What To Make of Today’s Manafort Hearing

Talking Points Memo

Some quick impressions of the high stakes hearing in the Paul Manafort case in Virginia:

Federal judges are often cranky! Don’t read too much into U.S. District Judge T. S. Ellis III’s reported disposition toward Mueller’s team.

Harsh treatment by the judge in a motion hearing doesn’t necessarily signal which way the judge is going to rule. Sometimes a judge will give a particularly hard time to the side he or she has already decided to rule in favor of.

I’d still be surprised if Manafort wins dismissal, but Manafort does have the thread of an argument here. The timing of the Aug. 2, 2017 memo from Deputy Attorney General Rod Rosenstein to Special Counsel Robert Mueller is fishy. It suggests they were anticipating an argument over the scope of Mueller’s authority, but it came nearly three months after his appointment. The memo also came after investigators under Mueller’s direction had raided Manafort. That doesn’t settle the argument, but it gives Manafort a leg to stand on.

The judge asked why Mueller didn’t hand off the Manafort case to line prosecutors the way he did the Michael Cohen case in New York City. It’s a good question – I’m curious, too, about what prompted the decision to do so in the Cohen case, and how that fits with the parts of the probe Mueller is holding on to – but I don’t think that question is determinative of the motion to dismiss.

Ellis seems eager to see what else is in the redacted Aug. 2 memo. The only part made public involves Mueller’s authority to investigate Manafort; all his other authorizations we’re blanked out. I’d be eager to see the unredacted memo, too! But again it doesn’t strike me as terribly relevant to the motion to dismiss.

I wouldn’t begin to hazard a guess as to which way Ellis will rule. But it does feel like the expectations have grown so outsize that any legal setback Mueller’s team suffers will be a shock to the system. Yes, prosecutors have huge systemic advantages in the federal system, but Mueller’s team is going to lose some arguments, perhaps some cases. These are complicated criminal cases, in uncharted legal territory in some instances, under enormous public scrutiny, with immense stakes for those involved and for the country. The judges in these cases know it, too. We’re just getting started.

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