FILE – In this April 21, 2016 file photo, attorney and former FBI Director Robert Mueller, right, arrives for a court hearing at the Phillip Burton Federal Building in San Francisco. Mueller has been overseeing settlement talks with Volkswagen, the U.S. government and private lawyers. Mueller is being honored with an award from West Point. The U.S. Military Academy’s Association of Graduates will present the Thayer Award to Mueller on Thursday evening, Oct. 6, 2016. (AP Photo/Jeff Chiu, File)
Paul Manafort’s defense team has been carrying out a full-court press attacking the authority of the special counsel to investigate or prosecute him for bank fraud charges that go back over a decade. In March, Manafort’s team filed a lawsuit against the special counsel’s authority, but it wasn’t well received. But some interesting things did come out of it.
Mueller claimed that Manafort was in contact with Russian intelligence officers:
In a court filing Tuesday night special counsel Robert Mueller said Rick Gates and Paul Manafort were working with a former Russian intelligence officer in September & October of 2016. Throw them all in prison for the rest of their lives. TRAITORS! https://t.co/4MUSEm6qBT
— Scott Dworkin (@funder) March 28, 2018
And we did learn more about Mueller’s charter.
These filings have had some effect. Like, for instance, yesterday we learned that Mueller’s team lied to the court about Manafort being in contact with Russian intelligence.
Today, Manafort and the special counsel were back in court and the special counsel had a very rough day.
BREAKING: A judge raked Special Counsel Mueller's team over the coals at a hearing in the Manafort case, sharply challenging Mueller's authority to pursue bank and tax fraud charges against the former Trump campaign chairman. Developing….will update….https://t.co/r1KkjGryJx
— Josh "ALL CAPS country name and !" Gerstein (@joshgerstein) May 4, 2018
Arguments just let out on Paul Manafort's motion to dismiss the Virginia indictment. Short version: Judge was far more skeptical of special counsel's args that the indictment was really related to the Russia probe. But not clear if he thought it warranted dismissal of the case.
— Zoe Tillman (@ZoeTillman) May 4, 2018
Judge Ellis to Special Counsel in US District Court today, “You don't really care about Mr. Manafort… 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, or whatever…" @FoxNews
— Jake Gibson (@JakeBGibson) May 4, 2018
This particular statement is also telling. To this point, the special counsel has insisted that President Trump is a “subject” in the investigation. The judge indicates that Trump is actually the target of the special counsel’s investigation.
NEW: Federal judge grilled the special counsel's team in court today, says Mueller should not have "unfettered power" to prosecute Paul Manafort, but did not rule on whether to dismiss the charges against him, @KenDilanianNBC reports pic.twitter.com/O2IYiLzFY5
— MSNBC (@MSNBC) May 4, 2018
This is the clincher:
The special counsel argues that Deputy Attorney General Rod Rosenstein granted them broad authority in his May 2, 2017 letter appointing Mueller to this investigation. But after the revelation that the team is using information from the earlier DOJ probe, Ellis said that information did not “arise” out of the special counsel probe – and therefore may not be within the scope of that investigation.
“We don’t want anyone with unfettered power,” he said.
Mueller’s team says its authorities are laid out in documents including the August 2017 scope memo – and that some powers are actually secret because they involve ongoing investigations and national security matters that cannot be publicly disclosed.
Ellis seemed amused and not persuaded.
He summed up the Special Counsel’s Office as, “We said this was what [the] investigation was about, but we are not bound by it and we were lying.”
He referenced the common exclamation from NFL announcers, saying: “C’mon man!”
The judge also gave the government two weeks to hand over the unredacted “scope memo” or provide an explanation why not — after prosecutors were reluctant to do so, claiming it has material that doesn’t pertain to Manafort.
“I’ll be the judge of that,” Ellis said.
I thought the prosecution telling the judge, essentially, “if we show you our charter, we’ll have to kill you” was pretty amusing.
This doesn’t help Manafort out a lot. The judge was questioning why a case that had originated in the Eastern District of Virginia years ago suddenly got new life with the special counsel. The best case for Manafort is that this case is tossed back to the local US Attorney who has a lot of real cases to deal with and whose office had already decided this was not worthy of prosecution. Where it really has an impact is on Mueller. If the Manafort case is deemed to be outside Mueller’s charter…and we have to assume that if the special counsel had any direct authority here they would have presented it in court…then all of Mueller’s questions about Comey’s firing and his feelings about Jeff Sessions and why he prefers his steak well-done will be challenged by Trump’s legal team and Mueller’s already slim chances of getting a Trump interview get even slimmer.