Tale of Two Cases: Manafort and Cohen Cases Stand In Glaring Contradiction

600px-US-DeptOfJustice-Seal.svg DOJBelow 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.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

136 thoughts on “Tale of Two Cases: Manafort and Cohen Cases Stand In Glaring Contradiction”

  1. What a lot of words below. So little information below…

      1. Naturally lefty dopes and dupes like you support Mueller and other human trash. ‘Nuff said.

        1. Did you say “dupe?”

          Attorney General Jeff Sessions, “…a dupe which will live infamy.”

          “Car 54, Where Are You?”

          Jeff Sessions, where are you?

  2. A few thoughts on this column:

    You conflate what goes on in oral argument with what a judge is really thinking or stating as law. In the colloquy between lawyer and judge, the judge is at liberty in a Socratic way to put lawyers’ feet to the fire of their positions by raising all kinds of issues, questions, surmises, and hypotheticals. It’s for counsel respectfully to stand up to a judge who’s gone over the line.

    Besides how far afield did Ellis go in his characterizing Mueller’s motives? The motion here asserting no jurisdiction explicitly or patently implicitly is accusing the Special Counsel of bad faith in the exercise of prosecutorial discretion. Given that, how far flung is the judge’s speculative ascription of Mueller’s motivation, however thin Manafort’s argument on that score may be? Ellis is simply doing what many engaged judges in oral argument do: putting in the baldest terms the other side’s case to arguing counsel.

    Finally, don’t you at the end of your column come round to what Ellis was getting at, bad motivation—political motivation, shake down motivation, other unlovely motivation—in the disparate approaches to Manafort and Cohen? If so, I see you undercutting the criticism of Ellis’s concern with prosecutorial motivation with which you begin your column.

    1. Absolutely correct. The SCOTUS justices and appellate court judges do this all the time in oral argument. What they’re doing is testing the weaknesses of a party’s case. Well-prepared attorneys anticipate such questions and comments, and they respond respectfully to counter such potential or perceived weaknesses. Mueller’s team, however, demonstrated neither preparation nor respect. In so many words they told Judge Ellis to take a jump in the lake and that they had greater powers behind them and could care less what Judge Ellis thought.

    2. So you’re saying

      (a) you found the “Russian collusion”


      (b) the People can know the facts but must accept the corruption?

      Fun fact: That’s what John Roberts said. You can know that the Constitution precludes Obamacare but you have to accept it because I and the “deep state” are superior to you and your ethereal “freedom.”

      You sound like a self-absorbed judicial type at the hooka pipe in Alice in Wonderland.

      Allow me to bring a couple facts to your attention.

      Half the DOJ/FBI leadership has been reassigned or fired and some are awaiting adjudication.

      The current leadership of the DOJ/FBI is literally under threat of contempt of congress and impeachment.

      Yep. We’ve got trouble right here in River City and it’s not procedure, it’s subversion.

      Here are some words of wisdom which might bear not on the imposition of repression but on the search for justice:

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton

  3. OT,

    So Donald,

    Next up– your, MBS and Bibi’s false flag. What a brave man you are, ready to kill others from the safety of your various bunkers, while never having served in the military yourself.

    I just talked to a man today who said he wanted his legacy to be trees and gardens. All you can think about is killing people so you can pay off your business debts with Bibi’s and MBS blood money. What a great legacy you have.

    You all have told enough lies so I’m not so sure more lies, even with your willing MSM minions ,will keep working on our population.

    You could have been a contender. You could have made America great. Instead, you just wanted the money and the power and you really don’t care if the whole world is a shithole when you’re done. Sad, very sad.

    1. Jill, Only IslamoCommuNazis think that the Iran “deal” is good for anybody, except Iran. Even your pro-Islam Lefties at Huffington understand that Iran has been violating the so-called “deal” for some time. https://www.huffingtonpost.com/majid-rafizadeh/iran-breached-the-nuclear_b_9977768.html

      Of course, after President Trump put his foot down and drew a line in the sand for North Korea, you, of course, said that Trump was going to get the USA in a nuclear war. But the opposite has happened and North Korea is getting serious about negotiations for the first time in history, thanks primarily to Donald Trump. Trump is trying to undo the messes created by Obama and your beloved Lefty Establishment. And he is succeeding, even with Mueller’s obstruction of Executive Office.

      1. Ralph, only RWNJs think like you.Wally said all that needs to be said.

    2. All you can think about is killing people so you can pay off your business debts with Bibi’s and MBS blood money. What a great legacy you have.

      Smedley Butler meets the Elders of Zion. Thanks for the bile. It’s been an education.

      1. Smedley Butler knew precisely of what he spoke. He admitted the he led armies for imperialists and corporations.

        1. So, what’s your solution? Nuke Iran? Invade Iran? Ignition Iran?

          Obviously, you’ve never had incoming.

