Judge Ellis Wants to See Mueller's Hunting License

My friend Tom Lipscomb, commenting on the newsworthy but welcome judicial challenge to the scope of the special counsel's power in the Manafort case in Virginia, says it reminds him of the Tom Lehrer song about a man and his hunting license.  In relevant parts, the lyrics are:

I always will remember 'twas a year ago November,
I went out to hunt some deer,
On a morning, bright and clear.
I went and shot the maximum the game laws would allow,
Two game wardens, seven hunters and a cow. ...
The law was very firm – it took away my permit,
The worst punishment I ever endured.
It turned out there was a reason, cows were out of season,
And one of the hunters – wasn't insured.

1. Judge Ellis: "I'll be the judge"

The best account of the hearing before Judge Ellis I've found is in Reuters

Manafort is being prosecuted for bank and tax fraud allegedly committed years before the Trump campaign – in 2005 and 2007 – and for which he was previously investigated and no charges brought.  He moved to dismiss these cases in the District of Columbia and Virginia courts.  The motion is pending in D.C., but in Virginia, Judge T.S. Ellis III found that the defense's claims showed considerable merit.  As Reuters reports:

"I don't see what relationship this indictment has with anything the special counsel is authorized to investigate," U.S. District Judge T.S. Ellis III in the Eastern District of Virginia said.

At a tense hearing at the federal courthouse in Alexandria, Virginia, the judge said Mueller should not have "unfettered power" in his Russia probe and that the charges against Manafort did not arise from the investigation into Moscow's alleged meddling in the 2016 U.S. election.

"It's unlikely you're going to persuade me the special counsel has unfettered power to do whatever he wants[.]" ... "Our investigative scope does cover the activity in the indictment," Dreeben [the Department's deputy solicitor general] told the judge.

"Cover bank fraud in 2005 and 2007?  Tell me how!" Ellis retorted. ...

During the oral arguments, Ellis repeatedly chided Mueller's $10 million budget.

He also asked whether Rosenstein, who oversees the probe and is considered an important witness into whether Trump tried to obstruct justice, is recused from the case.

And he repeatedly claimed that the indictment appeared to serve as a way for Mueller to "assert leverage" over Manafort. ...

Rosenstein's May 2017 order laying out the scope of the probe, [Dreeben] told the judge, did not reveal all the details because they involve sensitive national security and counterintelligence matters that could not be divulged publicly, but were conveyed to Mueller.

Ellis balked, saying Dreeben's answer essentially means the Justice Department was "not really telling the truth[.]" ...

Dreeben also stressed that Rosenstein wrote another memo two months later, in August 2017, explicitly granting Mueller the power to investigate Manafort's Ukraine dealings years before the 2016 election.

[Ellis] directed Mueller's office to take two weeks to consult with U.S. intelligence agencies to see if they will sign off so that he can personally review a sealed, unredacted version of the memo.

Dreeben told him the redacted portions did not pertain to the Manafort case.

"I'll be the judge," Ellis said.

James Woods, a brilliant actor, tweeted:

I can't in my lifetime remember when a case of this import featured a judge calling the prosecutor a liar from the bench. This is a landmark moment.

Actually, I do remember when courts called the prosecution liars in cases of great import.  Unfortunately, they were both post-conviction.  A three-judge panel of the D.C. court conceded that Judith Miller had been tricked by the special prosecutor in the Libby case into giving false testimony against the defendant, and DOJ attorneys and FBI agents were found to have engaged in numerous unethical and illegal acts before Judge Sullivan in the Ted Stevens prosecution.  The link to all three cases is the partisan use of the law as a political weapon by lawyers and FBI agents in government employ.

2. Truth and consequences

As noted, Judge Ellis remarked upon Rod Rosenstein's conflict of interest in the investigation into whether Comey's firing amounted to obstruction of justice – a matter legally absurd enough on its face but made more so by the fact that Rosenstein himself (supposedly overseeing Mueller's work) was the very author of the memorandum to the president calling for Comey's firing.

But there's more. 

