The Manafort trial has attracted a lot of media attention over the last few days, seemingly all of it centered on the dramatic evidence presented by the government and the dramatic admonitions of that prosecution by Judge T.S. Ellis III.
Ellis is a Navy veteran who was appointed to the bench by President Ronald Reagan, and the working assumption seems to be that he’s a rock-ribbed Republican, and thus on the side of the president. President Donald Trump even praised Ellis for admonishing the government during a pre-trial hearing, calling him a “great judge.”
As a veteran defense lawyer in Ellis’ courtroom (whom he once sent the FBI to protect), I don’t believe that his actions are a product of whatever his political views might be — even though, through a strictly political lens, many people on both sides seem to accept that he is hostile to the government and their case.
But I’ve spent nearly my entire career defending criminal cases in the Eastern District of Virginia and, having watched the Mueller team in action, I believe that they earned Ellis’ opprobrium with their lack of respect for his work and the jury’s time.
Granted, Robert Mueller is the best the Department of Justice has to offer, a respected veteran of the Marine Corps, the University of Virginia School of Law, the Department of Justice and the Federal Bureau of Investigation — institutions where trust, skill and integrity are prized. And the people who work for him are exactly the people he wanted, each of them having significant experience in the exact kinds of cases his office was tasked with investigating.
In addition, the Mueller team has employed other agencies and United States Attorneys’ Offices to help in his investigation, and they have used grand jury subpoenas to bring some very uncooperative witnesses in to talk. They seem to have the facts on their side in the Manafort case, too, from millions of dollars of profligate spending to an almost complete lack of compliance with things like tax filings and Foreign Agent Registry Act reporting. They even have the damning testimony of Manafort's bookkeeper and his long-time deputy.
But even though this case seems to be an important piece of a larger effort to get to the bottom of what happened in the 2016 election, something in which every American has an interest, the fact remains that the Mueller team has to actually try Paul Manafort in this case, and only Paul Manafort. And no matter how strong their evidence, how righteous their cause or how impressive their resumes may be (and actually are), they simply haven’t done a very good job.
This case started with the Mueller team first appearing in Ellis’ courtroom without consulting the local United States Attorney’s Office. The Eastern District of Virginia has perhaps the best collection of prosecutors in the entire nation, and Ellis doesn’t see much of a need for anyone from across the river coming to help, let alone coming in to prosecute a case on their own. Besides, things are a little different in the Rocket Docket (as the Eastern District is known) generally and in Judge Ellis’ courtroom specifically; but, as the American Bar Association says, if you’re appearing in a new courthouse, bring an experienced local attorney with you — even if you are the deputy solicitor general.
The Mueller team’s mistakes didn’t stop there. Though they did bring Uzo Asonye, a veteran assistant United States attorney in Alexandria, along with them after that first hearing, they didn’t let him speak at the motions hearing in May where Michael Dreeben, perhaps the nation’s premiere appellate advocate, appeared to be poorly prepared and less than candid with the court, earning them more of Ellis’ ill will.
And though much has been made of the fact that Ellis interrupted and reprimanded the government from the first moments of the trial, even interrupting their opening statement, the Mueller team invited those interruptions by repeating the exact factual claims Ellis had already ruled were irrelevant to the case at hand. An important part of a judge’s job is to make and enforce his or her rulings; unlike on television, lawyers don’t get to make grand pronouncements in violation of rules and rulings just because they make for great television.
That same sort of treatment has continued throughout the trial. The prosecution continued to bring up irrelevant points, even though they are often narratively compelling. They’ve rolled their eyes and complained, and even once argued that they should be able to present a chart the judge had excluded because the witness took a long time to make it, rather than telling him why they thought it was relevant.
Ellis is certainly demanding: He is, as I’ve heard him say, “a Caesar in [his] own Rome,” (even if, as he also likes to say, “it’s a pretty small Rome.”) He is also among the best the federal judiciary has to offer. Ellis has impressive credentials, perhaps eclipsing even Mueller’s, having served as a Navy F4 Phantom pilot after graduating from Princeton and adding a degree from Oxford as a Knox Fellow to his resume after graduating from Harvard Law School.
Over the last 30 years or so on the bench, he has shown the remarkable intellectual acumen necessary to competently preside over cases many lawyers and judges would rightly try hard to avoid.
While he’s accused of being pro-defendant in this trial, and has certainly held the government to high standards over the course of his career, he’s also been roundly criticized for being very pro-government. I have personally appealed several of his decisions to the Fourth Circuit, and have only won once.
Last Monday, Greg Andres, currently the lead counsel for the government, threatened to appeal on the grounds that Ellis has interrupted and admonished the government too frequently; trust me on this, his appeal won’t go any further than mine did.
And, though almost all of the coverage of this trial mentions the breakneck speed of the Rocket Docket, the truth is that Ellis is the slow judge around here. He will entertain and examine any argument that may even marginally affect the outcome of a case (and ad nauseum at that), but with a jury in the box he demands that lawyers speak clearly, follow the rules, stick to what’s relevant and keep the imposition on the jurors’ time to a minimum.
If you want things to go better in his court you have to live up to the high standards he demands. Every attorney who has ever tried a case before him knows this, including literally hundreds of current and former assistant United States attorneys. Anyone who has simply Googled Judge Ellis’ name and read the coverage of other famous cases he’s presided over knows this, too.
Greg Hunter is a criminal defense lawyer in Arlington, Virginia.