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Prosecutors and the Rule of Law

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Late last week, a federal judge in Alexandria, Virginia, questioned the authority of special counsel Robert Mueller to seek an indictment and pursue the prosecution of former Trump campaign manager Paul Manafort for alleged financial crimes that, according to the indictment, began and ended well before Donald Trump ran for president. Mueller was appointed special counsel by Deputy Attorney General Rod Rosenstein because of allegations that Rosenstein accepted of a conspiracy by members of the Trump campaign to accept assistance from a foreign person, entity or government, which is a felony.

The application by Manafort's lawyers before Judge T.S. Ellis III was actually a motion to dismiss the indictment against Manafort for want of jurisdiction. Stated differently, Manafort argued that Mueller exceeded the authority granted to him by the Department of Justice and thus he has no legal ability — jurisdiction — to prosecute Manafort. During the course of the oral argument on this motion, the judge opined that in his view, Mueller is only prosecuting Manafort for bank and tax fraud to squeeze him to testify against President Trump on matters that might be impeachable.

The judge's comments as to Mueller's motivation are dicta. Dicta are the unsolicited, unnecessary and often personal opinions of the court on matters not strictly before the court and not integral to the court's ruling. Stated differently, there is an abundance of speculation in the media but zero evidence in the record before Judge Ellis — zero — on which he could base his opinion; and his opinion of the prosecutor's motivation is irrelevant. It made national headlines because Trump supporters agree with it, and it is probably accurate — but it is legally meaningless.

Even if Judge Ellis were to dismiss the indictment against Manafort for want of Mueller's jurisdiction, the dismissal would mean only that Mueller cannot prosecute Manafort, not that Manafort cannot be prosecuted on these charges.

If the present indictment were to be dismissed, the local federal prosecutors in Alexandria would present the Mueller-gathered evidence against Manafort to another grand jury and ask it to issue a new indictment that makes the identical charges as those now pending. Then they would prosecute Manafort on the same charges that Mueller originally brought. The financial crimes charged, though unrelated to Mueller's initial duty of looking for a conspiracy between the Trump campaign and foreigners, are real, and no federal prosecutors with jurisdiction could ethically overlook them.

Judge Ellis' actual ruling — clouded by the fog of his dicta — gave Mueller two weeks to demonstrate his lawful jurisdiction. He can easily do that with a letter from Rosenstein. The letter can even be retroactive. Thus, all this focus on Judge Ellis' personal opinion of Mueller's motivation is much ado about national politics and has little to do with the rule of law. Who cares what a judge thinks about the motivations of the prosecutors?

The practice of indicting a person for a matter utterly unrelated to the core of the government's investigation in order to turn the indicted person into a government witness, though often repellant, is commonplace and has received approval by numerous Supreme Court opinions. Clearly, obtaining a guilty plea from retired Lt. Gen. Michael Flynn, the president's former national security adviser, for lying to FBI agents about the existence of a lawful telephone conversation and obtaining a guilty plea from Rick Gates, Manafort's former business partner and deputy Trump campaign manager, for lying about who said what at a lawful meeting are parts of a plan to get these folks to give evidence or testimony about the president that prosecutors want to hear.

I have characterized this prosecutorial behavior as extortion or bribery, but I am in a small minority in the legal and judicial communities. The courts have made clear that prosecutors can nullify prison exposure by reducing charges to induce the testimony they want from a witness. Yet if defense counsel gave the same witness so much as a lollipop to shade his testimony, both would be indicted for bribery.

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