At American Greatness, Julie Kelly indicates a ruling in which Mueller misrepresented to the court a significant matter that might well lead to his dismissal under the very law of his appointment.

Ellis gave Mueller's team two weeks to furnish the unredacted memo or justify why they would not.  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 [saying] "we said this was what [the] investigation was about, but we are not bound by it and we were lying."  The Reagan-appointed judge admonished federal prosecutors that "no one has unfettered power" and asked whether the special counsel's office had already spent its $10 million budget.  Prosecutors refused to answer. 

It's not the first time Ellis has raised questions about the legitimacy of the charges against Trump's one-time campaign chief.  During a hearing in March, Ellis noted that the case "doesn't have anything to do with the Russians or Russian interference in the election." 

And Ellis isn't the only federal judge recently to have recently expressed skepticism about Mueller's apparent overreach.  U.S. District Judge Amy Jackson Berman also challenged Mueller's authority during a court hearing on a separate Manafort lawsuit last month. ... If the judge dismisses Manafort's case, Mueller justifiably could be fired.  According to the federal statute, a special counsel can be removed for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies."  Bungling his biggest case because he exceeded his given authority then tried to obfuscate that fact from the court would certainly meet some of that criteria [sic]. 

Perhaps Judge Ellis will put an end to this national nightmare before Trump or Sessions has to.

3. Revising the redactions

The congressional investigators join Judge Ellis in demanding more documentation from the special counsel than the stonewalling Department of Justice and FBI have been willing to divulge, and events this week show that the redactions are not to protect national security, but to hide official misconduct from Congress, the courts, and the public.  On May 4, the redacted version of the House Intelligence Committee was superseded by a somewhat less redacted version after congressional members ranted about what the FBI had blocked out.  Sean Davis tweeted comparisons.  If, like me, you find Twitter hard to follow, the editor of this publication has put it in more readable form.

What is now no longer redacted?  Davis says:

Compare the fully redacted version that came out last week to the mostly unredacted version that came out today.  Do you see what DOJ/FBI tried to cover up?  McCabe said they hadn't substantiated anything against Flynn, and the ambush of Flynn at the WH was directed by Comey. ... DOJ/FBI also tried to hide Comey's clear testimony that FBI agents didn't think Flynn lied. Here's what they covered up: "Comey testified to the Committee that 'the agents... discerned no physical indications of deception.  They saw nothing that indicated... he was lying to them.'

As Thomas Lifson concludes, "[i]t is now clear beyond dispute that the agents of the Deep State are afraid of exposure and are abusing the powers of their offices to prevent their perfidy from being exposed."

4. Rosenstein's hat is no longer white, either

Apart from Judge Ellis's notice of Rosenstein's substantial conflict in the alleged obstruction of justice, he's in trouble for extending the FISA warrant.  In that act, he handed over the files of the earlier counterintelligence operation, itself deficient, as it was clearly based on Clinton opposition work for Hillary Clinton, which was and remains unvetted and unsubstantiated even now, after Dianne Feinstein's aide was handed $50 million to try after the fact to find it credible.

It turns out that in July of last year, Rosenstein reauthorized the FISA warrant.  To reauthorize it seems problematic without explaining its predication and validity, detailing what progress was made on the original authority, and explaining why there were no results and why renewal would provide results.  There's not the slightest indication any of that that occurred. 

As an online friend, a former agent himself, writes me:

Remember, this FISA should be confirming initial claims Carter Page is Russian Intel asset, that he's engaged in clandestine activity.  This is why Kallstrom calls it all "preposterous."  None of it can be true, it all shoulda been shut down without renewal.  If it wasn't, strongly suggests conspiracy right up the chain of command, the same chain that hadda sign off on it.  Rosenstein doesn't get to simply tell Mueller "carry on with what FBI was doing."  There's gotta be rescrutiny of predication, by both R[osenstein] and M[ueller].

The FISC needs to be put under the spotlight, too, for permitting itself to be so manipulated into extending an unlawful warrant even further without such necessary documentation.

Rosenstein did not help himself this week when he made a ridiculous assertion that congressional oversight of the department's operations was "extortion."

