Manafort Judge Asks If Mueller Overstepped His Authority

(Bloomberg) -- A judge sharply questioned whether Special Counsel Robert Mueller overstepped his authority by charging Paul Manafort with crimes unrelated to Russian election interference while also suggesting that the onetime Trump campaign chairman was indicted to coerce his cooperation against the president.

U.S. District Judge T. S. Ellis III expressed deep skepticism Friday about whether Mueller went too far in signing a bank- and tax-fraud indictment against Manafort. Ellis questioned how Mueller could prosecute financial crimes dating back a decade without charging Manafort for his election activities.

“I don’t see how this indictment has anything to do with anything the special prosecutor is authorized to investigate,” Ellis said at a hearing on a motion by Manafort to dismiss the case. The hearing ended without a ruling, and Ellis didn’t say when he would decide the matter in federal court in Alexandria, Virginia.

The judge’s unusually provocative remarks and questions don’t necessarily indicate how he will rule, but they put Mueller’s team on the defensive. The special counsel’s office was given two weeks to deliver an unredacted version of a Justice Department memo authorizing Mueller’s work.

A dismissal would be a blow to Mueller as he faces political attacks by President Donald Trump, congressional Republicans and conservative media. Still, Manafort faces an indictment in Washington on charges that he laundered millions of dollars and failed to register as a foreign agent of Ukraine.

After the judge’s critique of Mueller made news, Trump praised him. “Judge T.S. Ellis -- who is really something very special, I hear from many standpoints, he is a respected person,” Trump said at the annual National Rifle Association conference in Dallas. On the judge’s contention that Mueller was going after Manafort to get to Trump, the president said, “I’ve been saying that for a long time. It is a witch hunt.”

Manafort Indictment

Ellis said it appeared that prosecutors were using the indictment of Manafort to pressure him to cooperate against Trump. Manafort, 69, has pleaded not guilty and disputes Mueller’s assertion that he violated U.S. laws when he worked for a decade as a political consultant for pro-Russian groups in Ukraine.

“You don’t really care about Mr. Manafort’s bank fraud,” Ellis told four prosecutors working for Mueller. “You really care about what information he might give you about Mr. Trump and what might lead to his impeachment or prosecution.”

Manafort attorney Kevin Downing argued that Mueller overstepped his May 2017 appointment order, which directed him to pursue links between Russia and the Trump campaign, as well as “any matter that arose or may arise directly” from the investigation. He said that Mueller improperly took over existing Justice Department investigations into Manafort without adequately explaining what connection it had to the Russia probe.

At the hearing, Justice Department attorney Michael Dreeben argued that Mueller acted properly and always consulted with Deputy Attorney General Rod Rosenstein, who is overseeing the investigation, about the steps he was taking. He pointed to an Aug. 2 memo that said Manafort may have “committed a crime or crimes by colluding with Russian government officials” to interfere in the election, and that he illegally handled payments he got from the pro-Russian Ukrainian government.

Rosenstein Memo

Most of the three-page memo is blacked out, and Dreeben said it wasn’t necessary to share the rest of it because it didn’t relate to Manafort. But Ellis ordered that prosecutors give him the full memo within two weeks, saying he’ll determine whether the explanation of why Manafort was under investigation is adequate.

Mueller’s office took over an investigation of Manafort that had been conducted by prosecutors in the Eastern District of Virginia, where Ellis sits. The judge appeared impatient with Dreeben, who has argued more than 100 cases before the U.S. Supreme Court. Ellis repeatedly interrupted Dreeben as he pressed for an explanation of Mueller’s authority.

“It covers bank fraud in 2005 and 2007?” Ellis said. “Tell me how. How does that have to do with links or coordination with Russia and Trump?”

Dreeben said the investigations were “folded together with our overall examination of Mr. Manafort’s conduct,” and he was indicted based on information developed by Mueller as they followed the trail of money that left Ukraine.

“This indictment didn’t arise from your investigation,” Ellis said. “It arose from the pre-existing investigation.”

Reagan Pick

Ellis, 77, has served on the federal bench since being chosen by President Ronald Reagan in 1987. Several times during the hearing he told short asides about his long tenure on the bench.

At one point, he expressed derision for Dreeben’s argument that he couldn’t fully explain all the reasons for how the special counsel proceeded.

“Your argument is that this is the scope of the investigation but we really didn’t mean it and we weren’t required to disclose it,” Ellis said. “I understand your argument, but it kind of invites, ‘C’mon man.’”

The judge’s questions suggested he was impatient with Dreeben and the three prosecutors sitting at the table. At one point he scolded one of them for nodding in agreement throughout the argument.

Mueller Budget

Dreeben said he wouldn’t say how much Mueller had spent of his $10 million budget.

“I’m sure you’re pretty sensitive to the fact that the American people feel no one should have unfettered power,” Ellis said.

“We are not operating with unfettered power,” Dreeben replied. “We are operating within a framework of regulations.”

The judge also pressed prosecutors on why they referred the investigation of Trump personal attorney Michael Cohen to federal prosecutors in New York, while retaining the Manafort case. Dreeben said the Manafort case is different.

Manafort faces a July 10 trial in Alexandria. He’s free on $10 million bail.

The cases are U.S. v. Manafort, 18-cr-83, U.S. District Court, Eastern District of Virginia (Alexandria), and U.S. v. Manafort, 17-cr-201, U.S. District Court, District of Columbia (Washington).

(A previous version of this article misspelled Michael Dreeben’s name.)

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