        2. Smedley Butler knew precisely of what he spoke.

          Smedley Butler was a nutty crank who appeals to other nutty cranks, of whom there are always too many.

  4. The Fact of the Day:

    Michael Avenatti, attorney for the “Anal Queen,” has appeared on CNN at least 65 times in the last 2 months.

    To call CNN pressitutes would be an understatement.

  5. If there are any attorneys on this blog, please tell us if cases are ever thrown out due to technical/procedural errors by prosecutors.

    Regarding Manafort’s claim of “being pursued by the wrong cops,” as Professor Turley phrases it, and the severe admonitions by Judge T.S. Ellis III of Mueller’s team, it would seem that a fraudulent appointment of a special prosecutor without a crime or probable cause and the subsequent investigation of a person not a crime constitute abuse of power and malicious prosecution which are crimes and crimes of high office and grounds for dismissal.

    Professor Turley, can you see the forest for the trees? This entire “Mueller Inquisition” is not only a gross miscarriage of justice, it is weaponization of the DOJ/FBI as corruption at best, and subversion as a coup d’etat at worst.

    “We are five days away from fundamentally transforming the United States of America.”

    – Barry Soetoro

    Speaking of a coup d’etat, if Moochelle Obama is America’s “Forever First Lady,” is Obama America’s “Forever President?” Let’s ask John Kerry, Hillary, Clapper, Brennan, Comey, McCabe, Wray, Rosenstein, Lynch, Rice, Strzok, Page, Baker, Power, Yates, Ohr, Steele, Simpson, Farkas, Huma, Lerner et al. if they are “America’s Forever Administration.”

    1. Is it the Department of Justice


      the Department of Repression?

      1. Political enemies of Trump have used a contrived accusation(one paid for by political opponents) that Trump colluded with Putin in order to target him and anyone around him. The DOJ then trawled through the lives of Trump’s associates to find whatever they can find…none of which having to do with their original false allegation. These are the acts of a tyrannical state and half our population is cheering.

    2. You might be onto something here, George. Maybe Kerry et al truly believe that Obama never stopped being president, so they’re all free to continue to do his will?

  6. Mueller might have the authority under the mandate written by Rosenstein, but does he under the SC Law ?

    Elliot might not have the authority to dismiss the charges, based on that, but he may have the authority to kick them from Mueller’s office.

    Elliots attack is about more than the motivations of the prosecutor.
    There is alot about the very poor quality of the charges.

    Asking a defendent to defend themselves against technical charges that are more than a decade old is highly dubious.

    I think Elliot is saying more than “You are trying to get Manafort to Roll on Trump”.

    I think Elliot is saying “You have alot of very very serious charges that could jail Mr. Manafort for the rest of his life, but not alot of substance to support them.”

    It is one thing to try to roll a contract killer on those who hired them.
    It is something entirely different to try to use dozens of 20 year old unpaid parking tickets,

    Elliot is attacking ALL of Mueller’s case.

    He is saying the wrong prosecutor is prosecuting a flimsy case, with high risk to the defendant in the hope that the defendant will roll, when we do not even know that the defendant has any real crime to offer.

    The scope matters because – absent a serious claim against Manafort involving Russian collusion there is little reason that Manafort has knowledge of Russian collusion to provide Mueller.

    Getting a defendant to sing is one thing, pushing them to compose is improper.

    1. It’s interesting that when Ellis posits multiple times (and confrontationally so) on the “real” reason for the indictment, the prosecutors never even bothered to counter in the slightest. Granted, I’m sure they didn’t want to go anywhere near that path but also they would have little to stand on as a matter of deductive reasoning.

      Also of interest in the Manafort indictment is the allegation that despite multiple and prominent leaks to the contrary, SC apparently has no evidence of communications between Manafort and foreign officials.

    2. First of all, I have absolutely no problem with an investigation into Russian collusion, as long as it follows all leads and evidence discovered in the process. That being said, how is it that the scope of Mueller’s investigation can be so broad as to chase 10 year old crimes seemingly unrelated to collusion with Russia, but be so narrow as to ignore the evidence regarding the Clinton side of the ledger?

      Now I know some knucklehead will comment about Faux News, Hannity, tin foil, or some other mindless effort to deflect from answering the question. The bottom line is if you replaced DNC with RNC and Trump with Clinton in the evidence identified to date, Trump would no longer be in office and likely behind bars.

  7. Manafort may have been investigated by DOJ before Mueller took over, but there was no indictment. Why not? Why did it only come from a Special Counsel whose appointment is seriously stained by political motives. The question becomes why SHOULD Rosenstein have the power to make Mueller’s authority limitless. It raises the possibility that there never was a “crime” until it became politically useful to make it one.