Former Clinton pollster Mark Penn weighs in

Deputy Attorney General Rod Rosenstein's reaction to reports of possible impeachment for failing to respond to congressional subpoenas was to proclaim that the Justice Department "will not be extorted."

I suppose he meant to say, "Only we here at the Justice Department do the extorting, with special counsels, daylight raids of people's attorneys, bankrupting people with legal fees, threats to prosecute family members, and questionable wiretapping of Americans."

Last time I checked, the Constitution gave the elected representatives of the people the right to decide whether to impeach public officials for failure to comply with completely lawful subpoenas and appropriate oversight.  They even provide Congress with immunity included in the Constitution to prevent threats from people like Rosenstein. ...

This government within the government has now crossed a line that is unacceptable.  By gaining the recusal of Attorney General Jeff Sessions, Rosenstein stepped into the shoes of the attorney general, even though he was not appointed to that role by the president.

Now he believes he is above the law despite the myriad of conflicts he has ignored to authorize these unlimited investigations of the administration he supposedly serves. ...

Sessions should call Rosenstein in and demand that he comply fully with the subpoenas or fire him and replace him with someone who will fairly oversee the Russia investigation and who will comply with the lawful orders of Congress.  Yes, all hell will break loose, but Rosenstein has now assumed unconstitutional powers, believing that he is accountable to no one but his own conception of the rule of law[.]

5. The cheese stands alone

Two more resignations (probably really firings) of the DOJ-FBI cabal occurred Friday.  Former FBI chief legal counsel James Baker announced that he was leaving to become a blogger on Lawfare under Benjamin Wittes, Comey's leak recipient.  Lisa Page is also leaving.  What, if any, job Comey and Clinton have lined up for her is as yet unknown.  I've forgotten how many DOJ and FBI officials have had the door swing behind them in recent months, but if this continues, the attorney general may be the last man standing at the DOJ. 

In the meantime, not surprisingly, the Mueller team is unable to get service or the defendants into court in the 13 indictments against Russians, the Flynn case is on the shoals, and the guilty pleas they've obtained have nothing to do with Russian collusion.  Or Donald Trump.

My friend Tom Lipscomb, commenting on the newsworthy but welcome judicial challenge to the scope of the special counsel's power in the Manafort case in Virginia, says it reminds him of the Tom Lehrer song about a man and his hunting license.  In relevant parts, the lyrics are:

I always will remember 'twas a year ago November,
I went out to hunt some deer,
On a morning, bright and clear.
I went and shot the maximum the game laws would allow,
Two game wardens, seven hunters and a cow. ...
The law was very firm – it took away my permit,
The worst punishment I ever endured.
It turned out there was a reason, cows were out of season,
And one of the hunters – wasn't insured.

1. Judge Ellis: "I'll be the judge"

The best account of the hearing before Judge Ellis I've found is in Reuters

Manafort is being prosecuted for bank and tax fraud allegedly committed years before the Trump campaign – in 2005 and 2007 – and for which he was previously investigated and no charges brought.  He moved to dismiss these cases in the District of Columbia and Virginia courts.  The motion is pending in D.C., but in Virginia, Judge T.S. Ellis III found that the defense's claims showed considerable merit.  As Reuters reports:

"I don't see what relationship this indictment has with anything the special counsel is authorized to investigate," U.S. District Judge T.S. Ellis III in the Eastern District of Virginia said.

At a tense hearing at the federal courthouse in Alexandria, Virginia, the judge said Mueller should not have "unfettered power" in his Russia probe and that the charges against Manafort did not arise from the investigation into Moscow's alleged meddling in the 2016 U.S. election.

"It's unlikely you're going to persuade me the special counsel has unfettered power to do whatever he wants[.]" ... "Our investigative scope does cover the activity in the indictment," Dreeben [the Department's deputy solicitor general] told the judge.

"Cover bank fraud in 2005 and 2007?  Tell me how!" Ellis retorted. ...

During the oral arguments, Ellis repeatedly chided Mueller's $10 million budget.

He also asked whether Rosenstein, who oversees the probe and is considered an important witness into whether Trump tried to obstruct justice, is recused from the case.

