In a photo taken Wednesday, June 21, 2017, Special Counsel Robert Mueller departs after a closed-door meeting with members of the Senate Judiciary Committee about Russian meddling in the election and possible connection to the Trump campaign, at the Capitol in Washington. (AP Photo/J. Scott Applewhite)
Yesterday, the special counsel had a very tough day in court. Federal district judge T. S. Ellis was openly skeptical not only of the authority of the special counsel to undertake the prosecution of Paul Manafort on crimes that are over a decade old, but he was blatantly skeptical of the honesty of the special counsel as well. It probably wasn’t lost on the judge that the special counsel had said in court filings that Manafort had been in contact with Russian intelligence operatives in 2016 and then had to admit, via a Brady motion, that it actually had zero evidence that this was true.
Now the transcript has started leaking out and it looks worse than the media reports from yesterday.
I got my hands on the May 4 transcript from the USA v. Manafort hearing in front of Judge Ellis. (Thanks to a close friend.)
Here we go… pic.twitter.com/MsEmKIlUhn
— Techno Fog (@Techno_Fog) May 5, 2018
Judge Ellis immediately lays out his understanding of the Manafort case: The criminal indictment relates back to 2005, 2007, etc., that the DOJ investigation of Manafort had been going on for years.
The Special Counsel (SC) concedes that fact. pic.twitter.com/0fa711HOCT
— Techno Fog (@Techno_Fog) May 5, 2018
Judge: When SC was appointed, did DOJ turn over their Manafort file to you?
Special Counsel: [Evades]
Judge: "I'm sorry. Answer my question." pic.twitter.com/Otfgbxezhw
— Techno Fog (@Techno_Fog) May 5, 2018
Judge Ellis:
"If I look at the indictment, none of that information has anything to do with links or coordination between the Russian gov't and individuals associated with the campaign of Donald Trump." pic.twitter.com/GzYgUlyR0d
— Techno Fog (@Techno_Fog) May 5, 2018
Judge Ellis recognizes what this is: an attempt by Mueller to squeeze Manafort. He likens the whole thing to a small-time drug dealer getting pinched.
"I think we out to be very clear about these facts and what is happening." pic.twitter.com/6UpL1NdP5B
— Techno Fog (@Techno_Fog) May 5, 2018
The Judge lays out his correct observation that this case is all about leverage
against Manafort.He asks the Special Counsel if that assessment is wrong.
The Special Counsel refuses to answer the question. Twice. pic.twitter.com/4vi1KKOglU
— Techno Fog (@Techno_Fog) May 5, 2018
Judge: How does the 2005/2007 bank fraud have anything to do with coordination b/w the Russians and the Trump campaign?
Special Counse: [More evasion]
Judge: "You're running away from my question again." pic.twitter.com/RMCVPMtY35
— Techno Fog (@Techno_Fog) May 5, 2018
Important exchange here.
SC explains to the Judge that the indictments are w/in the scope of the SC appointment: leads from the prior DOJ case eventually contributed to and led to the indictment.
The Judge isn't convinced. pic.twitter.com/YaVX20rROT
— Techno Fog (@Techno_Fog) May 5, 2018
SC: If the investigation is valid, the crimes that arose from that investigation are w/in the SC's authority to prosecute.
Judge: "Even though it didn't arise from your investigation. It arose from a preexisting investigation."
lol. pic.twitter.com/ZrMovIwB0s
— Techno Fog (@Techno_Fog) May 5, 2018
This is my favorite part.
An amazingly arrogant sequence here by team Mueller.
The SC is basically telling the Judge that grants of authority to the Special Counsel cannot be challenged through the courts.
Not "judicially enforceable." pic.twitter.com/droTOG82vB
— Techno Fog (@Techno_Fog) May 5, 2018
That is what elicited Judge Ellis's response that we don't want "unfettered power."
Judge Ellis continues, saying he's not going to be persuaded that Mueller has "unlimited powers to do anything" Mueller wants. pic.twitter.com/rysP4lIH9x
— Techno Fog (@Techno_Fog) May 5, 2018
Here, Judge Ellis is requesting the full August 2 Rosenstein memo.
Important Q: What if the memo proves right Judge Ellis's suspicions about the SC being a means to impeachment? pic.twitter.com/Q7KgFODbyL
— Techno Fog (@Techno_Fog) May 5, 2018
Eventually the SC sits down and it's Manafort's lawyer's turn.
