Judge to Mueller: Show Me the Mandate

T.S. Ellis reminds the special counsel that his power isn’t ‘unfettered.’


Paul Manafort arrives for a motion hearing at the District Courthouse in Alexandria, Virginia, May 4.
Paul Manafort arrives for a motion hearing at the District Courthouse in Alexandria, Virginia, May 4. PHOTO: ANDREW HARRER/BLOOMBERG NEWS

Special counsel Robert Mueller is used to getting kid-glove treatment. That changed Friday in a federal courtroom in Virginia, where Judge T.S. Ellis directed a blunt challenge to the Mueller team prosecuting former Trump campaign manager Paul Manafort on charges of tax and bank fraud, some of which date back to 2005.

“I don’t see what relation this indictment has with what the special counsel is authorized to investigate. You don’t really care about Mr. Manafort’s bank fraud,” Judge Ellis told Michael Dreeben, who was representing Mr. Mueller in court. “What you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.”

Judge Ellis won’t win a diplomacy-in-judging prize, but his sharp words expose a central problem with the evolution of the Mueller probe. Though he was appointed to investigate collusion between Russia and the Trump campaign in 2016, Mr. Mueller’s indictments thus far have concerned other matters—lying to the FBI, or in Mr. Manafort’s case actions relating to his business with Ukraine.

Mr. Manafort’s team wants Judge Ellis to throw out the charges on grounds they exceed Mr. Mueller’s original mandate. And the judge’s questions leave the Mueller team in a difficult position. Essentially Mr. Mueller’s prosecutors now have to argue that even if they violated the Justice Department’s rules, it shouldn’t matter.

Mr. Dreeben of Team Mueller responded that the indictment doesn’t exceed the special counsel’s mandate, but the judge wants to see specifically the full and unredacted August 2, 2017 memo from Deputy Attorney General Rod Rosenstein saying what Mr. Mueller could pursue. The judge put it this way: “What we don’t want in this country, we don’t want anyone with unfettered power. It’s unlikely you’re going to persuade me the special counsel has unlimited powers to do anything he or she wants.”

None of this means a get out of jail pass for Mr. Manafort. As Judge Ellis also suggested, one of his options would be to transfer the case against Mr. Manafort from the special counsel to the U.S. attorney for Eastern Virginia. But if Mr. Mueller refuses to turn over the full “scope” document concerning Mr. Mueller’s mandate, Judge Ellis would be justified in throwing out the indictment.

The case of Mueller vs. Trump is fast becoming a Hatfield vs. McCoy feud, in which both sides want to destroy the other. But if the result of a presidential election is going to be overturned, and lives ruined along the way, the process must hew to proper due process and constitutional norms. Good for Judge Ellis for making that clear.

Appeared in the May 5, 2018, print edition.

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