And he repeatedly claimed that the indictment appeared to serve as a way for Mueller to "assert leverage" over Manafort. ...

Rosenstein's May 2017 order laying out the scope of the probe, [Dreeben] told the judge, did not reveal all the details because they involve sensitive national security and counterintelligence matters that could not be divulged publicly, but were conveyed to Mueller.

Ellis balked, saying Dreeben's answer essentially means the Justice Department was "not really telling the truth[.]" ...

Dreeben also stressed that Rosenstein wrote another memo two months later, in August 2017, explicitly granting Mueller the power to investigate Manafort's Ukraine dealings years before the 2016 election.

[Ellis] directed Mueller's office to take two weeks to consult with U.S. intelligence agencies to see if they will sign off so that he can personally review a sealed, unredacted version of the memo.

Dreeben told him the redacted portions did not pertain to the Manafort case.

"I'll be the judge," Ellis said.

James Woods, a brilliant actor, tweeted:

I can't in my lifetime remember when a case of this import featured a judge calling the prosecutor a liar from the bench. This is a landmark moment.

Actually, I do remember when courts called the prosecution liars in cases of great import.  Unfortunately, they were both post-conviction.  A three-judge panel of the D.C. court conceded that Judith Miller had been tricked by the special prosecutor in the Libby case into giving false testimony against the defendant, and DOJ attorneys and FBI agents were found to have engaged in numerous unethical and illegal acts before Judge Sullivan in the Ted Stevens prosecution.  The link to all three cases is the partisan use of the law as a political weapon by lawyers and FBI agents in government employ.

2. Truth and consequences

As noted, Judge Ellis remarked upon Rod Rosenstein's conflict of interest in the investigation into whether Comey's firing amounted to obstruction of justice – a matter legally absurd enough on its face but made more so by the fact that Rosenstein himself (supposedly overseeing Mueller's work) was the very author of the memorandum to the president calling for Comey's firing.

But there's more. 

At American Greatness, Julie Kelly indicates a ruling in which Mueller misrepresented to the court a significant matter that might well lead to his dismissal under the very law of his appointment.

Ellis gave Mueller's team two weeks to furnish the unredacted memo or justify why they would not.  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 [saying] "we said this was what [the] investigation was about, but we are not bound by it and we were lying."  The Reagan-appointed judge admonished federal prosecutors that "no one has unfettered power" and asked whether the special counsel's office had already spent its $10 million budget.  Prosecutors refused to answer. 

It's not the first time Ellis has raised questions about the legitimacy of the charges against Trump's one-time campaign chief.  During a hearing in March, Ellis noted that the case "doesn't have anything to do with the Russians or Russian interference in the election." 

And Ellis isn't the only federal judge recently to have recently expressed skepticism about Mueller's apparent overreach.  U.S. District Judge Amy Jackson Berman also challenged Mueller's authority during a court hearing on a separate Manafort lawsuit last month. ... If the judge dismisses Manafort's case, Mueller justifiably could be fired.  According to the federal statute, a special counsel can be removed for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies."  Bungling his biggest case because he exceeded his given authority then tried to obfuscate that fact from the court would certainly meet some of that criteria [sic]. 

Perhaps Judge Ellis will put an end to this national nightmare before Trump or Sessions has to.

3. Revising the redactions

The congressional investigators join Judge Ellis in demanding more documentation from the special counsel than the stonewalling Department of Justice and FBI have been willing to divulge, and events this week show that the redactions are not to protect national security, but to hide official misconduct from Congress, the courts, and the public.  On May 4, the redacted version of the House Intelligence Committee was superseded by a somewhat less redacted version after congressional members ranted about what the FBI had blocked out.  Sean Davis tweeted comparisons.  If, like me, you find Twitter hard to follow, the editor of this publication has put it in more readable form.

What is now no longer redacted?  Davis says:

Compare the fully redacted version that came out last week to the mostly unredacted version that came out today.  Do you see what DOJ/FBI tried to cover up?  McCabe said they hadn't substantiated anything against Flynn, and the ambush of Flynn at the WH was directed by Comey. ... DOJ/FBI also tried to hide Comey's clear testimony that FBI agents didn't think Flynn lied. Here's what they covered up: "Comey testified to the Committee that 'the agents... discerned no physical indications of deception.  They saw nothing that indicated... he was lying to them.'

