Judge T.S. Ellis, III is a Senior U.S. District Judge in the Eastern District of Virginia.
On May 4, 2018, Judge Ellis heard arguments in one of the criminal cases Special Counsel Robert Mueller’s office brought against Paul Manafort.
During the hearing Judge Ellis set the stage by making the following observation:
If I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump.
That seems to me to be obvious because they all predate any contact or any affiliation of this defendant with the campaign.
So I don’t see what relation this indictment has with anything the special prosecutor is authorized to investigate.
Judge Ellis then set about describing the Mueller Investigation in more plain terms:
It looks to me instead that what is happening is that this [prior] investigation was underway. It had something.
The special prosecutor took it, got indictments, and then in a time-honored practice which I’m fully familiar with — it exists largely in the drug area. If you get somebody in a conspiracy and get something against them, you can then tighten the screws, and they will begin to provide information in what you’re really interested in.
That seems to me to be what is happening here. I’m not saying it’s illegitimate, but I think we ought to be very clear about these facts and what is happening.
Judge Ellis has been portrayed in some circles as folksy, perhaps out of his element. This would be a severe mischaracterization.
A 1987 Reagan appointee, Judge Ellis has presided over several high-profile national security cases:
United States v. Lindh (the so-called “American Taliban” case);
United States v. Franklin, Rosen, and Weissman, in which defendants were charged with engaging in a conspiracy to communicate National Defense Information to Israeli officials and AIPAC, in violation of the Espionage Act; and
El-Masri v. Tenet, in which plaintiff Khalid El-Masri sued the CIA and three private security companies, alleging extraordinary rendition and torture.
From a Ellis Bio:
[Judge Ellis graduated] from Princeton with an engineering degree (B.S.E. 1961), served as an aviator in the U.S. Navy from 1961-67, attaining the rank of Lieutenant.
He then studied law at Harvard (J.D. 1967, Knox Fellowship 1969-1970) and Oxford (Diploma of Law 1970).
Thereafter, he was a litigation partner in private practice with the Virginia-based international law firm of Hunton and Williams from 1969-87.
He is the author of numerous articles in law reviews and journals and has served as a lecturer at Georgetown Law School and the College of William and Mary.
Judge Ellis swept the courtroom floor with Mueller Team Attorney Michael Dreeben.
Brit Hume summed up my reaction perfectly:
I did not realize until I read the full transcript of Friday’s court hearing how badly it went for the Mueller team, which was reduced to arguing: yeah, we violated the regulations governing special counsels but those regs are not enforceable in court. https://t.co/mNG8aNsI2h
— Brit Hume (@brithume) May 6, 2018
You can find the full Court transcript here. Back to Judge Ellis:
I think you’ve already conceded appropriately that this investigation that has led to this indictment long antedated the appointment of a special prosecutor; that it doesn’t have anything to do with Russia or the campaign; and that he’s indicted; and it’s useful, as in many cases by prosecutors, to exert leverage on a defendant so that the defendant will turn and provide information on what is really the focus of the special prosecutor.
How does bank fraud and these other things that go back to 2005, 2007, how does that have anything to do with links and/or coordination between the Russian government and individuals associated with the campaign of Trump?
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.
Now Judge Ellis comes to the crux of the matter:
I think you would agree that the indictment that we have before the Court is not triggered by (i), which says, “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Bank fraud in 2005 and other things had nothing whatever to do with that.
So then you go to number two. It says, “any matters that arose or may arise directly from the investigation.” Well, this indictment didn’t arise from your investigation; it arose from a preexisting investigation even assuming that that (ii) is a valid delegation because it’s open-ended.
Dreeben attempted to respond:
The special counsel is authorized to prosecute matters that arose from the investigation that is described earlier in the preamble and in (b)(i) and (b)(ii).
So we are not limited in our prosecution authority to crimes that would fit within the precise description that was issued in this public order.
This statement would prove to be one Dreeben may wish he had not made.
Dreeben: If the investigation is valid, the crimes that arose from that investigation are within the special counsel’s authority to prosecute.
Ellis: Even though it didn’t arise from your investigation. It arose from a preexisting investigation.
Dreeben: Well, the investigation was inherited by the special counsel.
What Dreeben really means is that Mueller’s Investigation inherited the FBI’s July 2016 Counterintelligence Investigation.
This is a crucial distinction. The Special Counsel Investigation is not a criminal one.
They have all the documents that were produced. They have all the emails from everyone. They’ve got further documentation from people who worked outside the campaign – their emails, their texts.
They have the entire campaign’s texts.
The Mueller Investigation is the continuation of a counterintelligence investigation under the guise of the Special Counsel.
Dreeben: The acting attorney general has made clear in testimony before Congress that this order does not reflect the details of the matters that were assigned to us for investigation. And the word “arose” from that’s contained in (b) is not a full and complete description that’s meant to be judicially enforceable of the matters that were entrusted…
Ellis: So it’s written by lawyers but not intended to be judicially enforceable?
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.
