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.
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….
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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….
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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….
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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.
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