Last Friday, the Mueller team stumbled into the court of an honest and experienced federal judge, Senior United States District Judge T.S. Ellis III. It went very poorly for Mueller’s man, Michael Dreeben, as Jim George laid out, based on his own years of trial practice. Unfortunately for Mueller and Rosenstein, Judge Ellis is not impressed by DOJ “secret” claims.

You see, this judge presided over the “American Taliban” Johnie Walker Lihnd case, the trial of three Americans accused of supplying secrets to Israel, and an attempt by a former detainee to sue the CIA, alleging rendition and torture. As a Reagan appointee, he is the closest we will get to neutral. A review of three national security cases yielded five points, and reinforced the impression Mueller’s team is in for tough sledding.

United States v. Lindh (the so-called “American Taliban” case):

1. Judge Ellis writes so the general public can understand his opinions.
2. He calls balls and strikes, applying the law as he finds it.

This was a plea agreement, so Judge Ellis had to decide the proper sentence. From the sentencing memorandum, here is the criminal conduct.

By fighting with and supplying services to the Taliban, defendant committed a felony violation of 50 U.S.C. § 1705(b), 18 U.S.C. § 2 and 31 C.F.R. §§ 545.204 and 545.206(a). As agreed to by the parties in the Plea Agreement, this felony offense involved, or was intended to promote, a federal crime of terrorism within the meaning of U.S.S.G. § 3A1.4, in that the Taliban’s control of Afghanistan and the activities of those individuals fighting in support of the Taliban provided protection and sanctuary to al Qaeda, a designated foreign terrorist organization.[4] Additionally, by carrying an explosive during the commission of a felony which may be prosecuted in the United States, defendant committed a felony violation of 18 U.S.C. § 844(h)(2).

The judge then showed his homework on sentencing calculations, and pronounced the sentence.

The Court commits defendant to the custody of the Bureau of Prisons for a period of one hundred and twenty (120) months as to each count, these terms to run consecutively to one another, for a total custody sentence of two hundred forty (240) months.

Judge Ellis then addressed the obvious public concerns (emphasis added).

The 20-year custody sentence imposed today on defendant is just and reasonable given the totality of circumstances. To be sure, there will be many who think the sentence is too lenient, pointing out, as did the father of CIA Agent Spann, who spoke eloquently in the course of the sentencing hearing, that defendant must have played a role in the murder of Agent Spann. In fact, it is clear that the government’s exhaustive investigation uncovered no evidence that defendant played any role whatsoever either in Agent Spann’s murder or in the planning of the QIJ uprising. Had such evidence existed, the Court would not have accepted the proffered Plea Agreement.[9]

Moreover, others who believe the 20-year sentence is too lenient may argue that those who “take up arms against the United States” deserve a more severe sentence. Defendant, it appears, denies that he knowingly took up arms against the United States. But this denial aside, the argument that taking up arms against the United States, when that act falls short of treason, requires a sentence more severe than the one provided in the statute is an argument properly addressed to Congress, for while 50 U.S.C. § 1705 broadly proscribes supplying services to certain of this country’s adversaries, there is no statute that specifically proscribes taking up arms against the United States and imposes specific appropriate punishments, including perhaps loss of American citizenship. In any event, it is clear that defendant’s specific conduct in this case fits well within the charging statutes and it is equally clear that his resulting punishment fits well the crimes the evidence reflects he committed.

He similarly dealt with calls for more leniency.

Although young, defendant was legally an adult at the time of the offenses. And, like all adults, defendant must take responsibility for the choices he made. To those who claim that defendant was merely fighting for something that he believed in, it is well to remember, as the Court advised defendant at sentencing, that there is no virtue in fighting for a belief unless that belief is itself virtuous.

