A few observations on the Manafort hearing transcript

[jberryhill]

Last edited Sun May 6, 2018, 09:59 PM - Edit history (1)

The way a motion hearing works is that the parties submit their written arguments on a particular question - in this case whether the special prosecutor has authority to prosecute the charges in this indictment. These briefs are dissected by the clerks, who assess which parts of what arguments are well supported, which parts aren't, and who also research the relevant law in order to assist the judge's review of the briefs. When the parties come to argue the motion, they each get a set amount of time during which they are to present their argument and answer questions by the judge.

The judge is going to eventually issue a decision which either side is likely to appeal. One of the most frequent things that happens on appeal is that a case is remanded - sent back to the district court for a do-over on some particular issue which the appeals court believes was not adequately considered. The judge would prefer that not to happen. The judge may have some idea of where he or she would like to go with a decision, what criticisms might be made of that position, and will often fish for the parties to define the limits of their positions. For example, if a judge were considering whether the president could be indicted would, in the face of an argument advancing absolute privilege from indictment, ask a question about an extreme situation like, "What if the president shot someone in the middle of Fifth Avenue? Is it your position that he couldn't be indicted for that?" just to see if the attorney will follow the logic off of a cliff, or whether the attorney will define some set of limiting circumstances.

Dreeben got off on a bad foot early. If the judge wants an answer to a simple factual question, you give an answer to that simple factual question, you don't start into your argument. Take this one:

THE COURT: All right. The indictment
against Mr. Manafort was filed in February, but it
actually was antedated by a filing in the District of
Columbia. These allegations of bank fraud, of false
income tax returns, of failure to register or report
rather, failure to file reports of foreign bank
accounts, and bank fraud, these go back to 2005, 2007,
and so forth. Clearly, this investigation of
Mr. Manafort's bank loans and so forth antedated the
appointment of any special prosecutor and, therefore,
must've been underway in the Department of Justice for
some considerable period before the letter of
appointment, which is dated the 17th of May in 2017.
Am I correct?

MR. DREEBEN: That is correct, Your Honor.

See, that's easy. No problem...

THE COURT: All right. So when the special
prosecutor was appointed -- and I have the letter of
appointment in front of me -- what did they do? Turn
over their file on their investigation of Mr. Manafort
to you all?

MR. DREEBEN: Essentially, Your Honor,
special counsel was appointed to conduct an
investigation --

THE COURT: I'm sorry. Answer my question.
Did you remember what my question was?

The question was, did the previous investigators turn over their file when the special counsel was appointed. That's a simple question about the order of events which the judge is looking to nail down before moving on. Dreben starts to answer by launching into an explanation of why the special counsel was appointed, and is trying to get ahead of things. And so he comes back with:

MR. DREEBEN: Yes, Your Honor, and I was
attempting to answer your question. We did acquire the
various investigatory threads that related to
Mr. Manafort upon the appointment of the special
counsel.


That "I was trying to answer before you interrupted me" line could have best been left unsaid. He starts rubbing the judge the wrong way early and often.

The hearing can often take the form of an almost role play game. In the sorts of passages that people are freaking out over, the judge proposes a perspective on the arguments and concludes with:

"Where am I wrong in that regard?"

If the judge lays out a view of the case and says, "Where am I wrong?" You tell the judge where what he said is wrong. You don't go on a roundabout description of your view of the case, which Dreeben does, thus bringing the judge back to...

THE COURT: Yes. Now I asked you: Where am
I wrong about that?

MR. DREEBEN: Your Honor, our investigatory
scope does cover the activities that led to the
indictment in this case.

THE COURT: It covers bank fraud in 2005 and
2007?

MR. DREEBEN: Yes, because --

THE COURT: Tell me how.

MR. DREEBEN: Your Honor, the authorization
for the special counsel to investigate matters is
described generally in the appointment order on May --

THE COURT: I have it right in front of me,
and it won't surprise you to learn that I'm fully
familiar with it. My question to you was, how does
bank fraud and these other things that go back to 2005,
2007, how does that have anything to do with links
and/or coordination between the Russian government and
individuals associated with the campaign of Trump?

MR. DREEBEN: So the authorization order
permits investigation of two different things that are
described in separate clauses. The first are links and
coordination between individuals associated with the
Trump campaign and the Russian government's effort to
influence the election. Mr. Manafort was a campaign
official.