    1. Maybe it’s because Manafort was Trump’s freaking campaign manager [when the only change in the GOP platform was to make it more Russia friendly regarding Ukraine] . Makes you wonder why, in gargantuan Manhattan, Manafort just happened to have an apt. in freaking Trump Tower. Makes you wonder why the GOP INtel committee refused to investigate who Donald Trump, Jr., called immediately after the Trump Tower meeting with Russians, including Manafort [reason is they didn’t want to know].

      Maybe the Mueller team had a pretty easy time connecting some pretty big dots here.

      Some of y’all really have to work hard to stay alive while your head and your brain are buried three feet deep in the sand.

      1. You’re running that hamster wheel to persuade yourself that there is something nefarious in strings of unremarkable things. He rents an apartment from the Trump Organization! He worked for the campaign for three months! There was an inconsequential change in the Republican platform! Yeah, and?

        1. If it walks like the mob, if it talks like the mob, if it launders money like the mob, if it commits bank fraud like the mob, if it pays hush money like the mob, if it threatens people like the mob, if it hangs out with other mobsters like the mob,

          It’s a…………….. duck. Is that your argument??

          1. Now you’re reduced to telling all of us of what some undefined entity reminds you. Sorry, the issue of your imagination interests only you.

            1. It clearly interests you or else you wouldn’t have responded – twice. And the mafia is pretty clearly defined and guess which goodfellas meet the criteria??

              Anyhow, I’m tired of toying with you so au revoir.

      2. Some pretty big dots? I haven’t seen a single piece of evidence of actual collusion. Not one. Zilch. That’s the problem with this whole “investigation.”

        1. He’s not even ‘connecting the dots’. He’s just listing dots, as if that was even a thesis.

          And the trouble with ‘connecting the dots is that the dots are just dots. You’re the one drawing the picture. (See Bill McWilliams for where this leads you).

        2. You think the problem with the whole investigation is that YOU, some guy whose name might or might not be Ivan, thinks he’s entitled to have access to evidence in an ongoing criminal investigation??

          Bless your heart. That’s pretty dumb. Call up the FBI and see if Mueller will have lunch with you and maybe he’ll give you a piece of evidence for dessert.

  8. Isn’t it possible that Cohen is being investigated by both the Special Prosecutor as well as the SDNY? If Meuller’s team found evidence that Cohen was breaking the law about some matters that didn’t relate to Russia or Trump they could refer this to the SDNY but still also be investigating Cohen themselves as it relates to Russian collusion, no?

    1. Maybe..There may be some collateral damage fallout to Meuller & SDNY.

      The new problem is NY AG, Eric Schneiderman & 4 women who accuse him of:

      Mr. Schneiderman slapped, choked or spat on at least four women with whom he had been romantically involved, two of whom spoke on the record. The horrific accusations included alcohol-fueled rages, racist remarks, drug abuse and threats — including to kill the women or use his power as the state’s top law enforcement officer against them if they defied him.

      1. Not a problem at all. He has resigned and been replaced by a well-regarded and experienced lawyer, Barbara Underwood, until the election. The AG is largely a political position so the legal work continues on being done by all the members of the AG office. Shouldn’t impact any NY investigations on related issues at all.

        BTW, it was the great New Yorker magazine’s reporters, Jane Mayer and Ronan Farrow, who broke yet another story about this topic. Kudos to them and thank you, lord, for our media holding the powerful to account.

        1. replaced by a well-regarded and experienced lawyer, Barbara Underwood,

          Well-regarded by whom?

          She’s actually in a subordinate position. If previous experience holds, it’ll take a few months for the legislature to choose a replacement and to arrange for that person to take office. They’re either looking for a seat warmer who will leave office at the end of the year (in which case they might choose her; she’s actually past normal retirement age) or for someone who might run in November.

  9. It was cute the other day when Mueller’s minions were arguing that they couldn’t proceed with the case against one of their Russian defendants because the defendants hadn’t been properly served. Counsel for said defendants were right there in court ready to proceed.

      1. mespo – And they are not waiving their right to a speedy trial. 😉 They want all the evidence!!!!! Now!!!!

          1. mespo – this is going to cause no end of problems for Mueller and his team of Democrats.

              1. mespo – I am waiting to see if Ellis gets the unredacted memo. 😉

                1. Dreeben already said he’d give Ellis the un-redacted memo. Ellis gave Dreeben two weeks to get it done. They have a SCIF at the EDVA Court in Alexandria. They preside over CIPA cases every now and then. Ellis presided over the trial of John Walker Lindh that led to a guilty plea. CIPA is not going to do Manafort any good at all.

                  1. Dreeben already said he’d give Ellis the un-redacted memo.

                    He didn’t.