El-Masri v. United States

3. Judge Ellis’ rulings on motions are sustained on appeal because he gets the law right.

From the appellate decision in the Fourth Circuit (emphasis added):

In his Complaint in the Eastern District of Virginia, El-Masri alleged that the defendants were involved in a CIA operation in which he was detained and interrogated in violation of his rights under the Constitution and international law. The United States intervened as a defendant in the district court, asserting that El-Masri’s civil action could not proceed because it posed an unreasonable risk that privileged state secrets would be disclosed. By its Order of May 12, 2006, the district court agreed with the position of the United States and dismissed El-Masri’s Complaint. See El-Masri v. Tenet, 437 F. Supp. 2d 530, 541 (E.D. Va. 2006) (the “Order”). On appeal, El-Masri contends that the district court misapplied the state secrets doctrine and erred in dismissing his Complaint. As explained below, we affirm.

The court then rehearsed the relevant facts leading up to the appeal. The rest of the opinion was a fresh review of the applicable law, arriving at the same conclusions as Judge Ellis.

We review de novo a district court’s “legal determinations involving state secrets,” including its decision to grant dismissal of a complaint on state secrets grounds. Sterling v. Tenet, 416 F.3d 338, 342 (4th Cir. 2005).

United States v. Franklin, Rosen, and Weissman

4. Judge Ellis is not cowed by prosecutors’ claims of national security.

5. He will not be blinded by withheld or redacted documents, and ensures the defense can put on an effective case.

From the Fourth Circuit opinion upholding Judge Ellis’ rulings on the motions (emphasis added).

The operative indictment … asserts that between 1999 and 2004, the defendants obtained national defense information from various sources within the United States government and unlawfully passed that information to other AIPAC staffers, foreign officials, and members of the news media. In this interlocutory appeal, the government challenges the district court’s pretrial evidentiary rulings on the handling at trial of classified information. The defendants have moved to dismiss the appeal for lack of jurisdiction. As explained below, we deny the motion to dismiss and affirm the challenged evidentiary rulings.

In denying the motion to dismiss, made by the defendants, the appellate court upheld Judge Ellis’ ruling on that motion. In the same way, the higher court affirmed the evidentiary rulings Judge Ellis made against the government. The Fourth Circuit panel explained how the evidentiary issue was decided by Judge Ellis (emphasis added).

The district court’s evidentiary rulings were made pursuant to the Classified Information Procedures Act, 18 U.S.C. app. 3 §§ 1-16 (“CIPA”).
…
Here, Rosen and Weissman gave notice to the district court and the government, pursuant to CIPA § 5(a), that they expected to disclose at trial a large volume of classified information. The government promptly moved, pursuant to CIPA § 6(a), for a hearing on the use, relevance, and admissibility of the classified information at trial. The court, after conducting such a CIPA hearing, determined that a substantial volume of the classified information was indeed relevant and admissible.

[…]During a CIPA hearing conducted over the course of twenty-two days in 2007 to address the government’s § 6(c)(1) motion, the court ruled that, although some of the government’s proposed redactions were acceptable, other such redactions would not afford the defendants the same opportunity to defend themselves as would the admission of the unredacted documents containing classified information. In some instances, the court concluded that less extensive redactions, or the use of replacements for particular names, places, or terms, would adequately protect the defendants’ rights while simultaneously offering adequate protection for classified information. The court thus directed the parties to fashion substitutions for the classified documents in accordance with the oral rulings it made during the hearing. Thereafter, the court entered an order adopting the parties’ agreed-to substitutions, over the government’s objection.

So, a judge who applies the law as he finds it, and is upheld by the Fourth Circuit, has been skeptical of government claims of necessary redaction, and supportive of defense claims the hidden material was relevant to an effective defense. Even in the very politically charged “American Taliban” case, Judge Ellis applied the law, as he found it, to the facts in determining the sentence. An impartial judge, with the relevant experience, has control of the Manafort case, and he writes in a way that the public can understand.

I invite those with criminal trial experience to comment on Judge Ellis’ relevant cases; any read from his past cases into this case?