Below is my column in The Hill newspaper on the controversial comments of Judge T.S. Ellis III. While I viewed that insinuations about Mueller’s motivations to be inappropriate, there is a real question concerning the different and still fully explained difference in treatment of the Manafort and Cohen cases.
Here is the column:
Donald Trump finally found a federal judge to whom he could relate. Judge T.S. Ellis III on Friday blasted prosecutors from special counsel Robert Mueller’s office as using their case against former Trump campaign manager Paul Manafort to get at the president for either an indictment or an impeachment. Trump declared Ellis to be “really something very special” in showing that this is nothing more than a “witch hunt.”
While reluctant to say so publicly, many lawyers would find Ellis’s comments “special” in the sense of being especially problematic from a federal judge. There is a legitimate concern in how Mueller has treated different cases, but the judge seemed to focus more on the special counsel’s motivation than on his mandate.
In the hearing in Virginia, Ellis cut off the prosecution by declaring, “Come on man!” and “You don’t really care about Mr. Manafort. You really care about what information Mr. Manafort can give you to lead you to Mr. Trump and an impeachment, or whatever.” There are times when a judge legitimately can raise the motivations of prosecutors in addressing cases of possible prosecutorial abuse or selective prosecution. However, Manafort is accused of a myriad of fraud and other crimes. Even if he is viewed as a means to another end, it would not change the basis for the charges that he faces.
I have been critical of judges who departed from the normal record in immigration cases to rely heavily on Trump’s tweets and public comments to rule against the administration with regard to the travel ban. The president has been particularly vocal in denouncing such judges as pursuing issues removed from the narrow questions of authority to issue executive orders. Now, however, he is praising a judge who is raising the same type of extrinsic motivational evidence.
The greater irony, however, is that the objection by Ellis that “no one has unfettered power” is a legitimate concern, but not with regard to the authority to bring this prosecution. Mueller clearly has the authority to pursue Manafort under the mandate written, and later expanded, by Deputy Attorney General Rod Rosenstein.
Rosenstein had the authority to expand the original mandate, and Ellis primarily made his comments to challenge not the basis of the charges but whether they should simply be handled by the local U.S. attorney as opposed to the special counsel. That is a precious distinction for Manafort: It may matter whether a deer is shot by a hunter with or without a permit, but not to the deer itself.
The real question is the inherent and glaring conflict in how both Mueller and Rosenstein have defined that mandate. Manafort’s alleged crimes are far removed from the original mandate of Mueller, removed in both fact and time from the presidential campaign or Trump. Nevertheless, both Mueller and Rosenstein approved dozens of counts against Manafort for bank fraud, tax violations and other crimes related to his lobbying for the government of Ukraine years before the campaign. The special counsel alleges that Manafort laundered millions of dollars and hid incomes by moving funds around the world, in places such as Cyprus, the Seychelles, Saint Vincent and the Grenadines.
Ellis is certainly correct that there is little reason for a special counsel to handle such a prosecution and that Mueller wants Manafort under his thumb to pressure him to turn on Trump. Yet, once again, Rosenstein has approved the prosecution, and he is entitled to make such a determination. The real question, however, is why such unrelated crimes would clearly fall within Mueller’s mandate but not the charges against Trump’s personal counsel, Michael Cohen. If anything, Cohen’s alleged crimes fall closer to the original mandate.
The prosecutors are seeking, in addition to evidence of unrelated crimes like fraud and taxi medallion violations, material linked to the payment of money to former porn star Stormy Daniels and former Playboy model Karen McDougal shortly before the election. Those payments were allegedly linked to the election, referenced in the Mueller mandate, and directly involve actions by Trump and his campaign associates. Yet, Rosenstein decided that those crimes could not be pursued by Mueller and sent the case to the Southern District of New York. Why?
The answer is clearly not based on the underlying crimes or the special counsel’s mandate. It appears based on simple political necessity. By transferring the Cohen investigation to New York, Rosenstein made it materially more difficult for Trump to scuttle the investigations of his associates. Even if Trump fired Rosenstein and Mueller, he would need to do the same with prosecutors in New York, in order to stop all of the investigations touching on his campaign.
Moreover, by giving the Cohen matter to career prosecutors, Rosenstein deflected questions over the scope of the special counsel’s mandate crossing Trump’s previously declared “red line” of personal or business dealings. With the transfer of that case, Trump now faces prosecutions under the special counsel and separate career prosecutors in three different jurisdictions, as well as the growing threat of state prosecutions. In other words, Rosenstein took out a legal insurance policy by first broadly defining Mueller’s mandate with Manafort, and then narrowly construing the mandate with Cohen.
Ellis is, therefore, correct that none of this makes much legal sense. It also shows that Mueller and Rosenstein are making prosecutorial decisions on the basis of political, not legal, priorities. There is no other obvious explanation for the different decisions made in the two cases. Mueller and Rosenstein’s motivation — to guarantee the survival of the investigation — may be laudable, but it is also undeniably strategic and, ultimately, irrelevant. Mueller is also “really something very special” as counsel. He can go anywhere that his mandate takes him.
The degree to which Mueller is “fettered” in his targets is not determined by Ellis but by Rosenstein. If Rosenstein expands his mandate, his motivations become less material. Even if Ellis finds the second order from Rosenstein to Mueller to be insufficient, it would merely result in a new order or, at most, simply the appointment of local prosecutors. As for Manafort, saying that you are being pursued by the wrong cops does not mean that you are being pursued for the wrong crime. He will remain a target in an environment ripe for prosecutors, whoever they may be.