                    1. Judge Ellis gave Dreeben two weeks to produce the un-redacted memo. Do you seriously expect Dreeben to defy the Court’s order? Judge Amy Berman Jackson had already been given the un-redacted memo in Manafort’s civil suit in The District of Columbia. The same civil suit that she tossed out. The un-redacted memo is likely to lead Judge Ellis to deny Manafort’s motion to dismiss.

                  2. Annie/Inga – there is a long way between talking and actually producing.

                    1. Enjoy your Judge Ellis dismissal fantasy while it lasts, Caviler.
                      Manafort is headed for a CIPA trial in EDVA that he’s likely to lose.

                    2. Manafort is headed for a CIPA trial in EDVA that he’s likely to lose.

                      I’m sure the U.S. Attorney is supremely confident, which is why his office and the Tax Division have been twiddling their thumbs for 12 years.

        1. In the first place. there is no discovery process before arraignment.

          In the second place, the Bill of Particulars that Concord’s lawyers requested includes discovery of both signal intelligence and human intelligence. And that’s a direct Russian assault on the sovereignty of The United States of America. Classified evidence requires the invocation of CIPA. Putin doesn’t get to hire the law firm of Boris and Natasha to peek at our signal intelligence and report back to Fearless Leader so that Putin can order “wet work” against our intelligence assets in Russia and elsewhere in the world–say The United Kingdom, for instance. Why would any American cheer Putin on?

          In the third place, The United States of America does not try people in absentia. That’s what the Russians do. Why else would the Russians expect–nay, demand–to be tried in absentia?

          Finally, there is no discovery process before arraignment. You want to peek at Mueller’s cards, you have to surrender to the custody of a Court of the United States.

          P. S. Who are you people, really???

          1. Annie/Inga – I am part of the Deep State, that is who I am, really!!!! Who are you???? Really?????

          2. Rule 43. Defendant’s Presence

            (a) When Required. Unless this rule, Rule 5, or Rule 10 provides otherwise, the defendant must be present at:

            (1) the initial appearance, the initial arraignment, and the plea;

            (2) every trial stage, including jury impanelment and the return of the verdict; and

            (3) sentencing.

            (b) When Not Required. A defendant need not be present under any of the following circumstances:

            (1) Organizational Defendant. The defendant is an organization represented by counsel who is present.

            1. So because Prigozhin and Concord are organizational defendants, they could be tried in absentia. But the remainder of the process–including, especially, arraignment–continues in the defendant’s absence. And that still means no discovery process before arraignment.

              1. Annie/Inga – everyone and entity can be tried in absentia or default. Wasn’t that Polish child rapist tried sentenced in absentia when he fled the country?

                  1. Annie/Inga – Polanski fled before sentencing fearing prison time and deportation.

                    1. Sentencing typically occurs after trial, which typically occurs after arraignment. You have refuted precisely nothing as usual, Caviler.

                    2. Annie/Inga – at his arraignment, Polanski plead not guilty to all charges but later entered into a plea agreement. However, when it came time for the actually sentencing, it became apparent the judge might throw out the plea deal and sentence him to prison time plus deportation. He fled the country. Does that make you feel better?

                  2. Annie/Inga – Polanski fled before sentencing fearing prison time and deportation.

                    1. BTW, the letter of appearance the Concord lawyers filed is not an arraignment. There was no plea entered on behalf of the defendants. Defendants can’t force discovery before defendants are arraigned. And defendants haven’t been arraigned until defendants enter a plea.

            2. Annie/Inga – Rule 43 was complied with. Did you have some other point?

                1. Annie/Inga – the attorneys appeared at the arraignment for their clients. Then filed a flurry of motions on the prosecution. Whoever is defending Concord knows what they are doing.

                  1. What plea did the defendant enter?
                    No plea, no arraignment.
                    No arraignment, no discovery.
                    In order to invoke CIPA discovery, the defendant has to proceed to trial.

                  2. Defendants do not get to force discovery of classified evidence without invoking The Classified Information Procedures Act. Demanding a Bill of Particulars is NOT a valid request for classified evidence. The discovery process is intended for trial preparation. The lawyers for Concord Management have to enter a plea and proceed to trial in order to invoke CIPA discovery. The entire trial then has to take place in a Secure Compartmentalized Information Facility.

                    1. Annie/Inga – you are assuming the evidence is classified. There is no indication of that, only that the memo is classified.

                    2. Now you’re confusing Judge Ellis and Manafort with Judge Dabney Friedrich and Concord Management and Consulting. Different indictments. Different defendants. Different Judges. Different jurisdictions.

