Bad Justice

ullstein bild via Getty Images

Be certain to read Tierney Sneed’s article on this broad attack against the Mueller probe from the judge in one of the two Manafort prosecutions. I react very negatively at some level simply because I think the Mueller probe is a critical, righteous, essential investigation. Beyond this, the independence and integrity of the probe are really beyond reproach. In part this is because of the reputations and conduct of the key players, particularly Robert Mueller. But we always have to remember that this is an entirely Republican affair. A Republican Deputy Attorney General appointed by President Trump choosing a Republican former Director of the FBI. The idea that this probe is infected by partisanship is simply absurd.

Beyond this initial reaction, I have two observations. One is that Trumpism and all the chaos and wrongdoing it brings in its wake really pressures our whole architecture of self-government and law to the breaking point. But more specifically, Judge Ellis’s complaints are simply weak on their face and by his own implicit admission irrelevant to the case. One of his big complaints is partisanship. Again, that’s absurd on its face. The second more general complaint is about Special Counsels in themselves, arguing that their freedom from time and budgetary restrains frees them from the normal constraints prosecutors face.

There is a limited truth to this, inherent in the nature of any special investigation. But the issue with the Independent Counsel was that they were literally unaccountable. That simply isn’t the case here. Robert Mueller reports to Rod Rosenstein, a confirmed administration appointee. He must confer and get sign off from Rosenstein and Rosenstein can fire him. He is accountable and accountable to an appointee of the President, confirmed by the Senate. That’s how the system of accountability is supposed to work. Full stop.

At other points in his run of jabs Ellis questions whether Mueller should be able to look at Russian connections even if they’re “stale.” He says Rosenstein gave Mueller too broad a mandate. I think he’s clearly wrong on both counts. But the relevant point is that these are substantive, discretionary judgements that it was up to Rosenstein to make. It’s simply not any of the judge’s business. His biggest complaint is that he finds the prosecution “distasteful”, a comment I take as a tacit admission that his skepticism is based on feeling and sentiment rather than law.

The real tell in all of this is that Ellis decided in Mueller’s favor, denying Manfort’s request to dismiss the case. On each point, Ellis seemed compelled to concede that there were no legal problems with anything that Mueller has done. So with a visible reluctance he decided to follow the law. In a sense, this is to Ellis’ credit. But not entirely, indeed not much. His attacks make it pretty clear that he has a highly prejudicial bias against the government’s case. I think there are real reasons to question whether his bias is in fact partisan in nature. But it doesn’t need to be driven by partisanship for it to be a problem.

I’d actually be curious to hear from trial lawyers on this point. I know it’s not going to happen in this case. And I know that a prosecutor probably seldom does it because you’re screwed if the judge rejects your request. But would it be within the realm of reasonable for a prosecutor to ask a judge to recuse himself in a situation like this? I know you can ask anything. But does that happen? Is that totally out of bounds? Let me know.

In any case, this is an investigation and prosecution run by Republicans. We have a judiciary dominated by Republican appointees and a Supreme Court with a clear conservative majority which I think is often more rightly seen as a Republican majority. Partisanship leeches through into judicial reasoning. It’s a warning sign.

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