THE COURT: You're running away from my
question again. You know, I'm focused on the
indictment that is here.

The judge was really asking a pretty simple question. So, trying one more time, he goes back to language in question in the authorization:

THE COURT: All right. I think you would
agree that the indictment that we have before the Court
is not triggered by (i), which says, "any links and/or
coordination between the Russian government and
individuals associated with the campaign of President
Donald Trump." Bank fraud in 2005 and other things had
nothing whatever to do with that.

....

MR. DREEBEN: So I would take a different
look at the way this order works than Your Honor's
description for a couple of reasons.

THE COURT: All right.

MR. DREEBEN: The first is...

Yay! At long last, Dreeben decides to discuss the case the way the judge wants to do it.

All Dreeben really had to do was to explain that (which he gets to) "links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump" is inclusive of pre-existing links between the Russian government and such individuals which, in fact, this indictment does. The indictment in this case is all about interesting things that Manafort did with money he got from Russian-allied Ukrainians.

The judge then proceeds with some other prodding to get a clear answer out of Dreeben, without a lot of success, and then goes on what has been characterized as a rant to the effect of "I'm trying to get you to give me a clear boundary of what may or may not be within the special prosecutor's scope, so don't try to weasel around the fact that the scope is intended to be limited" - in so many words (that's my paraphrase).

Dreeben was being a little too cautious to avoid being boxed in, but that part of the argument ends with an invitation for him to clear up the mess so far:


All right. I think you answered my
questions, Mr. Dreeben. If you want to say anything
else -- now, of course, you're going to have a full
opportunity to respond to the defendant's arguments,
but I had some preliminary questions, which I think
you've answered.

Then, and finally at long last, Dreeben uses the opportunity to discuss the further clarifying letter from Rosenstein which defines this prosecution to be clearly within scope. That letter, so far made available to the court in redacted form, specifically defines two lines of inquiry about Manafort. Most of the rest of the letter is redacted. The judge asked to see the full unredacted letter, simply to make sure that the redacted portion doesn't relate to Manafort or would possibly narrow the lines of inquiry about Manafort.

The judge then turns to the defense, and that part of the hearing wasn't reported on very much. First off, the judge is almost patronizingly humorous toward the defense, but I've highlighted some "things you didn't hear in the media":


THE COURT: Thank you.
All right. I have actually heard probably
most of their argument, and I haven't heard all of
yours. You may now tell me what you think.

MR. DOWNING: Well, first of all, Your Honor,
good afternoon -- or good late morning.
I didn't know if you had any questions you
would like me to start off with answering as opposed to
just reiterating what's in the brief, but I will say --

THE COURT: Well, I don't want you to
reiterate what's in the brief. I've read that.

MR. DOWNING: Okay.

THE COURT: It's now your opportunity to
bring out what really you think is dispositive in some
arresting, interesting way.

MR. DOWNING: That's setting the bar high.

THE COURT: I reminisce a lot. The world has
changed. I was a student in England in the late '60s,
and I went to many oral arguments. They didn't use
briefs at all in the cases I went to. In the House of
Lords, the judges appeared in suits, and the lawyers
appeared and the barristers appeared in wigs and robes.
They together bent down, pulled books off the shelf,
and read cases together and argued about them. I
thought that was a charming but ineffective way to do
things. Writing briefs is much more effective, but
then it kind of renders oral argument a little more
uninteresting.

Tell me why -- you've heard him say -- I mean
their argument is fairly straightforward. They say you
look at the May 17 letter. It says any links and/or
coordination between the Russian government and
individuals associated with the campaign of President
Donald Trump; secondly, any matters that arose or may
arise directly from the investigation. Which I focused
on their investigation rather than the Department of
Justice's, but that's a fair point. And then the third
one is any other matters within the scope of 600.4 of
Title 28, Code of Federal Regulations.
Then counsel appropriately called my
attention to the August 2 memorandum from Rosenstein
which amplifies that a bit. Of course, most of the
letter is redacted, but I'm advised that that doesn't
have anything to do with Mr. Manafort. I'm going to
look at that myself.

But that goes on to say whether crimes were
committed by colluding with Russian government
officials with respect to the Russian government
efforts to interfere with the 2016 election for
president. That was pretty clear from the May letter.
But then they go on to say committed a crime or crimes
arising out of payments he received from the Ukrainian
government before or during the tenure of President
Viktor Yanukovych.

