Posted by Curt on 7 May, 2018 at 7:52 pm. 2 comments already!


Well sure, we filed an indictment. And yeah, we took a victory lap in the big bells-n-whistles Main Justice press conference. But that doesn’t mean we, like, intended to have a trial . . .

That seems to be the Justice Department’s position on its mid-February publicity stunt, the indictment of 13 Russians and three Russian businesses for interfering in the 2016 election.

Let’s back up.

The courts were not kind last week to the Justice Department’s gamesmanship on the Russia probe, also known as the Mueller investigation, an investigation in which the cases prosecutors want to try are not about Russia, and the case about Russia prosecutors don’t want to try.

Judge Ellis and the Manafort Case in Virginia

First, in the Eastern District of Virginia, where Paul Manafort is facing one of the two indictments against him, Judge T. S. Ellis hammered Mueller’s prosecutors over the issues we have been hammering for a year:

(a) In appointing Mueller on May 17, 2017, Deputy Attorney General Rod Rosenstein failed to comply with federal regulations that control special-counsel investigations; and

(b) The secret August 2 memo, by which Rosenstein attempted to paper over this dereliction, is so facially uninformative and heavily redacted that the subjects of the investigation, the courts, and the public are still in the dark. The factual basis for a criminal investigation is still unknown, as are the boundaries of Mueller’s jurisdiction — with Mueller’s prosecutors paying lip service to the notion of limits, even as they argue that, essentially, there are none.

Judge Ellis was ornery with prosecutors at Friday’s hearing (Power Line’s Scott Johnson has posted the transcript here). He was particularly blunt about two other issues we’ve repeatedly highlighted:

(1) The two Manafort indictments (the one in Virginia and the other in Washington, D.C.) have nothing to do with the special counsel’s mandate to probe Russia’s meddling in the 2016 election, so one can only conclude that Mueller is squeezing Manafort, the former campaign manager, to get him to cooperate against President Trump; and

(2) Mueller’s investigation is really about seeking a basis to impeach Trump.

We’ve been asking the hard questions for a long time. Now, however, the special counsel and the Justice Department are dealing with a federal judge — i.e., a skeptic they can’t afford to ignore. And for those (myself included) who are inclined to believe Manafort is a sleazeball, it bears mention that he is unlikely to benefit from Judge Ellis’s doubts about Mueller’s authority. In the end, Mueller will probably be able to keep his case on track even if he is bruised along the way.

Even if the original appointment of Mueller is infirm, Rosenstein’s August 2 memo clearly authorized him to prosecute Manafort on the offenses involving Ukraine. The judge may not like it, but the court has no business telling the Justice Department what prosecutor to assign to a case. And even if the judge is right (he is) about why Mueller is so aggressively pursuing Manafort, there is nothing illegal or unusual about that: Prosecutors pressure suspects to help roll up other suspects all the time.

The judge will pressure Mueller to disclose the currently redacted four-fifths of the Rosenstein memo, which purportedly describe Mueller’s jurisdiction in a manner compliant with federal regulations. That’s understandable. There has been too much secrecy in this investigation. The FBI has been investigating for two years (i.e., for a year before Meuller took the helm), so by now we should be told what crimes, if any, the memo says the president may have committed. To be sure, there may be good-faith reasons related to investigative secrecy and protecting the reputations of uncharged people that justify some redactions. On the other hand, as I’ve previously hypothesized (here, last section), it could be that the Justice Department relied on the unverified Steele dossier in describing the factual basis for the special counsel’s investigation. That’s something we should know, even if Rosenstein and Mueller would rather not say.

Still, let’s say Mueller sticks to his guns, refusing to disclose the memo’s description of his jurisdiction and insisting that Judge Ellis is entitled to see only the thin Manafort paragraphs that have already been revealed. If Ellis reacts by dismissing the indictment, any appeal would go to the Fourth Circuit, which after eight years of Obama has turned sharply to the left.

In that forum, it is highly likely Mueller would win . . . at least if a prosecutor can call it “winning” when the prize for getting his indictment reinstated is a trip back to the lower court, where he gets to litigate the case before the same ornery district judge he just got reversed.

Judge Friedrich and the Russian-Troll-Farm Case in Washington

When Mueller brought the only case he’s charged that involves Russian interference in the 2016 campaign, we noted that it was more theater than prosecution. The Russian defendants are all beyond U.S. jurisdiction, so there would be no trial, and thus no possibility that the allegations would ever be tested in court. It seemed like a perfect opportunity for the special counsel to try to control the narrative: an indictment asserting something that, however highly probable, would be very difficult to prove beyond a reasonable doubt in a criminal trial — namely, that the Russian regime meddled in the U.S. election.

Here’s how I put it at the time:

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