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One week after a Senate committee approved a bill to protect the special counsel from being fired by the president, both of Robert Mueller’s high-profile cases appear to be in legal jeopardy.
On Friday morning, a federal judge accused Mueller’s team of weaponizing its prosecutorial authority in an effort to take down Donald Trump. U.S. District Judge T. S. Ellis III suggested the special counsel’s case against Paul Manafort, Trump’s former campaign manager, is “about what information Mr. Manafort can give you to lead you to Mr. Trump and an impeachment. President Trump’s prosecution or impeachment—that’s what you’re really after.”
ABC News reported that Ellis, a 30-year veteran of the federal bench, repeatedly criticized the 18-count indictment against Manafort for bank fraud and tax evasion as being unrelated to Mueller’s initial directive, which was to investigate alleged collusion between the Trump campaign and the Russian government before the 2016 presidential election.
Ellis pointed out that “the allegations clearly pre-date the appointment of the special counsel. None of it had any relation to the campaign.” He ascribed ulterior motives to Mueller’s investigation: “You get somebody in a conspiracy and then you tighten the screws. I’ve been here awhile, the vernacular is ‘to sing.’”
Justice is Stonewalling
Judge Ellis also might prevail where Congress has so far failed: Obtaining an unredacted version of Deputy Attorney General Rod Rosenstein’sAugust 2017 memo that purportedly widened Mueller’s powers to include non-collusion crimes against Manafort.
On Monday, the Justice Department—citing “long-standing principles of investigatory independence”—declined a request by Republican lawmakers to see a clean copy of the largely blacked-out memo. The dispute devolved into a war of words this week between Rosenstein and some GOP leaders amid impeachment threats and accusations of extortion.
But Ellis gave Mueller’s team two weeks to furnish the unredacted memo or justify why they would not. When prosecutors tried to explain that the unredacted version would divulge sensitive national security and counterintelligence information, Ellis accused the Justice Department of “not really telling the truth,” and mocked Mueller’s lawyer for “we said this was what [the] investigation was about, but we are not bound by it and we were lying.” The Reagan-appointed judge admonished federal prosecutors that “no one has unfettered power” and asked whether the special counsel’s office had already spent its $10 million budget. Prosecutors refused to answer.
It’s not the first time Ellis has raised questions about the legitimacy of the charges against Trump’s one-time campaign chief. During a hearing in March, Ellis noted that the case “doesn’t have anything to do with the Russians or Russian interference in the election.”
And Ellis isn’t the only federal judge recently to have recently expressed skepticism about Mueller’s apparent overreach. U.S. District Judge Amy Jackson Berman also challenged Mueller’s authority during a court hearing on a separate Manafort lawsuit last month.
Where’s the Evidence?
Friday’s judicial spanking is just the latest embarrassment in the government’s case against Manafort. AsThe Federalist’s Mollie Hemingway reported, Mueller’s office cannot provide any evidence that Manafort communicated with Russian officials, even though rumors to that effect have been leaked to the media on several occasions over the past 16 months.
In an April 30 filing, Manafort’s lawyers revealed, “the Special Counsel has not produced any materials to the defense—no tapes, notes, transcripts or any other material evidencing surveillance or intercepts of communications between Mr. Manafort and Russian intelligence officials, Russian government officials (or any other foreign officials). The Office of Special Counsel has advised that there are no materials responsive to Mr. Manafort’s requests.” The filing also suggests that the orchestrated and unverified leaks to the media were “intentionally designed to create a false narrative in order to garner support for the appointment of a special counsel.”
Mueller is, of course, no stranger to using targeted media leaks to sway public support to his side.
In 2008, Steven Hatfill, a federal scientist wrongfully pursued by Mueller’s FBI in the 2001 anthrax attacks, was awarded a $5.8 million settlement by the agency, which used the media to harass him personally and destroy Hatfill’s reputation.
Dragging Out Flynn’s Case
Mueller’s case against Michael Flynn, Trump’s former national security advisor, also looks shaky. On Tuesday, Mueller asked Judge Emmet Sullivan for a 60-day delay in sentencing Flynn “due to the status of the Special Counsel’s investigation.”
Flynn pleaded guilty in December 2017 to one count of lying to federal investigators but the case has taken some odd twists since then.
Just a few days after the plea was entered, the judge on the case, Rudolph Contreras, was abruptly recused (or recused himself) and replaced with Sullivan. (Reports later emerged that Contreras served on the FISA court at the time the FBI received a warrant to spy on Carter Page, and Contreras was mentioned in text messages between Lisa Page and Peter Strzok.)
On December 12, Sullivan ordered Mueller’s office to turn over “any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment,” as well as “any information which is favorable to the defendant but which the government believes not to be material.”
In February, Sullivan upped the ante, requesting that Mueller furnish any exculpatory evidence the prosecutors possessed during Flynn’s plea negotiations. As Margot Cleveland wrote for The Federalist, “the change was significant because it indicates that, if the government did not provide Flynn material evidence during plea negotiations, Flynn has grounds to withdraw his plea.”
Sentencing was delayed until May 1, which is when Mueller asked for another two-month extension. It’s hard to gauge exactly what the delay means, but one would think a special counsel would be eager to claim at least one solid victory in a year’s worth of work.
A Firing Offense?
None of these setbacks seems to have subdued Mueller’s hubris and prosecutorial zeal. Yesterday, Mueller asked for 70 blank subpoenas related to the Manafort case. This is in addition to the 35 subpoenas he’s already requested. A list of questions Mueller wants to ask the president circulated this week, as he continues to make the public case that Trump should face federal prosecutors.
But why would Mueller be circumspect? Not only has his investigation received little criticism or scrutiny in the mainstream media, he even has Republicans such as Senators Lindsey Graham (R-S.C.) and Thom Tillis (R-N.C.) backing him full force. NeverTrumpers have formed a group called “Republicans for the Rule of Law” and are buying pricey television ads warning lawmakers to “protect the Mueller investigation.” Rosenstein seems to be running cover for him in the Justice Department.
If the judge dismisses Manafort’s case, Mueller justifiably could be fired. According to the federal statute, a special counsel can be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” Bungling his biggest case because he exceeded his given authority then tried to obfuscate that fact from the court would certainly meet some of that criteria.
Perhaps Judge Ellis will put an end to this national nightmare before Trump or Sessions has to.
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Photo credit: Saul Loeb/AFP/Getty Images