Well, we could argue all day here and not get
very much clarity on whether there's a difference
between the Ukraine and Russia. Of course, I wasn't
there any later than about 40 years ago, but if you ask
the average Ukrainian, they will tell you there's a
huge difference.


On the other hand, the government makes a
very powerful point. Yankovych's operation was
supported by the Russian government. He did
essentially what they wanted him to do, but he's not
there anymore. People are killing each other in the
eastern Ukraine. My hunch is that it's Ukrainians and
Russians that are mostly fighting.


Okay, now, did anyone notice the headline screaming "Judge Calls Mueller's Argument 'Clear' and 'Powerful'"? Yeah, I missed that headline too.

The judge lets the defense ramble on for a while, and responds:

THE COURT: Well, let me ask you: So what?
In other words, is what you're arguing that the use of
that investigation in this case is contrary to the
regulation that requires the acting attorney general
here, Rosenstein, to be specific about what areas he
wants investigated, and you're saying he was too
general. In this supplemental, doesn't he remedy that
in the August 2 letter?

Of course he does. The argument on the defense seems to read that some of that section of the hearing was letting the defense fill its time. But there is an interesting exchange toward the end, when the defense makes a play for getting internal DOJ documents it claims to exist...

THE COURT: Do you have anything else to add?

MR. DOWNING: Just briefly, Your Honor. The
one thing we would ask this Court to do before deciding
the motion before the Court is to ask the government
for what anybody who has had any experience with the
Department of Justice knows exists, which is the
written record. Where is the written record before
Mr. Mueller was appointed? Where is the written record
about the decision --

THE COURT: What do you mean by the written
record?

(the defense goes on to describe various DOJ procedures under which memos may have been generated)

THE COURT: What good would that do me if I
had all of that in front of me?

MR. DOWNING: It might show you exactly
whether or not Mr. Rosenstein violated the regs or
whether he complied with them.

THE COURT: I don't know about regulations,
but let's suppose he violated. Of course, counsel has
already pointed out that that's, in his view,
irrelevant. But let's suppose it shows that, that
Rosenstein didn't do a good job. So what?

MR. DOWNING: So our position is that to the
extent that Mr. Rosenstein exceeded his authority to
appoint a special counsel, the special counsel does not
have the authority of a U.S. Attorney.

THE COURT: Thank you.

MR. DOWNING: Thank you.

THE COURT: All right. I'll take the matter
under advisement.

Did you wish to respond to this last point?

MR. DREEBEN: No thank you, Your Honor,
unless you have any questions.

THE COURT: Good choice on your part.

I translate that as "Do you have anything to say about the irrelevant rathole the defense just went on about?"

Overall, I can see that Judge Ellis was somewhat annoyed that Dreeben was coming across as unduly cagey about exactly when any investigation of Manafort began, and how it came to be covered by the special prosecutor, and pressed Dreeben to be clear on the scope of the special counsel and why this indictment fell within that scope.

Then, the judge turns to the defense and says "The government has a pretty clear and strong position, what say you?" and at each turn says "So what?" to every position the defense advances.

[DUgosh]

1. Wow!

Thank you for posting this. Very interesting.

[triron]

13. Yes 2nd that.

[Yonnie3]

2. Thank you for taking the time to make this post. nt

[GusBob]

3. So the press said the judge lost his temper

It's tough to tell from these passages here in text, but maybe when he says: your running away from the question.

And props to you on being spot on earlier this week

Lol Trump was crowing about this hearing, saying the judged was well respected

Some toady yes man had it wrong, or Trump was fooled by the press reports

Thanks for the post! Finest kind. I guess folks around here that are saying the judge should recuse himself will be chiming in promptly

[jberryhill]

7. It's usually impossible to tell where a judge will end up from the hearing

But what sucks is knowing that no matter what decision you write, it's going to get picked over by as many as 25 other judges (the bench of the Fourth Circus and the Supreme Court).

The hearing also has to be understood in the context of the arguments advanced in the briefs, and this entire motion seems simple enough that I haven't looked at them. Suffice it to say, the judge did before the hearing.

[writes3000]

4. Thanks for sharing your insight on this. Very much appreciated.

[unblock]

5. Thanks for digging through this!

It doesn't seem like the media, as usual, went for the angle that was more dramatic than reality and more slanted toward Donnie's side than reality.

