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I was not in Law School long, faced with a frightening attrition rate after the first year, when I had to face the painful fact that as I was not the brightest bulb in the lamp the only way I was going to make it would have to be by dint of hard, grueling, constant work. Out of that grew my practice, in getting our cases ready for trial, of methodically re-reading and studying and then personally — not via Law Clerks or Paralegals like what my friends in Arkansas call “The Tall Building Lawyers” did — outlining each witness’ deposition so I would readily know their previous testimony.
While my Courtroom days are far behind me (insert smiley-face here) I once again turned to that approach in studying the truly stunning, and most welcome, remarks of Judge T.W. Ellis III Federal Court in Virginia recently in the Manafort-Gestapo matter being waged by “Special” Counsel Mueller and his team of savages-at-law. The reason I did this is that I found, upon my first reading, several noteworthy and rather surprising areas so I decided to go back through the Court’s observations in order to be able to share a lawyer’s analysis, hopefully to illuminate just a few areas either not noted by the media or, in too many cases, simply ignored by the narrative-driven segments of the press.
Here, for what it’s worth, is the result of my deeper study of this most significant hearing, in which the “Special” Counsel and his team of intimidators more than met their match in the person of The Hon. T.W. Ellis, III, of the United States District Court for the Eastern District of Virginia.
1. Judge Ellis calls on the Prosecution first in a hearing on a Defense Motion, an unusual procedural turn.
The first thing the transcript reveals is the Court’s very obvious desire to understand how transactions which took place over 10 years before the President even announced his candidacy could possibly be related to the appointment of a Special Counsel after his election to look into matters, by definition in his appointment Order, having to do with his campaign for President. In his determination to understand, he did something very unusual in calling upon the Special Counsel team first — although it was the Defendant’s Motion to Dismiss the Indictment which was set for argument.
2. A Very Well Prepared and Thorough Judge
It was also apparent that this was one well-prepared Judge, always something attorneys appreciate and welcome, whether on the winning side or not. Judge Ellis had obviously read every jot and tittle of everything in the record, and he early on got right to the meat of the coconut:
MR. DREEBEN: The issue, I think, before you is whether Mr. Manafort can dismiss the indictment
based on his claim.
THE COURT: Yes. Now I asked you: Where am I wrong about that?
MR. DREEBEN: Your Honor, our investigatory scope does cover the activities that led to the
indictment in this case.
THE COURT: It covers bank fraud in 2005 and 2007?
MR. DREEBEN: Yes, because —
THE COURT: Tell me how.
The Court kept at it for some time, dealing with the constant evasion and deflection of the attorney for the Special Counsel, Michael Dreeben:
THE COURT: You’re running away from my question again. You know, I’m focused on the
indictment that is here.
MR. DREEBEN: Correct.
THE COURT: It involves facts and circumstances that go back as far as 2005 and come forward, Mr. Manafort’s loans from several banks that you all claim he submitted fraudulent statements — I’m asking you, and I’ve already established this investigation long predated the special prosecutor. And so what is really going on, it seems to me, is that this indictment is used as a means of exerting pressure
on the defendant to give you information that really is in your appointment, but it itself has nothing whatever to do with it.
MR. DREEBEN: Well, Your Honor, I understand the question. I’m trying to explain why I think that it does have to do with our investigatory scope, and I think there are a couple of premises that may help
illuminate what that investigatory scope is. The first one is that in examining an individual who was associated with the Trump campaign and did have Russian-affiliated connections, which Mr. Manafort did —
THE COURT: Are they Russian or Ukrainian?
MR. DREEBEN: Both. Mr. Manafort worked extensively in Ukraine, and he also has business connections and other connections to individuals associated with Russia.
3. Judge Ellis: “…they may not just sing. They may also compose.”
After more discussion in which it was established that these alleged crimes could not possibly be related to the reason the Special Counsel was appointed, the Court made a most interesting comment about a potential danger in “persuading” a Defendant to “flip” against another:
THE COURT: That’s right, but your argument says, Even though the investigation was really done by the Justice Department, handed to you, and then you’re now using it, as I indicated before, as a means of persuading Mr. Manafort to provide information. It’s vernacular by the way. I’ve been here a long time. The vernacular is to sing. That’s what prosecutors use, but what you’ve got to be careful of is they may not just sing. They may also compose. I can see a few veteran defense counsel here, and they have spent a good deal of time in this courtroom trying to persuade a jury that there wasn’t singing, there was composing going on.