                      Eric Dubelier and Katherine Seikaly entered a not guilty plea on behalf of Concord Management and Consulting yesterday, Wednesday, May 9th, 2018–the one year anniversary of Trump’s disastrous decision to fire Comey. So now the defendant has been properly arraigned. The next hearing is on May 16th, 2018, before Judge Dabney Freidrich. Jeannie Rhee for the OSC is either going to get a protection order at that hearing or begin the application for CIPA at trial, or both.

                      The Bill of Particulars and other discovery motions previously filed by Dubelier and Seikaly include requests for both signal intelligence and human intelligence. So, no, I’m not assuming the evidence is classified. The lawyers for Concord Management and Consulting are assuming the evidence is classified. They’re probably right. Meanwhile, Judge Ellis wants the un-redacted version of Rosenstein’s August 2nd memo because he has reason to believe that classified evidence from the FISA warrants on Manafort form the basis for expanding the OSC’s mandate to include Manafort’s previously investigated financial crimes. If so, then Judge Ellis is likely to invoke CIPA for Manafort’s trial in EDVA whether the OSC wants it or not. I’m convinced that a CIPA trial is the just about the last thing Manafort wants.

    1. Yeah, they were ready to proceed with a motion to dismiss for insufficient service of process, either at that hearing or later on, when they’d argue that there is no personal jurisdiction and they entered a “special appearance” only to challenge jurisdiction. Been down that road. They know what they’re doing.

  10. Now you’re complaining a federal judge isn’t playing nice with the lawyers. Evidently it’s of no interest to you that Mueller secured indictments on offenses which supposedly occurred over a decade earlier (aren’t they time barred and haven’t they been examined by prosecutors before?) and that Michael Dreeben insisted to the judge that the unredacted copy of Mueller’s mandate was a state secret the judge wasn’t permitted to see.

    The answer is clearly not based on the underlying crimes or the special counsel’s mandate. It appears based on simple political necessity.

    Incorporated into that is an insight you’re determined to not acknowledge: that none of this has to do with actual offenses against the law by Trump or anyone else. (You get a point for acknowledging implicitly that Rosenstein and Mueller are conspiring against the President).

  11. I’ve read this post twice and the only conclusion I can draw is that JT feels strongly both ways. Either Ellis is right to question Mueller’s witch hunt or he’s not. Telling is Ellis’ question to Mueller’s gang that “Rosenstein’s recused, right? “ Ellis know he’s not but he’s sending a clear shot over the bow here. Federal judges are permitted to comment on the evidence. Ellis, who practiced here in Richmond for 20 years or so, said a mouthful. It’s time to quit distracting the leader of the free world with this nonsense and let him get about the business of safeguarding our lives and fortunes. Ex-Navy Ellis apparently thinks that way, too. Bravo.

    1. JT’s post is legal whiplash. We could also use his deer analogy to characterize the Ellis v Turley criticism of this investigation: It may matter whether a deer is shot by a hunter with or without a permit, but not to the deer itself.

  12. “Mueller and Rosenstein’s motivation — to guarantee the survival of the investigation — may be laudable….”. “laudable” – really? What is laudable about Gestapo techniques and a creepy crawling investigation with no probable cause or specified crime to start with? Also, professor Turley omits some very relevant facts from his comments, for example: the special counsel mandate to ensnare Manafort was expanded after the Manafort raid; Muler resurrected a cold case investigation of Manafort dating back to 2005 to nab him; and the Cohen referral to Southern District of NY signals that Muler’s got nothing on Cohen as it relates to Trump-Russia collusion.

    1. Manafort’s lawyer, Downing, requested the written records known as Urgent Reports and Judge Ellis denied that request for two reasons: 1) it goes to the issue of prosecutorial discretion which is not the issue currently before Judge Ellis’s court; and 2) motions to suppress evidence would ordinarily be made and decided after motions to dismiss an indictment were made and decided.

      Meanwhile, Dreeben, for the OSC argued, again, that, since the conspiracy alleged against Manafort and Gates was an ongoing conspiracy that continued all the way up until the indictment was returned, therefore the older evidence gathered during the previous investigation of Manafort and Gates was integral to the OSC’s understanding of Manafort and Gates’ role in the Trump campaign.

      P. S. The redacted portions of Rosenstein’s August 2nd memo will likely spell that out for Judge Ellis. And, if Downing makes a motion to suppress evidence from the search of Manafort’s Alexandria home after Judge Ellis denies the motion to dismiss, then the Urgent Reports will most likely spell out both the probable cause for the search and the prosecutorial discretion leading to Rosenstein’s August 2nd memo.

      1. Dear Late, you seem to be betting on those unredacted memos helping the prosecution’s case. Ultimately a jury will have to decide Manafort’s fate if he fights on as he has indicated. If the procedural aspects of expanded special counsel ensnarement of Manafort are too complicated to explain/sell to a jury then no way to convince jury that this is not a witch hunt.

