(THIS ARTICLE IS COURTESY OF THE DAILY INTELLIGENCER)
U.S. Senior District Judge T.S. Ellis is among a handful of judges in the country who know some of the deepest secrets of the Russia investigation. When lawyers for Paul Manafort asked him, unsuccessfully, to dismiss a slew of charges against their client accusing him of tax evasion and bank fraud, Ellis asked the office of special counsel Robert Mueller to hand over, without any redactions, an otherwise highly classified memorandumcontaining the scope of his authority to investigate Donald Trump’s former campaign chairman and other crimes.
More than anything, Ellis seemed to want to make sure Mueller wasn’t some loose cannon, going above and beyond his mandate as special counsel. Even then, he gave the government some time to produce the memorandum, mindful that other parts of the executive branch might have objections. “I think it’s perfectly appropriate for you to consult with other parts of the government, particularly intelligence agencies. If they feel some of it is classified, I’m prepared to look at it ex parte under seal,” Ellis said at the May hearing, meaning he’d let Mueller’s team submit the memo without letting Manafort’s side or the public get a look at it. Highly sensitive trials and government secrets, he added, are nothing new to him.
When came time to rule, it wasn’t even close. Mueller’s prosecutorial authority, as outlined in his appointment order of May 2017, isn’t limited “to federal crimes concerning election interference or collusion,” Ellis wrote in a 31-page decision, but “rather, the Special Counsel is authorized to prosecute federal crimes that arise out of his authorized investigation.” He added: “And the crimes charged in the Superseding Indictment clearly arise out of the Special Counsel’s investigation into the payments defendant allegedly received from Russian-backed leaders and pro-Russian political officials.”
Count me among the skeptics who doubt that Ellis’s scoldings and outbursts during the first two weeks of Paul Manafort’s trial in Virginia, as reported in the press, mean much of anything in the grand scheme. As I observed last week, the first public trial of the broader Russia saga is, for lack of a better term, a show trial — a minuscule part of the far more serious charges and revelations that Manafort is expected to answer for in the coming months in Washington.
And yet somehow we can’t look away. Or stop following the drip-drip-drip of trial developments. Or stop worrying that Ellis may somehow be biased against the prosecution or unduly prejudicing jurors to see things his way. Political and court journalists stationed at the judge’s Alexandria courtroom, God bless them, aren’t helping things, bringing us breathless tidbit after breathless tidbit as if the fate of the republic depended on it.
In the week that just ended, it was star witness Rick Gates’s showstopping testimony that led nearly every news report, and with good reason: As a longtime Manafort protégé and associate, he knows better than most where the bodies are buried. But even during his time in the spotlight, it was suggestions of serial lying and marital infidelity on his part, which the Manafort defense may have let linger to cast doubt on his credibility as a witness, that had court watchers and worriers wondering about what might happen to the prosecution’s case — which, in the eyes of many, had better be airtight, lest the president of the United States dance on the grave of the special counsel’s phony witch hunt.
I am here to reassure you that rumors of the demise of the Virginia prosecution against Paul Manafort have been greatly exaggerated. And that the heated confrontations between Judge Ellis and prosecutors — to the extent they happened in front of the jury — are just a foretaste of what the defense is likely to get when it starts to lay its cards on the table.
So far, all jurors have seen is one side of the case. And when it’s time for Manafort’s legal team to mount what Politico describes as “mission impossible,” it may consist of no more than attempts to paint its client as a victim, a highly sophisticated lobbyist who didn’t know better, or simply someone who was too busy working for Ukrainian interests to mind the minutiae of reporting his offshore taxable income or true liquid assets when he procured outsize bank loans the moment his political fortunes ran dry. A man too wealthy to keep good track of his own money or its whereabouts, if you will. Good luck with that.
More important still, for all the flashy testimony to come out of the trial, including from people who had direct knowledge of Manafort’s wheeling and dealing, jurors have already seen reams of documentary evidence — emails, invoices, and business records that paint a picture of the scheme Manafort is accused of orchestrating. In significant ways, the oral testimony simply corroborates or adds to the foundation prosecutors have already laid with the documents entered into evidence.
As for Ellis, whose ornery treatment of prosecutors has gotten him undue attention for all the wrong reasons, it’s best to not read too much into it. Again, because the defense is likely to catch fire from him too, but also because benchslapping is something that trial lawyers have to live with — and it’s not a good barometer of how jurors will ultimately decide a case.
“Judicial intemperance is common and, for better or worse, dealing with it is part of a litigator’s job,” Ken White, a longtime criminal defense attorney and former federal prosecutor, observed in an NBC News column. “Trial lawyers know that judicial grumbling is not a reliable predictor of results. It’s often just sound and fury signifying nothing.”
Ellis, more than just about anyone else in America, knows a wealth of extremely sensitive details about the Russia investigation, and his apparent drive to cut no slack for the prosecution also indicates that he wants theirside to have a solid trial record in the event of an appeal. “Riding prosecutors and limiting their evidence doesn’t necessarily signal that Ellis thinks they’re in the wrong — it may signal that he thinks they’re likely to convict Manafort, and he wants to make the result as clean and error-free as possible,” added White.
Either way, it’s not like the Mueller team is letting the judge play them for fools. Early on Thursday, the prosecutors filed a prehearing motion calling on Ellis to correct the record about something he had done a day earlier: letting them have it for allowing an IRS agent who was also a witness watch the weekly proceedings in the courtroom, which he had permitted but seemingly forgotten about. “It appears I may well have been wrong,” Ellis said in an unlikely moment of humility, according to Reuters. “But like any human, and this robe doesn’t make me anything other than human, I sometimes make mistakes.”
Expect jurors to credit that contrition — and the prosecution for holding the judge to his own rules. And don’t believe the hype: This trial thus far is going far worse for Manafort than it is for Mueller.