In one of the best comments on the Court’s remarks, Professor Alan Dershowitz, a scholar of international renown in the field of Criminal Law and Procedure, had this to say about these observations in an article aptly titled “Federal judge rightly rebukes Mueller for questionable tactics”
This is what Judge T.S. Ellis III said at a hearing Friday: “You don’t really care about Mr. Manafort’s bank fraud … What you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.
This tactic is as old as Adam turning against Eve. But, as the judge correctly pointed out, it risks the possibility that the squeezed witness will not only sing, he will compose. Here is what Ellis said about that: “This vernacular is to ‘sing,’ is what prosecutors use. What you got to be careful of is, they may not only sing, they may compose.
I have been using this “compose” metaphor for decades and I am gratified that a judge borrowed it to express an important civil liberties concern. Every experienced criminal lawyer has seen this phenomenon at work. I have seen it used by prosecutors who threaten wives, parents, siblings and, in one case, the innocent son of a potential witness who was about to graduate law school. Most judges, many of whom were former prosecutors, have also seen it. But few have the courage to expose it publicly, as Ellis has done.
Defenders of Mueller’s tactic argue that the threatened witnesses and their relatives are generally guilty of some crime, or else they wouldn’t be vulnerable to the prosecutor’s threats. This may be true, but the crimes they are threatened to be charged with are often highly technical, elastic charges that are brought only as leverage. They are dropped as soon as the witness cooperates.
This was precisely the point Ellis was making with regard to Manafort. A similar point could be made with regard to Trump’s former national security adviser, Michael Flynn, and perhaps to his personal attorney, Michael Cohen. Indeed, Flynn pleaded guilty to a highly questionable charge precisely because his son was threatened with prosecution.
4. Judge Ellis makes it clear what he thinks about “unfettered power” in America
THE COURT: What we don’t want in this country is we don’t want anyone with unfettered power. We don’t want federal judges with unfettered power. We don’t want elected officials with unfettered power. We don’t want anybody, including the president of the United States, nobody to have unfettered power. So it’s unlikely you’re going to persuade me that the special prosecutor has unlimited powers to do anything he or she wants.
5. A 10 Million Dollar Budget? The Judge Wants To Know.
THE COURT: By the way, your office was appointed, you say, in May 2017. Is there any requirement that you make reports periodically to the attorney general?
MR. DREEBEN: Yes.
THE COURT: Does that include financial? I think you were given $10 million to begin with.
MR. DREEBEN: We have proposed a budget and had a budget approved.
THE COURT: Of $10 million?
MR. DREEBEN: I believe that’s correct.
THE COURT: Have you spent that yet?
MR. DREEBEN: I am not in a position to talk about what our budget is.
THE COURT: Are you in a position to tell me when the investigation will be over?
MR. DREEBEN: I am not, Your Honor.
6. “I’ll be the Judge”
The Judge notes that 75 percent of the August 2 “supplemental” scope letter is blacked out and the Special Counsel attorney responds with the hubris and arrogance which has, unfortunately, come to typify all of their conduct:
MR. DREEBEN: There is in this record a memorandum that he has issued on August 2 that explains that crimes that arose from Mr. Manafort’s receipt of payments from Ukraine is within our jurisdiction and was at —
THE COURT: Yes. I have that right here, and I’m glad you raised it because 75 percent of it is
blocked out, redacted. Why don’t I have a full copy of it?
MR. DREEBEN: The only paragraphs that are pertinent to Mr. Manafort are the ones that are contained in this record.
THE COURT: Well, let me use a phrase that I’m fond of that I used to use with my children. I can’t use it with my wife, but I’ll be the judge of whether it relates to the others. I think you should give me under seal to be sure — and you can do it ex parte if you wish — under seal, ex parte a complete copy of the August 2, and I’ll be the judge of whether it has anything to do with Mr. Manafort.
7. The August 2 “supplemental” letter — Rosenstein’s attempt at retroactive correction of his mistake?
One of the first things Manafort’s attorney brought up, in what I thought was a very fine, if not excellent, argument, was that the so-called “supplemental” “scope letter” could not be allowed to retroactively cure what was obviously an error of the Most Righteous Deputy Attorney General, he who attacks any attempt by Congress to do what is its sworn duty of oversight of “his” Department, in expanding the scope of the jurisdiction of the Special Counsel to include matters in which Manafort had allegedly been involved, i.e., with Ukraine, not Russia:
THE COURT: Well, let me ask you: So what? In other words, is what you’re arguing that the use of that investigation in this case is contrary to the regulation that requires the acting attorney general here, Rosenstein, to be specific about what areas he wants investigated, and you’re saying he was too general. In this supplemental, doesn’t he remedy that in the August 2 letter?