        1. You bet I’m betting. And so are you. It’s the same un-redacted memo that was given to Judge Amy Berman Jackson in the D. C. case against Manafort. I haven’t heard any crowing from Trump on the subject of how great Judge Amy Berman Jackson is. Have you?

          1. No need to bet when it is obvious by observation and analysis of facts that this is a witch hunt. To again quote Steve Marriucci: “Believe what you see”.

            1. Yours is a terrific example of confirmation bias.

              And Marriucci is a sports announcer so what the f*** does he know about anything that actually matters

              1. Dear Mr. CheckG, Confirmation bias? Facts laid out, logic. You are the one who has exhibited confirmation bias by responding with blind biased rejection, and no logical or original thought.

                1. Have you had your fetish for the letters LOGOS tattooed backwards on your forehead yet, Bill Martin?

                  1. Apparently I am not as clever or as cool as you Ms. Late and I have no idea what you are referring to. As it relates to your comment above – ignorance is bliss.

                  2. From Merriam-Webster:

                    Definition of fetish

                    1 a : an object (such as a small stone carving of an animal) believed to have magical power to protect or aid its owner; broadly : a material object regarded with superstitious or extravagant trust or reverence

                    b : an object of irrational reverence or obsessive devotion : prepossession

                    c : an object or bodily part whose real or fantasied presence is psychologically necessary for sexual gratification and that is an object of fixation to the extent that it may interfere with complete sexual expression

                    2 : fixation

                    3 : a rite or cult of fetish worshippers

        2. From an April 27th article in The Hill

          A federal judge on Friday tossed out former Trump campaign chairman Paul Manafort’s lawsuit challenging the scope of special counsel Robert Mueller’s investigation.

          In her decision, U.S. District Judge Amy Berman Jackson wrote that a civil suit is not the way for Manafort to challenge actions by the prosecutors who are working for Mueller’s office.

          “A civil case is not the appropriate vehicle for taking issue with what a prosecutor has done in the past or where he might be headed in the future,” wrote Berman Jackson, who was appointed by President Obama.

          “It is a sound and well-established principle that a court should not exercise its equitable powers to interfere with or enjoin an ongoing criminal investigation when the defendant will have the opportunity to challenge any defect in the prosecution in the trial court or on direct appeal.

          “Therefore, the Court finds that this civil complaint must be dismissed.”

          1. Dear Late: You are mired in procedural mumbo jumbo. At the end of the day, a complicated and confusing justification of an expanded scope (witch hunt) will not be bought by a jury or public at large. First Muler has to get past judges and then convince juries that he is some altruistic cop. And he also needs to sell to jury the justification of dawn nightgown/panty raid on Manafort with guns drawn. Not likely that a jury will look past retroactive scope expansion and Gestapo techniques.

            1. Bill Martin, methinks you’re forgetting about Manafort’s lavish life-style as a big spender. How many houses? That’s what’s going to get the jurors’ attention. Heaven help Manafort if EDVA can’t impanel twelve juror’s who were not foreclosed upon during the mortgage lending crisis.

              P. S. I’m glad to see that you, too, are ready for Manafort to go to trial.

              1. Annie/Inga – Manafort is going to need a change of venue regardless.

                  1. Annie/Inga – he has a right to try for a change of venue.

                    1. The way I read the transcript of the hearing, Judge Ellis is eager to preside at Manafort’s trial in EDVA and he’s not shy about CIPA either. What do you think Mr. Asonye was there for? It was Judge Ellis’s idea that Dreeben should consult with Asonye just in case the indictment is given to the U.S. Attorney for EDVA.

                    2. The way I read the transcript of the hearing,

                      Thanks for the wish-cast. It’s been an education.

              2. It is Manafort who has stated he is “ready” to fight this. So your counter to the facts and circumstances that I stated is that unrelated class warfare will compel jurors to lock up Manafort. So you are all for retroactive expanded special counsel investigation/Gestapo techniques AND locking up Manafort based on his lavish lifestyle. You can choose that way of thinking while I prefer to choose civil liberties for all.

                1. Bill Martin said, “It is Manafort who has stated he is “ready” to fight this.”

                  To Quote Judge Ellis, “Oh! C’mon man.” Manafort is asking the judge to dismiss the indictment against him.
                  But go ahead on and try to sell a jury on the notion that Manafort is just another one of the little people, rather than a big bad money-laundering bank defrauder and tax cheat. It could work. If you can get Manafort to wear a Brooks Brothers suit and Tom McCann shoes to court every day.

                  1. “Oh! C’mon man.” was part of rebuke by Judge of special counsel’s illicit motives. Civil liberties are about protecting everybody’s rights – rich, poor, black, white, hetero, trans, etc.

                    1. I think it was in response to Mr. Dreeben’s contention that Mueller’s commission was a state secret he could not divulge.

