Rod Rosenstein's Bad Day in Court

While Deputy Attorney General Rod Rosenstein is out and about doing his sanctimonious rule-of-law tour, wherein he claims that he is basically above the law, a federal judge in Virginia threw some serious shade on Robert Muller’s investigation. You know, the one that Rosenstein is in charge of.

When Judge T. S. Ellis (no relation to T. S. Eliot) suggested yesterday that the Special Counsel had largely overstepped his mandate to investigate Russian collusion in the 2016 presidential election, he was suggesting that the man who was overseeing the investigation, that would be Mr. Rosenstein, had allowed it to spin out of control.

In the case before the court, Mueller was trying to prosecute Paul Manafort for crimes that had been committed a decade before the election. As Judge Ellis noted, the only purpose of the prosecution was to turn Manafort against President Trump.

In attempting to justify the expanded scope of the investigation, the attorney representing the Special Counsel’s office, Michael Dreeben argued that Rosenstein had modified his instructions in order to allow—after the fact—the Manafort indictment. Which makes Rosenstein look like a flunky whose concern for the rule of law was expanded to comprise anything that Mueller wanted to do.

Dreeden had not made the modification available to the court. At one point, Judge Ellis mused about why Rosenstein had not recused himself from the case. Given that Rosenstein had filed one FISA surveillance application and had written a memo recommending that James Comey be fired as FBI director, he is certainly compromised. A fair-minded DAG would have long since recused himself.

Whatever you think the issue is, it’s not the rule of law.

Here are a couple of accounts of yesterday’s courtroom fireworks, the first from the Wall Street Journal, the second from the New York. By my lights the Times account is more comprehensive, and occupies more important space. Score one for the Times.

The Journal writes:

A federal judge Friday questioned Special Counsel Robert Mueller’s authority to bring tax and bank-fraud charges unrelated to the 2016 election against former Trump campaign chairman Paul Manafort.

Judge T.S. Ellis suggested the charges before the U.S. District Court for the Eastern District of Virginia were just part of the Mueller team’s designs to pressure Mr. Manafort into giving up information on President Donald Trump or others in the campaign.

“The vernacular is ‘to sing,’” Judge Ellis said, adding that he had “been here a long time” and likening the strategy to prosecuting a drug case for higher-value information.

It continues:

When Michael Dreeben from the special counsel’s office said the allegations in the Virginia case were covered by the scope of the initial appointment of Mr. Mueller, Judge Ellis retorted, “The scope covers bank fraud from 2005?”

“How does this have anything to do with the campaign?” Judge Ellis asked. After Mr. Dreeben said Mr. Manafort had been in touch with Russia-affiliated people in Ukraine, the judge admonished the prosecutor, saying “You’re running away from my question.”

Of course, it has nothing to do with investigating the campaign. It is all about the #GetTrump movement.

The New York Times tells it this way:

A federal judge in Virginia sharply challenged on Friday the special counsel’s case against Paul Manafort, suggesting that prosecutors had pursued fraud charges in hopes of gaining evidence that might incriminate President Trump or even topple him from office.

“You don’t really care about Mr. Manafort’s bank fraud,” Judge T. S. Ellis III said during a court hearing in Alexandria. “You really care about getting information that Mr. Manafort can give you that would reflect on Mr. Trump and lead to his prosecution or impeachment or whatever.”

As for the rule of law, the Special Counsel’s office has really been acting with what the judge called “unfettered power.” Prof. Alan Dershowitz has often expressed his concern over this issue, and especially over the fact that a man who is facing a lifetime in jail has a very good motive to tell the Special Counsel exactly what he wants to hear—even if he has to make it up. To imagine that people are always going to be truthful under such circumstances is naïve.

The Times continues:

“I don’t see what relation this indictment has with anything the special counsel is authorized to investigate,” he said, according to a transcript of the hourlong hearing on a defense motion to dismiss the charges. He added, “What we don’t want in this country is we don’t want anyone with unfettered power.”

The judge also pointed out that if the charges against Manafort had nothing to do with the election campaign, why were they not referred to a federal prosecutor… as Mueller had done with charges against Michael Cohen.

But he questioned why the special counsel’s team had pursued the charges against Mr. Manafort when it had referred allegations about the president’s personal lawyer, Michael D. Cohen, to federal prosecutors in Manhattan.

“Why in New York did you feel it wasn’t necessary to keep that, but it is necessary to keep this?” he asked. “I don’t see the difference.”

All reports on this colloquy emphasize that the judge’s questions do not necessarily foreshadow his decision. And yet, they do point out that Mr. Rosenstein has not really been overseeing the investigation and has not respected the rule of law. He would do himself a big favor if he shut up. He would do himself a bigger favor if he recused himself from the case. Other than that, his are surely firing offenses. In making the rounds to defend himself, Rosenstein is merely laying down a predicate for using his eventual firing as ammunition against Trump.

Finally, American Greatness reports on the judge’s demand to see an unredacted version of the Rosenstein memo that expanded Mueller’s authority:

When prosecutors tried to explain that the unredacted version would divulge sensitive national security and counterintelligence information, Ellis accused the Justice Department of “not really telling the truth,” and mocked Mueller’s lawyer for “we said this was what [the] investigation was about, but we are not bound by it and we were lying.”