[Sophia4]

6. Agreed.

In addition, it might be interesting for readers to understand that the federal judge has law clerks who may have recently graduated from law school attending the hearing The law clerks may even be law students in some situations. At any rate, in terms of their grades and performance, they are near or at the top of their law school classes and are chosen for their intelligence and ability to work hard.

A judge's law clerks write some or maybe even all of the opinions of the court. They at least do any research and writing the judge asks them to do. They are often in the hearing room during trials and motion hearings and learn a lot from the discussion.

Oral argument does not just inform the judge. It also informs the judge's law clerks and helps them find direction in their research and writing.

I am assuming that in a case like this the judge's law clerks are in the courtroom.

At least that is the way the courts used to work. I suspect that has not changed.

[jberryhill]

9. Yep

To avoid reacting during the other side's presentation, I usually pick a clerk and lock eyes, so I can mirror the completely unreactive demeanor of the clerks during the hearing. They are the silent oases of calm in any proceeding.

Dreeben was doing the "active listening" thing when the judge was speaking:

By the way, don't nod or shake your head out
here because it interrupts the speaker. It's rude, and
it has often the opposite effect you may -- I was never
able to do that by the way. When I was sitting where
you are, I nodded and shook my head all the time.
Despite the fact that it aggravated judges, I did it,
and I regret that. My perspective is a little
different now. I expect you to do what I was unable to
do. Don't worry about it. It's not a big deal.

Go ahead.

MR. DREEBEN: Thank you, Your Honor.

When it is your turn to speak, you speak clearly and expressively. When it is not your turn to speak, you don't nod, roll your eyes, huff and puff, raise your eyebrows, or anything else. You remain alert and attentive, but motionless and silent.

I once had co-counsel give me a visible elbow nudge at the table while the judge was wrapping the other side around a fence post at a motion hearing. That was infuriating.

[sharedvalues]

23. On that note

Link to tweet

Rachel Weiner
‏@rachelweinerwp

To be clear, Judge Ellis likes to be tough -- maybe even mean -- especially to DOJ lawyers with fancy pedigrees. Doesn't mean he's going to rule against them.

Link to tweet

Fancy pedigrees? He went to Princeton, Harvard Law, and Oxford.


Yes, and he wants to remind them he's smarter and more accomplished than they are

[sprinkleeninow]

36. One time here...🤔, 🇾 🇪 🇸

[Sophia4]

52. Absolutely correct.

[canetoad]

8. K&R

Thank you.

[skylucy]

10. Excellent OP! Thanks for posting this!

[rzemanfl]

11. Your post got a lot of recs during the time I spent reading it and adding mine.

Thank you for taking the time to write the OP.

[FailureToCommunicate]

12. That is some granular detail! Facinating.

[bluestarone]

14. TY

You did lot of work for us all ! TY again

[JoeOtterbein]

15. Double WOW!!!

Thanks for taking the time to post this!!!!!

[Leighbythesea]

16. Thank you

This was immeasurably helpful.

[The Velveteen Ocelot]

17. Thanks for taking the time to sort all this out.

My experience as an appellate court clerk and later as an appellate lawyer (long ago retired) is that it can be very hard to know how a judge or court is going to rule because they often ask negative or even apparently hostile questions just to see if you can defend your position. They'll poke you with a sharp stick just to see how you react - do you know what you're talking about or do you start gibbering like Rudy Giuliani? It's rarely productive to try to predict an outcome.

[sharedvalues]

18. Also to add- Dreeben is perhaps the most famous attorney in DOJ

This judge Ellis apparently likes to put smarty pants lawyers in their place and remind them he is the judge.

And Michael Dreeben is the ultimate smarty pants lawyer. He is perhaps the most respected appellate counsel in the country. (In a class with Katyal, Olson, Clement, and a few others.) And the rest are in private practice. So he is the most respected appellate counsel in DOJ.


So if you’re a judge that gets off on power trips, this is the guy you live to slap down. Might just reflect some of that too.

[sprinkleeninow]

37. Next time, here....🤔, 🇾 🇪 🇸

[CaptainTruth]

19. Thank you for posting that! It clarifies a lot. nt

[grantcart]

20. If I tell you how fantastic this OP is, am I going to get billed?

I should point out that I had a major victory in court this week. I was so well prepared to defend the charges that the citing officer didn't even show and the ticket was dropped.

I am guessing that none of the Presidents' lawyers didn't bother to explain what you have explained and thinks he is going to win.