                    2. No kidding? You said that Manafort said that he was ready to fight in response to my claim that you, too, were ready for Manafort to go to trial despite the fact that Manafort is literally asking the judge to dismiss the charges against him. Oh! C’mon Man. You’re equivocating over the term to fight by filing a motion to dismiss the charges versus to fight by standing trial on the charges. Or else you just can’t follow the thread. Stay fluid, Bill Martin.

                    3. Annie/Inga – Manafort said he was going to fight the charges and he is. He is doing exactly what he said he would do. So far, Mueller looks like an idiot. Manafort might do time, but he is never going to roll over for Mueller.

                      And the Russians have thrown a huge monkey wrench into Mueller’s cogs. He thought that one was just going to be an easy win. Suddenly, up pops attorneys for the defendants’ corporation and they are demanding evidence.

                    4. I take fight to mean fight through validity of charges and all the way through jury trial if it comes to that. You are resorting to nit-picking here because you are on the wrong side a the big picture civil liberties argument. Late, you seem predisposed to seeing Manafort convicted at all costs, even if that means violations of his civil liberties which hurts all of us as a civil society. Muler boat is taking on water from many leaks – not just this one – and that seems to be frustrating you to no end. Keep looking for lefty articles and lefty logic to soothe yourself if that floats your boat. Good day Ma’am.

                    5. Bill,
                      L4D/Annie/Inga does not believe anyone has rights that do not come from government (no natural rights). So a civil liberty argument would be wasted on her.

                    6. L4D wants Manafort to sing like no canary has ever sung before.

                    7. Time to sign off for today. Tommorow is a big anniversary. And an even bigger anniversary comes just eight days after tomorrow. Toodaloo.

              3. Bill Martin, methinks you’re forgetting about Manafort’s lavish life-style as a big spender.

                Remember the supposed Leona Helmsley line, “We don’t pay taxes. Little people pay taxes”. ? After Helmsley was convicted, Ted Koppel has one of the jurors on his show along with reporters who covered the trial. One of the New York reporters is babbling on about how that line was the turning point of the trial and how that affected the jury. The juror was queried on that and he says, no, they didn’t pay attention to that. What they’d discussed was her actual tax returns and she’d been convicted on the documents submitted, not the oral testimony.

                1. Nii said, ” What they’d discussed was her actual tax returns and she’d been convicted on the documents submitted, not the oral testimony.”

                  You’re probably right that Manafort will get jurors like those. Chances are that most jurors fit that mold once the judge gives his or her charge to the jury. But the judge cannot seriously ask the jury to feel sorry for Manafort the way Bill Martin would have them do.

            2. Bill, to be sure, the very “mired in procedural mumbo jumbo” deceiver is Annie/Inga – for the purposes of brevity, Annie will do nicely. Don’t encourage the pretenders. “Don’t Feed the Bears” as they say in Jellystone Park.

  13. Turley wrote, “It also shows that Mueller and Rosenstein are making prosecutorial decisions on the basis of political, not legal, priorities.”

    That is similar to the argument made by Manafort’s lawyer, Downing, at the hearing before Judge Ellis. Downing requested Rosenstein’s notes prior to the August 2nd memo on the basis that Rosenstein is an inveterate note keeper, that Mueller and Rosenstein would have corresponded with one another prior to the August 2nd memo and that a record of the prosecutorial decision-making process [a.k.a. prosecutorial discretion] would therefore exist. Judge Ellis denied Downing’s request for discovery of Rosenstein’s notes and the record of Rosenstein and Mueller’s correspondence prior to the August 2nd memo.

    In a theoretically rational world, Judge Ellis’s denial of Downing’s request to peek at Mueller’s cards would not be regarded as a sign that Judge Ellis was somehow sympathetic to Manafort’s motion to dismiss. Consequently, we now have confirmation that Res Ipsa Loquitur is not a theoretically rational world.

  14. Turley wrote, “There is no other obvious explanation for the different decisions made in the two cases.”

    That’s because Turley has not read the un-redacted version of Rosenstein’s August 2nd memo authorizing the investigation of Manafort. Judge Amy Berman Jackson was given an un-redacted version of that memo. The OSC has two weeks to provide the same to Judge Ellis. There’s likely to be an obvious explanation for treating Manafort and Cohen differently in the redacted portions of Rosenstein’s August 2nd memo.

    The FBI had a FISA warrant on Manafort from late 2014 through early 2016. That FISA warrant was not renewed shortly before Manafort joined the Trump campaign in March of 2016. After Manafort resigned from the Trump campaign, the FBI got a new FISA warrant on Manafort sometime around September of 2016. The redacted portions of Rosenstein’s August 2nd memo are likely to refer to people with whom Manafort communicated during the times when the FISA warrants were in place. Some of those people may be subjects, or targets, of ongoing investigations who have not yet been charged with any crime or who may never be charged with any crime.