Judge Ellis to Manafort's lawyer: Does the 8/2 memo remedy any issue with Mueller's jurisdiction?
Manafort's lawyer: No. It can't retroactively be remedied. pic.twitter.com/cacD2MRZHC
— Techno Fog (@Techno_Fog) May 5, 2018
If this next argument flies, it’s game over for the special counsel…but I wouldn’t hold my breath waiting for a judge to throw out a high profile case merely because the defendant’s rights were abused.
Judge: Isn't the right result to give the case back to the EDVA USAO?
Manafort lawyer: No – Mueller had no authority to conduct a grand jury investigation, to get search warrants, to get the indictment.
[Personal note: I just don't see the judge going that far.] pic.twitter.com/20Q7MJhC2l
— Techno Fog (@Techno_Fog) May 5, 2018
We know the next argument is true because the bank fraud/money laundering had been the subject of an earlier investigation. The special counsel stumbled upon a ready-made indictment that fit Manafort and grabbed it.
This is sort of scary:
This statement by the SC proves that Rosenstein has hid the true scope of the Mueller probe – and how it has expanded/shifted – from the public. pic.twitter.com/nKdV2g3z4i
— Techno Fog (@Techno_Fog) May 5, 2018
And here we go: Judge Ellis gets after the SC for trying to have it both ways.
The result – "Come on, man" pic.twitter.com/kz4X3JMfuv
— Techno Fog (@Techno_Fog) May 5, 2018
Important. Judge Ellis explains the Mueller's end game:
"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." pic.twitter.com/bAlGuxOZBV
— Techno Fog (@Techno_Fog) May 5, 2018
After going through all that, they get back to the real issue: Are the Rosenstein memos from May 2017 and August 2017 sufficient to confer jurisdiction to the Special Counsel? pic.twitter.com/iw3vB5PNRi
— Techno Fog (@Techno_Fog) May 5, 2018
Judge Ellis contemplating why the Manafort case couldn't be sent to the EDVA USAO office by referencing the Michael Cohen case:
"Wasn't there a matter in NY recently that the special counsel returned to the Southern District of New York?" pic.twitter.com/1QjGAheJvu
— Techno Fog (@Techno_Fog) May 5, 2018
Judge Ellis poses a question (a Q to which he will later provided an answer), asking why the Cohen was referred to the SDNY.
Special Counsel "not at liberty" to answer that question…. pic.twitter.com/2JEnUvk9P6
— Techno Fog (@Techno_Fog) May 5, 2018
We know why an so does the judge:
However, the Judge has his own theory:
Did the SC farm out the Cohen case because it wasn't within the SC's jurisidction, or….
Did it have SDNY handle the Cohen case because they "can't use this to further [the Special Counsel's] core effort, which is to get to Trump" pic.twitter.com/ttv7L5UjZh
— Techno Fog (@Techno_Fog) May 5, 2018
The SC's explanation as to why the Cohen case is different from the Manafort case isn't convincing. pic.twitter.com/mmmtZfRX4f
— Techno Fog (@Techno_Fog) May 5, 2018
Judge Ellis then tells the SC that the indictment does not mention:
(1) Russian individuals
(2) Russian banks
(3) Russian money
(4) Russian payments to ManafortThe SC concedes that fact. pic.twitter.com/BjH2aOF6Lq
— Techno Fog (@Techno_Fog) May 5, 2018
The hearing closed with a request from Manafort's lawyer that internal DOJ memos regarding the appointment and scope of the Special Counsel's authority/jurisdiction be produced.
Apparently, rat-faced Rosenstein loves memos.
The judge took that under advisement. pic.twitter.com/SCfmTjZ2fX
— Techno Fog (@Techno_Fog) May 5, 2018
I’m not a lawyer but I do believe in fair play. From what was laid out in this hearing the special counsel chose Manafort as a pressure point to try to get an indictment on Trump and from that tactical decision they went to work to find something on which to indict Manafort. And that was pretty easy. There were old investigations into Manafort lying around that they dusted off and used as a basis for an indictment. Not that Manafort had anything to do with Russia but the theory was he’d give the special counsel something incriminating or embarrassing on Trump.
If this ends up being a public relations fight between Trump and Mueller, I wouldn’t give much in the way of odds in favor of Mueller being able to win it.
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