Here Comes the Judge

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

Breathtaking is the word that we would use for the accusation by a United States District Judge that Special Prosecutor Robert Mueller is using the criminal case against Paul Manafort to pressure him into turning state’s evidence against President Trump. “The vernacular is to sing,” said the judge, Thos. Ellis III, a veteran of more than thirty years on the federal bench.

It’s not that it’s all that unusual in the course of a case for a judge to make prosecutors show their bona fides. “I think Judge Ellis may just be putting the government through its paces,” Reuters was told by a professor who thinks it unlikely the judge will dismiss the charges Mr. Mueller has handed up against Mr. Manafort. The professor suggests that such lectures are fairly common.

The judge, though, certainly spoke sternly. “You don’t really care about Mr. Manafort. You really care about what information Mr. Manafort can give you to lead to Mr. Trump,” the judge told the prosecutors, adding: “It’s unlikely you’re going to persuade me the special counsel has unfettered power to do whatever he wants.” He pressed a dispute about Mr. Mueller’s mandate.

That involves the question of how far the special prosecutor’s authority extends. One government lawyer balked at providing the judge with more than a redacted copy of a memo supposedly granting Mr. Mueller power to investigate Mr. Manafort’s dealings in Ukraine. When a government lawyer told the judge that the redactions did not pertain to the Manafort case, Judge Ellis snapped: “I’ll be the judge.”

The judge stopped short of indicating whether he might grant Mr. Manafort’s motion to dismiss the charges. The judge, though, had barely spoken when President Trump reworked his speech to the National Rifle Association. “I’ve been saying that for a long time,” he told the audience at Dallas. “It’s a witch hunt.” Millions of Americans, including those of us at the Sun, share the opinion.

In our case, we are long-time opponents of strong-arm tactics of prosecutors. We have written about it for years. If it would be, as the Democrats like to suggest, obstruction of justice if, say, President Trump threatened to pardon General Flynn, why wouldn’t it be obstruction of justice for Mr. Mueller to strong arm Mr. Manafort in an attempt to get him to turn against Mr. Trump?

What a sweet moment it would be were Judge Ellis to throw out the pre-campaign charges against Mr. Manafort. It would be a start in addressing the concerns that Justice Antonin Scalia voiced in his dissent in Morrison v. Olson, when he warned about how independent prosecutors could affect the “boldness of the president.” Between North Korea, China, Russia, and Iran, boldness is certainly at a premium. Not only in the presidency but among judges, too.


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