[FakeNoose]

22. K & R bookmarked

Thank you - this is awesome!

[Bernardo de La Paz]

24. Very much appreciate your analysis and the time you took preparing this. Bookmarked . . .nt

[Pluvious]

25. Damn, that was fascinating, thanks so much nt.

[MarkEzra]

26. thank You

The Judge sounds like a very smart man.

[pnwmom]

27. Would you mind giving me a non-DU link on that transcript? I want to send it to someone

who isn't a Democrat.

[jberryhill]

32. here

https://www.justsecurity.org/wp-content/uploads/2018/05/US-v-Manafort-full-text-transcript-hearing-motion-may-4-2018.pdf

[rainin]

28. Is there any truth to the rumor that the judge was appointed by Trump?

I haven't found the judges name to check myself. I'm assuming not. Also, hoping not.

[The Velveteen Ocelot]

30. He's been on the bench for a zillion years and is actually retired -

or semi-retired. He's on senior status and possibly has a reduced case load. I believe he was appointed by Reagan.

[jberryhill]

33. He occasionally sits by appointment on the Fourth

There are some real dinosaurs in EDVA, but Ellis seems like a real charmer compared to Hilton.

[emulatorloo]

29. Thanks very much for putting the time in

[RandomAccess]

31. Simply magnificent

analysis. Thanks so very much.

[George II]

34. My take was that the judge was being the devil's advocate, trying to seem impartial....

We'll have to wait to see, but I think Manafort is screwed to the wall.

[DDySiegs]

35. Superb Post, jberry!!!

[grantcart]

38. Kick

[Gothmog]

39. This judge tends to be hard on everyone

Link to tweet

Link to tweet

Link to tweet

[PJMcK]

40. K & R and many thanks

Your insights are excellent and clearly expressed, as usual.

The press reports about the hearing seemed a bit weird. It was almost as if they wanted Robert Mueller to stumble. You've clarified what was probably actually happening in that courtroom.

It will be interesting to read your analysis of the judge's rulings.

[yonder]

41. Thanks for laying that all out. nt

[SidDithers]

42. I always enjoy your posts, John...

Thanks for taking the time to share your experienced view of the proceedings.



Sid

[jberryhill]

43. Manafort should have hired Cohen

"So what?"

"Says who?"

"So what?"

"Says who?"

They'd keep each other busy for hours.

[SidDithers]

45. I don't know...

Third base!!



Sid

[arthritisR_US]

44. Thank you for posting this. My understanding of

court proceedings and the back and forth between the various parties is tacit at best. Your assessment and clarifications are very much appreciated👏🏼👍🏼🙂

[erronis]

46. I've learned lawyering and US legalities more through DU than through my many encounters and friends

I've worked around DC and have had dealings with civil and federal issues using legal representation to present my cases. IANAL.

This type of freely shared experiences in dealing with the courts is invaluable and I'm sure it will be gleaned in the future (as is all.)

Thank you.

[Achilleaze]

47. Thank you

[Nictuku]

48. jberryhill: Thank you for taking the time

I really appreciate your analysis and information you shared here.

Have a good day!

[Pepsidog]

49. Excellent job. Oral argument rarely sways a judge's decision. In a vast majority of of motions, the

Judge has already made up his/her mind before oral argument and often have a written tentative decision available before oral argument. In 30 years of trial work I have rarely seen a Judge change their decision based on oral argument, at least on the State level. I have seen judges decide that they need more evidence or facts before they decide and order a plenary hearing where witness testimony is illicited.

[BobTheSubgenius]

50. I would like to add my great appreciation to the applause above.

A great glimpse into proceedings most of us - with luck - will never experience first-hand.

With the preceding sentence in mind, I'm having a bit of a time deciding how I feel about it. Naturally, the hope is that Manafort's defense team would look bad on an old episode of Night Court, and even the weakest link on the govt. side would be, say, Clarence Darrow.

My sense of it is that Judge Ellis more or less set groundrules, or at least expectations of what this case is going to be like in his court. I find it hard to believe that anyone handling a case at this level needs to be told, but seeing and hearing it in the same room you are in is probably a pretty forceful reminder.

So....no winner, no loser, not even an early favourite. Is that fair?

[BobTheSubgenius]

51. Oh, yes.

And thank you again! A pretty impressive amount and quality of work right there. We appreciate it.