MR. DOWNING: He can’t retroactively remedy it. The question is as of that date, what he did, does it give jurisdiction to the special counsel, or is it still so unrelated to the specific mandate as to be in violation of the regulations and the underlying statute? That’s the question. You, I think, early on got right to the point, which is this doesn’t really make any sense. This doesn’t look like it’s related.
Lest we fail to note, by the way, that this “supplemental” “oops” memo, came shortly after the Mueller goon squad of Jackboots conducted an early morning “raid” in which they broke the door down of Mr. and Mrs. Manafort’s home, with guns drawn, including on Mrs. Manafort still in her night gown, and one may be excused for a little cynicism in asking, in the best Columbo style, if this “supplemental” “oops” memo might have had just a teeny, weeny little bit to do with correcting that egregious show of totally out of control Gestapo tactics.
8. Judge Ellis has some pungent remarks about the “honor” of the Department’s representations to the American people. “C’mon man!”
THE COURT: Well, I understand your argument, but let me characterize it and see if you find it as satisfying as you appear to indicate that you think it is: We said this is what the investigation was about. But we’re not going to be bound by it, and we weren’t really telling the truth in that May 17 letter. I don’t watch pro football, but I used to enjoy the program that came beforehand where a bunch of players would get on and essentially make fun of everybody. But they would put on some ridiculous thing, and then they would all say in a chorus, Come on, man.
I loved that. I thought that was great. So your argument that we said this was the scope of the investigation but we really didn’t mean it because we weren’t required by any law or regulation to say what the scope was, I understand that argument, but it kind of invites, Come on, man. You said that was it.
But I think your argument goes on, and you say, Look, the May 17 letter isn’t the end of it. There is the August 2 letter, and in the August 2 letter, it’s expanded considerably because it then says — Russian government is number one, and then it goes on to the Ukrainian government which is never mentioned beforehand. Who knows what else, of course, went on?
In any event, I wanted you to be clear how I understand that particular argument.
9. Judge Ellis knows what a “Special Prosecutor” must do: indict someone for something!
You know, when a prosecutor is appointed, he’s appointed to get an indictment. He’s appointed to go after somebody. Somebody mentioned to me not long ago that this is a different scheme, that it’s not the scheme that was in effect in the ’60s and ’70s. That’s true, but I suspect the change in this process is not significant. It’s still the same. It’s still the same. You appoint a prosecutor, and that prosecutor goes after with the intent — whether it was Clinton or whoever else it was, Reagan or whoever, they go after him with the idea they’ve got to get an indictment. If they don’t, they’re very unhappy. I remember speaking to one special prosecutor, the Iran-Contra thing, and he was terribly disappointed. That’s what prosecutors do. I understand that.
10. Where is the “record memo” Rosenstein almost certainly put in the record to explain the Aug. 2 “oops” memo?
THE COURT: Do you have anything else to add?
MR. DOWNING: Just briefly, Your Honor. The one thing we would ask this Court to do before deciding the motion before the Court is to ask the government for what anybody who has had any experience with the Department of Justice knows exists, which is the written record. Where is the written record before Mr. Mueller was appointed? Where is the written record about the decision —
THE COURT: What do you mean by the written record?
MR. DOWNING: Mr. Rosenstein had a process he had to go through in order to determine that there was a conflict that gave rise to the appointment of special counsel, the specific matter that the special counsel was going to investigate in any additional jurisdiction he granted. It would all be written down somewhere. That’s how the Department of Justice works.
Mr. Rosenstein even conceded when he was testifying up on the Hill and he was confronted with the question of, When did you expand the jurisdiction to the special counsel? He couldn’t or wouldn’t answer the question, but he did say very tellingly, I will go back and check my records, and I will get back to you. So we would ask that this Court order the government to turn over those records so that the Court doesn’t have to guess what happened.
11. Judge Ellis is Mueller’s and Rosenstein’s worst nightmare
For creatures of the Swamp, there can be no more horrible nightmare than to run headlong into a Federal District Court who not only asks questions which so many Americans have been asking ever since this farce began, such as who gave you such unfettered power, etc., but who has the power to back up those questions with orders to produce entire, unredacted copies of pertinent documents, so, as he so trenchantly put it, “I’ll be the Judge” of whether it is pertinent or not.