As Thomas Lifson concludes, "[i]t is now clear beyond dispute that the agents of the Deep State are afraid of exposure and are abusing the powers of their offices to prevent their perfidy from being exposed."

4. Rosenstein's hat is no longer white, either

Apart from Judge Ellis's notice of Rosenstein's substantial conflict in the alleged obstruction of justice, he's in trouble for extending the FISA warrant.  In that act, he handed over the files of the earlier counterintelligence operation, itself deficient, as it was clearly based on Clinton opposition work for Hillary Clinton, which was and remains unvetted and unsubstantiated even now, after Dianne Feinstein's aide was handed $50 million to try after the fact to find it credible.

It turns out that in July of last year, Rosenstein reauthorized the FISA warrant.  To reauthorize it seems problematic without explaining its predication and validity, detailing what progress was made on the original authority, and explaining why there were no results and why renewal would provide results.  There's not the slightest indication any of that that occurred. 

As an online friend, a former agent himself, writes me:

Remember, this FISA should be confirming initial claims Carter Page is Russian Intel asset, that he's engaged in clandestine activity.  This is why Kallstrom calls it all "preposterous."  None of it can be true, it all shoulda been shut down without renewal.  If it wasn't, strongly suggests conspiracy right up the chain of command, the same chain that hadda sign off on it.  Rosenstein doesn't get to simply tell Mueller "carry on with what FBI was doing."  There's gotta be rescrutiny of predication, by both R[osenstein] and M[ueller].

The FISC needs to be put under the spotlight, too, for permitting itself to be so manipulated into extending an unlawful warrant even further without such necessary documentation.

Rosenstein did not help himself this week when he made a ridiculous assertion that congressional oversight of the department's operations was "extortion."

Former Clinton pollster Mark Penn weighs in

Deputy Attorney General Rod Rosenstein's reaction to reports of possible impeachment for failing to respond to congressional subpoenas was to proclaim that the Justice Department "will not be extorted."

I suppose he meant to say, "Only we here at the Justice Department do the extorting, with special counsels, daylight raids of people's attorneys, bankrupting people with legal fees, threats to prosecute family members, and questionable wiretapping of Americans."

Last time I checked, the Constitution gave the elected representatives of the people the right to decide whether to impeach public officials for failure to comply with completely lawful subpoenas and appropriate oversight.  They even provide Congress with immunity included in the Constitution to prevent threats from people like Rosenstein. ...

This government within the government has now crossed a line that is unacceptable.  By gaining the recusal of Attorney General Jeff Sessions, Rosenstein stepped into the shoes of the attorney general, even though he was not appointed to that role by the president.

Now he believes he is above the law despite the myriad of conflicts he has ignored to authorize these unlimited investigations of the administration he supposedly serves. ...

Sessions should call Rosenstein in and demand that he comply fully with the subpoenas or fire him and replace him with someone who will fairly oversee the Russia investigation and who will comply with the lawful orders of Congress.  Yes, all hell will break loose, but Rosenstein has now assumed unconstitutional powers, believing that he is accountable to no one but his own conception of the rule of law[.]

5. The cheese stands alone

Two more resignations (probably really firings) of the DOJ-FBI cabal occurred Friday.  Former FBI chief legal counsel James Baker announced that he was leaving to become a blogger on Lawfare under Benjamin Wittes, Comey's leak recipient.  Lisa Page is also leaving.  What, if any, job Comey and Clinton have lined up for her is as yet unknown.  I've forgotten how many DOJ and FBI officials have had the door swing behind them in recent months, but if this continues, the attorney general may be the last man standing at the DOJ. 

In the meantime, not surprisingly, the Mueller team is unable to get service or the defendants into court in the 13 indictments against Russians, the Flynn case is on the shoals, and the guilty pleas they've obtained have nothing to do with Russian collusion.  Or Donald Trump.