June 28, 2018 at 10:49 am

      Add to that –

      Actively interfering in the national elections of various countries, including allies. (Israel, Russia, etc) This one is funny

      Promoting an islamic revolutionary movement throughout the middle east (Arab Spring) and engaging in War in Libya, refusing to consult congress per the WPA. Instead, citing the UN as sufficient approval. Libya had/has a serious negative effect on our diplomacy – Ghaddafi was playing ball with the US, after he realized he had a serious and credible target on his back. He did what we asked and was assisting the US. So we (VJ and HRC) provided support to rebels and had a hand in getting him killed. Kim took notice, as did many others. We could not be trusted. The sheer stupidity of this boggles the mind. And THEN, to jump a pair of sharks –

      Spirited away weapons from Libya to Syria to support THAT rebellion. By Islamic radicals, to take down another albeit unsavory character, but a secular one. Like Ghaddafi.

      Undermined Poland and further demonstrating we could not be trusted as an ally by cancelling the ABM system Poland seriously wanted to host. They fear the bear, rightly so. CE was suddenly without a friend. Signs of ‘flexibility?’

      The items seem to keep popping up. Corruption eruptions, to rephrase an oldie.

What a pantywaist! This judge’s childhood hero must have been Pontius Pilate.

He gives the Swamp everything it wants, then whines about it, meaning that he know better but chooses to sing castrato anyway. The Swamp wins again, and the judge pretends to earn his salary by doing a bit of useless virtue-signaling.

What a putz. A waste of a perfectly good robe.

I suppose, technically, this is Russia’s fault. If they had not intervened in the Syrian war, there would have been no cause for America, Germany, Britain et al to back a coup in Kiev, and neither Democrats nor Republicans would not be on trial for their relations with Ukranians or Russians. Well, not Republicans, anyway. The former, it seems, could always count on prosecutorial discretion (i.e. “not strict”) and bullhorns in the mainstream and “independent” press.

Did Judge Ellis actually read ALL the DoJ Special memos without redactions??

When is our impotent swampster AG going to prosecute any of the democra criminalty of the past 10 years?

neanderthal | June 27, 2018 at 2:35 am

From what I read in the transcript, it looks like the key reason the judge found no grounds to dismiss the lawsuit has to do with the oddities of the Special Counsel “regulations.” Effectively, it’s not really a regulation at all, since the DOJ is not bound to follow it, and they state in the regulations that they do not create any rights that a judge can enforce.

So according to the way the “regulations” are written, even though the rules state that the Special Counsel is appointed based on a crime to be investigated, there’s nothing preventing the AG from simply ignoring that requirement and using it for a counterintelligence investigation. And even though the rules require a statement of purpose describing the authorization the Special Counsel is given when appointed, the Special Counsel is not bound by that authorization in any sense unless the AG says so.

It’s not so much a regulation as a statement that “this is how we normally handle these situations.” But since the AG is apparently not bound to follow all the requirements in the so-called regulations, the only limit to the Special Counsel’s power is what the AG is willing to limit the Special Counsel to.

I see that Senator Chuck Grassley has figured out that this is a problem, and is pushing to make this a statute passed by Congress — which would force any AG or Special Counsel to actually follow the rules.

So I don’t think the judge had much choice based on the law, which is why he indulged in criticizing the regulations and the process rather than actually dismissing the case.

    It’s saying that having an absentee Attorney General unable and unwilling to actually handle the duties of the position in a matter of national import leads to problems, but it is not the place of the judiciary to overturn a foolish arrangement that the “Acting Attorney General” claims to have granted his blessing and retains oversight over. The former is certainly true. This is 100% in line with the position I have held ever since actually reading the regulations, which are astonishingly generous.

      venril in reply to JBourque. | June 28, 2018 at 10:53 am

      It would seem that the remedy is for Sessions to pull his head out his @ss and set *his* house in order. I was happy to hear of his appointment but he’s been and big disappointment.

      Can you imagine Holder or the last empty suit to recuse themselves on anything threatening the ‘wingman’?

If the law says Manafort is indictable, so be it, but the appropriate agency and Manafort should be left to their own devices to work it out. If judge Ellis is willing to let Mueller live by the results of poisoned fruit it’s way past time many of this crowd died as a consequence of it as well. Where are the indictments for falsifying 302s to the FISA court, lying to Congress, destruction of evidence, withholding exculpatory information and documents? The lists of known people and the highly suspect actions associated with them are both long, and they grow every day. It is the ignoring of directly related activities, e,g. the DNC IT crowd, their access to communications, destruction of evidence, and who knows what financial skulduggery, that reeks to high heaven and puts the stink of this clutch sanctimonious zealots onto our legal system and its institutions.

    Close The Fed in reply to Owego. | June 27, 2018 at 7:54 am

    Re: Owego

    Yes, I agree, but to go slightly off-topic, I’ve heard little or no commentary on the utterly appalling hiring practices of the dem representatives. They supposedly want more blacks – a big constituency of theirs – in technology work, and instead of hiring American blacks to do their IT work, they farm it out to shady unvetted foreigners!!!

    The salaries paid the Awans was ridiculous, but they could have at least enriched some American blacks in the process instead of letting all that money – and secrets! – leak to Pakistan!!!


It is understandable that a reasonable trial judge would rule that the prosecution could continue. While not beneficial to Manafort, it could be beneficial in the long run, if the same standards are applied to everyone else in Washington who has committed the same violations of law. This would include Democrat operatives, such as the Podestas.

Anybody can be included?
Or is this just for Trump supporters?