“Unfettered power.” Two words from the bench of Federal District Court Judge T. S. Ellis III that sum up the judge’s line of questioning in the investigation of Special Prosecutor Robert Mueller and his team.
I read the 48 page transcript of the hearing before Judge Ellis. Most of the hearing consisted of Judge Ellis pointedly questioning the special prosecutor’s attorney about the origin of the case brought before him and the motivation of the special counsel regarding the indictment of Paul Manafort.
The judge opened the hearing by making a distinction between the government and the special counsel. “Let me ask the government — or not the government — the special counsel a few questions..” From that point, the remainder of the conversation was between the judge and the special counsel.
Judge Ellis focused on the question of why the special counsel was prosecuting Manafort at this time. The US Attorney had investigated Manafort as far back as 2005 with no indictment. Mueller’s team took that old investigation and pressed charges. The judge’s questioning boiled down to “why” and “why now?”
He could see no connection between the investigations of 2005 and the special counsel’s actions today. He noted that the special counsel was appointed to investigate links or coordination between the Russian government and the Trump campaign.
The investigations and indictment of Manafort related to events well before the 2016 Presidential campaign. Judge Ellis noted, “I don’t see what relation this indictment has with anything the special prosecutor is authorized to investigate.”
Judge Ellis got right to the point by stating that the special counsel did not really care about the alleged bank fraud by Paul Manafort. “You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.”
The special counsel struggled to answer the judge’s question in a straight forward manner. At one point he defended the special counsel’s using the files from the 2005 investigation by implying that the special counsel was not really bound by the scope of the order appointing the special counsel.
It was at that point that Judge Ellis sternly lectured the special counsel:
THE COURT: What we don’t want in this country is we don’t want anyone with unfettered power. We don’t want federal judges with unfettered power. We don’t want elected officials with unfettered power. We don’t want anybody, including the President of the United States, nobody to have unfettered power. So it’s unlikely you’re going to persuade me that the special prosecutor has unlimited powers to do anything he or she wants…. American people feel pretty strongly about no one having unfettered power.
In the course of Judge Ellis’s questioning, he noted that a memo from Acting Attorney General Rosenstein was 75% blacked out. He wanted to know why he did not have a full copy.
The special counsel explained that the only paragraphs pertinent were the ones that were given to the judge. Judge Ellis responded, “I’ll be the judge of whether it relates to the others…. I’ll be the judge of whether it has anything to do with Mr. Manafort.”
Judge Ellis wrapped up the hearing with a requirement that the special counsel provide him a means to read the full unredacted memos. He also told the special counsel that he (Judge Ellis) was exercising uncharacteristic restraint on his part not to require special counsel to provide additional information on the decision making process involved.
Unfettered power sums up the attitudes and actions exhibited by the special counsel. For the first time, outside of the President and members of Congress, the special counsel encountered someone who threw the penalty flag. At one point in his remarks, Judge Ellis incredulously exclaimed, “Come on, man!”
The American people have been of the “Come on, man!” mindset for months. It is well past time for someone to exercise oversight and end the unfettered power of the special counsel by setting a deadline for Robert Mueller to issue a final report.
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