Unlimited power is exactly what Dreeben is trying to argue for. We have this first order…but we also have a second order that comes with an “understanding”.
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…
Ellis: 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?
Dreeben: The only paragraphs that are pertinent to Mr. Manafort are the ones that are contained in this record.
Ellis: If any part of it is classified, it won’t surprise you to know that a district judge is fully cleared.
The August 2, 2017 Order can be found here.
Manafort’s Counsel makes their arguments. We return to Dreeben:
Dreeben: Mr. Manafort’s counsel treats the May 17 order as if it is the specific factual statement that’s contemplated by the special counsel regulations. It is not. The regulations nowhere say that a specific factual statement needs to be provided publicly, and in the context of a confidential, sensitive counterintelligence investigation that involves classified information, it would not make any sense for that information to be conveyed publicly.
The specific factual statement, as Attorney General Rosenstein described in his Congressional testimony, was conveyed to the special counsel upon his appointment in ongoing discussions that defined the parameters of the investigation that he wanted the special counsel to conduct. So it is not really appropriate to assume that the (b)(i) description is the factual statement that the regulations contemplate.
Judge Ellis simplifies things.
Ellis: 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.
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.
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.
The point that Ellis is making is actually rather fundamental.
How can Deputy AG Rosenstein expand the scope of an investigation beyond the parameters from which Attorney General Sessions was forced to recuse himself.
Dreeben: So we’re dealing here with a national security counterintelligence investigation that had been conducted by the FBI that had numerous different aspects to it that were…
Translation: We used a previously existing counterintelligence investigation as a means to convert our criminal investigation into a counterintelligence investigation.
Alternative Translation: We used our criminal investigation as cover and means to continue a previous counterintelligence investigation.
Dreeben: The May 17 order could not fully describe the matters that the acting attorney general wanted the special counsel to investigate because they implicated people who were under investigation but who may never be charged and sensitive national security matters.
As a result, the specifics of the investigation were conveyed to us not on the face of the May 17 order but in interaction with the acting attorney general.
The Conservative Treehouse summed it up in this fashion:
The special counsel originated their Russian conspiracy investigation through exploitation of a Title-1 FISA warrant against Carter Page. The special counsel then seeks to merge the results of that 2017 Russia investigation authority into Title-3 criminal cases that have absolutely nothing to do with Russian investigations.
Andrew McCarthy put it this way:
In this investigation, where they basically camouflaged this by giving the prosecutor what’s called a counterintelligence investigation, not a criminal investigation – not a crime.
What they did was they assigned a prosecutor and they said ‘go off and find a crime’. And not only that – do it in the counterintelligence context where it’s all classified – it’s under the cone.
Dreeben would continue before the Court. But he only seemed to make things worse.
Dreeben: Your Honor referred to the fact that there were ongoing investigatory matters that concerned Mr. Manafort before the appointment of the special counsel, but the investigation that the special counsel has conducted has considerably advanced and deepened our understanding of the matters that have been previously identified.
So it is not entirely fair to say that the matters in the indictment did not arise from the investigation or could not have arisen from it because our investigation…
Ellis: It factually did not arise from the investigation. Now, saying it could have arised under it is another matter, but factually, it’s very clear.
This was an ongoing investigation. You all got it from the Department of Justice. You’re pursuing it.
Now I had speculated about why you’re really interested in it in this case.
You don’t really care about Mr. Manafort’s bank fraud. Well, the government does. You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.
In closing Ellis noted some material inconsistencies in the Special Counsel’s approach.
Ellis: Wasn’t there a matter in New York recently that the special counsel returned to the Southern District of New York?
Dreeben: The special counsel’s office did refer certain allegations concerning an individual to the Southern District.
This related to Michael Cohen.
Ellis: Why did it do it?
Dreeben: With respect, Your Honor, I’m not at liberty to go into the internal prosecutorial matters within the Department of Justice.
Ellis: Let me ask you this: Did it do it because it concluded that it had uncovered materials that really weren’t within the scope of what it was authorized to look into, or did it do it because, well, we’re not interested in it because we can’t use this to further our core effort, which is to get…Mr. Trump?
Michael Dreeben had a difficult day in Judge Ellis’ Court. Deservedly so.
The Mueller Team made three major arguments – whether they meant to or not:
- There are no effective limits – as a counterintelligence investigation, Mueller can do as he pleases.
- Rosenstein’s May 17th public appointment letter was just a prelude to the real instructions.
- Nobody needs to see the unredacted August 2, 2017 Memo detailing the real scope of Mueller’s Investigation.
In essence, these court proceedings had nothing to do with Manafort. He remains in a difficult situation – deservedly so – for FARA violations. More here.
One point on Manafort is worth mentioning. The government had long been aware of Manafort’s activities. They did nothing.
Until Manafort became a useful tool in their investigation into President Trump.
Meanwhile, Friday’s hearing left the Mueller Investigation publicly exposed. Judge Ellis revealed it for what it is.
The continuation of the FBI’s July 2016 Counterintelligence Investigation.
older post Updates to “A Listing of Participants”