There's no such thing as 'absolute immunity' for former presidents
Judge in the Manafort trial is creating some big problems
"What is a yute?" That famous question from the classic movie "My Cousin Vinny" captured the open animosity between Judge Chamberlain Haller, played by actor Fred Gwynne, and Vinny Gambini, played by actor Joe Pesci. When Haller feigned confusion over a heavy accent, Gambini explained, "Oh, excuse me, your honor ... Two youths."
Judge T.S. Ellis III appears to be racking up such "yute" moments while presiding over the ongoing trial of former Trump campaign chairman Paul Manafort. Ellis, who has long had a controversial record for his courtroom outbursts, has repeatedly attacked the federal prosecutors from the Justice Department office of the special counsel.
His actions are creating serious potential problems for the case. Before the trial began, he made highly problematic comments about the motivation of special counsel Robert Mueller's team in pursuing Manafort to pressure him to turn on President Trump. Many of us agree with this take on the prosecution, but it is not the domain of a trial judge to opine on prosecution strategy or other extrinsic issues.
During the trial, some of the comments from Ellis have been less comical than cringeworthy. Consider this truly bizarre exchange with prosecutor Greg Andres, reported by Bloomberg News. When he was criticized for openly chastising the prosecutors over their inclusion of details of Manafort's dealings with Ukrainian sources, Ellis went off on Andres.
Ellis said, "Look at me when you're talking to me." Andres replied, "I'm sorry, judge, I was." Ellis disagreed, "No, you weren't. You were looking down." Andres said, "Because I don't want to get in trouble for some facial expression. I don't want to get yelled at again by the court for having some facial expression when I'm not doing anything wrong, but trying my case." Ellis told another prosecutor, "You must be quiet."
Andres said, "I'm sorry, judge." Ellis replied, "Well, I understand how frustrated you are. In fact, there's tears in your eyes right now.'' Andres told him, "There are not tears in my eyes, judge." Ellis said, "Well, they're watery. Look, I want you to focus sharply on what you need to prove the crime, and I don't understand what a lot of these questions have to do with it." If you want to score the trial, that would be a two "yute" moment.
It was reminiscent of the movie when Haller asked Gambini if he was on drugs and lambasted his clothes and "attitude" in the courtroom. During the trial, Ellis continued to fire barbs at the prosecutors in front of the jury. The prosecutors finally had enough a few days ago when Ellis, 78, was forced to give a reluctant and belated apology after slamming them for allowing an expert witness to sit through the trial before he testified.
Ellis was irate and criticized the prosecutors for violating his rule barring witnesses from doing so. The problem is that Ellis expressly allowed the witness to listen to testimony in an order on the first day. Rather than bring the prosecutors and defense counsel to the bench to discuss the issue, Ellis railed against the prosecutors in front of the jury. After a filing that demanded a public correction by the judge, Ellis told jurors he "may have" made a mistake and asked them to disregard his prior tirade.
That was a three "yute" moment. An even more serious mistake was committed as the government wrapped up its case this week. Prosecutor Uzo Asonye had spent about 40 minutes questioning a bank employee about Manafort's attempt to get a $5.5 million construction loan on a Brooklyn brownstone. That is not an unusual length of time, but the judge, yet again in front of the jury, lashed out at Asonye and declared, "You might want to spend time on a loan that was granted."
The clear import for the jury was that this effort was not worth even a half hour of testimony because nothing came from it. However, the problem is that an attempted loan is a charged count in the indictment, and the judge seemed to suggest that it was a worthless pursuit. It also fundamentally misrepresents the law because if Manafort made false representations to try to secure loans, that amounts to a federal crime.
That is a four "yute" moment that could create an appellate issue or even a demand for the recusal of Ellis. For the prosecutors, however, the priority is securing a conviction to continue to drill down on Manafort. The testimony of Rick Gates was not as good as the government may have hoped, but it was good enough. Gates came across as a jetsetting cad who stole from Manafort while pursuing as many as four affairs involving expensive travel and accommodations. However, Gates does not have to appear great so long as Manafort appears worse, and so far, he does.
The government has proven the existence of foreign accounts and how not just Gates but Manafort's own accountants believed they were likely committing criminal acts. It is never a good sign when your accountant will testify about your filings only with a guarantee of immunity. That brings us back to Ellis. The most damaging statements before the jury have come from the bench, rather than the witness stand.
The prosecutors have suggested that they may have reached the limits of their patience. Indeed, Andres finally lost his patience with the continued interruptions by Ellis during examinations and noted, "Your honor stops us and asks us to move on." Ellis dismissed the objection and said the lawyer could defend his record on any appeal. Andres shot back, "I will stand by the record, as well." Ellis replied, "Then you will lose."
Ellis, who received a law degree from Cambridge University, often seems more like a British judge, who would be allowed a much more active role in questioning witnesses and commenting on cases. American judges work diligently to maintain a role more like a referee than a player. Still, the Fourth Circuit has repeatedly heard objections to Ellis, but he knows appellate judges are loathe to reverse convictions based on judicial bias. Appellate courts steer away from micromanaging trials and fear that disciplining judges could produce a flood of such challenges.
Thus, even when one defendant objected that Ellis was "essentially taking on the role" of a prosecutor, the Fourth Circuit dismissed the objection by noting that Ellis had interrupted the prosecutors "virtually the same number of times" as the defense counsel. It certainly did nothing to address the controversial record of Ellis, who routinely berates lawyers and makes unprofessional comments in the courtroom.
Such decisions have left Ellis with an openly expressed sense of immunity. He once declared, "I am a Caesar in my own Rome. It is a pretty small Rome." But claiming unbridled authority did not exactly work out well for Caesar. While removal or reversal is rare, so is the four "yute" judge.