    Meanwhile, Judge Ellis broached the subject of The Classified Information Procedures Act possibly being used at Manafort’s trial. How much exculpatory evidence might Manafort hope to get from CIPA discovery? And much incriminating evidence could the OSC enter against Manafort under CIPA? Remember: Judge Ellis presided over the trial of John Walker Lindh which involved CIPA evidence and resulted in Lindh pleading guilty to two charges for which Lindh was sentenced to 20 years. Surely the OSC would prefer to avoid CIPA for the sake of ongoing investigations. But Manafort and his lawyers ought to dread CIPA. And especially so with Judge Ellis on the bench.

  15. Naturally, when pusillanimous and resident weasel, Mr. Turley, manages to get around to discussing Judge T.S. Ellis’s hearing with the Mueller team, after hiding for days in fear, when he finally does emerge, he feels compelled to again wash Mueller’s balls as usual, pathetic sycophant that he is. But, as Edmund Burke put it (sort of), “The only thing necessary for the triumph of evil is for too many weasels to block enough good men from doing something about it.”

    And now for some REAL legal analysis:

    1. Ralph is the piano player in the old joke who doesn’t know “That Monkey Dipped His Balls In My Martini,” but if Trump hums a few bars, Ralph will play along with it.

      1. Excerpted from the article linked above:

        After being interviewed by special counsel investigators on Wednesday, former aide to Donald Trump’s presidential campaign Michael Caputo told CNN that Robert Mueller’s team is “focused on Russia collusion.”

        “It’s clear they are still really focused on Russia collusion,” Caputo said, adding, “They know more about the Trump campaign than anyone who ever worked there.”

        Caputo, who advised the Trump campaign on communications in 2016, has long insisted he has no information about collusion between Trump’s team and Russia. He spoke with Senate intelligence investigators on Tuesday for their Russia probe and outlined the differences between Congress’ inquiries and the special counsel’s.

        “The Senate and the House are net fishing,” Caputo said. “The special counsel is spearfishing. They know what they are aiming at and are deadly accurate.”

        1. Caputo also had some choice words for the Senate Intelligence Committee when he was testifying the other day.
          He’s also mentioned that his legal bills are $125,000.

          1. It’s in the article to which I linked. I read it. If you’d like, you could copy and paste it from the linked article. Or would you like your old pal L4D to do that for you, Ptom?

        2. Excerpted from the article linked above to assuage the fairness monitor, Ptom Gnash:

          Following the Senate meeting, Caputo passionately criticized the panel, charging that the probe has cost him $125,000 and is forcing him to move from the Buffalo area in order to pay off legal bills.

          “Your investigation and others into the allegations of Trump campaign collusion with Russia are costing my family a great deal of money — more than $125,000 — and making a visceral impact on my children,” Caputo said in a prepared statement that he delivered at the end of the Senate interview, which was provided to CNN.

          “Forget about all the death threats against my family. I want to know who cost us so much money, who crushed our kids, who forced us out of our home, all because you lost an election,” he added, concluding with, “I want to know because God Damn you to Hell.”

          Caputo and other Trump associates have hired attorneys to deal with the various Russia investigations in Congress and by special counsel Mueller, often at a high price tag.

            1. Excerpted from the article linked above:

              Former Trump campaign aide Michael Caputo said Saturday he knows investigators with special counsel Robert Mueller’s team are still watching him carefully, but he feels “unfettered and freed” by the news that his legal defense fund has climbed to more than a quarter-million dollars after he spoke on Fox News about his questioning.

              “All they can do is call me back and cost me more legal fees,” Caputo told Fox News’ Neil Cavuto.

              1. So Caputo, who was mentored by Manafort and Stone, has mastered the art of talking out of both sides of his mouth, just like his mentors Manafort and Stone do.

  16. It would appear that Mueller made the raid on Manafort before he had the expanded, double-secret extension of his SC powers. That makes it even worse.

    1. That’s what Downing was fishing for. Judge Ellis denied Downing’s request and threatened Manafort with CIPA for good measure.

      1. FBI agents raided the home in Alexandria, Va., of President Trump’s former campaign chairman . . . . on July 26, 2017.

  17. A side comment but related to the general trend. When is someone going to ask Kerry to produce his registration as an agent for a foreign or multiple foreign governments. Paid or not paid doesn’t matter. It would seem if it was a good enough charge to strong arm Flynn it should already be in use or at least asked . what makes Kerry so special. Nothing except he did the three scratch cut and run during Vietnam. Meuller got a wound and then went straight to aide-de-camp to a General. Seems like he’s always in with the in crowd

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