U.S. District Judge T.S. Ellis III got a lot of heat on Thursday for sentencing former Trump campaign chairman Paul Manafort to 47 months in prison — a far cry from the 19.5-24 years the Special Counsel’s Office cited according to sentencing guidelines.
Now we have nearly 100 pages worth of transcripts from that fateful day in Ellis’ courtroom, and many details jumped right off the page. Here are some highlights that provide more context regarding how Ellis arrived at the sentence he handed down.
A preview of the sentence to come
Ellis prefaced everything by mentioning that sentencing guidelines are “advisory.” He would emphasize this point many times over the course of the 90-plus pages.
“As I’m sure most of you, if not every one of you, knows, the sentencing guidelines are advisory. They are not mandatory as they once were. They’re one factor for the Court to take into account in imposing an appropriate sentence,” he said. “And there is a statute that itemizes the factors the Court is required to consider in imposing an appropriate sentence, and the guidelines is merely one of those factors.”
Can’t resist hinting at his skepticism of special prosecutions
Ellis infamously told Mueller and his prosecutors that he didn’t believe they really cared about Manafort’s bank fraud. Ellis also expressed concerns about the tendency of special prosecutions to become politicized in a manner he does not like. Therefore, he went back to the “this case is not about collusion” well.
“[Manafort] is not before the Court — let me underscore, he’s before the Court for those counts on which he’s been found guilty and the related conduct. And the counts that were hung, the facts of those are also to be part of the sentencing consideration,” Ellis said. “He is not before the Court for any allegation that he or anybody at his direction colluded with the Russian government to influence the 2016 presidential election.”
Although Ellis said that Mueller was well within his broad mandate to prosecute Manafort for these crimes, Ellis also hinted he was still pretty miffed about the concept of a special prosecutor.
“And there is much discussion about why the special prosecutor has it. I would remind those of you that I faced that issue at the beginning of this case. There was a motion brought by the defendant, arguing that the indictment being pursued by the special prosecutor was illegitimate,” Ellis said. “I heard that case, and I issued an opinion, and I concluded that it was legitimate. The grant of power to the special prosecutor was broad enough to cover this.”
“That doesn’t mean that I decided the wisdom or appropriateness of delegating to special prosecutors broad powers that are not at times — or a subject matter,” he added. “But I didn’t have to decide that. It’s not before me.” Why mention it then?
Ellis knowingly puts words in the mouth of the defense attorney, then allows him to go off on Mueller
Ellis turned next to Manafort defense attorney Kevin Downing and asked him to explain what the deal was with those 50 hours Manafort spent being interviewed by the Special Counsel’s Office. But first, Ellis teed it up for Downing.
“Now, the argument I’m going to hear — and I want you to put some flesh on it, Mr. Downing — he spent 50 hours with the special prosecutor. You would say, your words, not mine, spilling his guts, and I gave you those words. They weren’t yours. But it would be what I’d be arguing,” Ellis said. “In any event, he didn’t get [credit for cooperation/acceptance of responsibility] because they didn’t believe he was truthful. But why do you think he gets under the circumstances? And you don’t need to argue about obstruction, because the obstruction is not an impediment to acceptance of responsibility in this case.”
Downing replied by saying, in different circumstances, this case never would have gone to trial. He blamed it on the way “the Office of Special Counsel […] handled” the case. Mueller works in the Special Counsel’s Office, not the very different Office of Special Counsel, for what it’s worth.
“I think if we would have been faced with this same case by the local U.S. Attorney’s Office, we may never have had a trial. So I’d like the Court to consider the fact that when we went into this case, the Court even observed that this case was overcharged, and at the end of the day, 10 of the 18 did hang,” Downing said. Keep in mind, the 10 counts that hung in Aug. 2018 were due to a lone holdout juror.
Finally, Downing said, “I’ve been doing this for a long time. I’ve never been in the situation where open fact finding in another case is affecting the Court’s decision on sentencing in this case.” Here he’s referring to an ongoing dispute over what U.S. District Judge Amy Berman Jackson determined that Manafort lied about in breach of his plea agreement. Mueller recently filed additional clarification of the record regarding Manafort’s lie about his associate Konstantin Kilimnik and the sharing of Trump campaign polling data.
Judge Jackson said, “The Court appreciates the clarification of the record and states that the information in the supplemental memorandum […] does not alter the Court’s determination 509 that ‘OSC has established by a preponderance of the evidence that the defendant intentionally made multiple false statements…concerning…his interactions and communications with Kilimnik.'” In short, something needed correcting that didn’t change the determination, but it seems Downing is asking why any of this is being brought up here in the context of the EDVA sentencing, as “there’s one issue that’s open to a motion to reconsider now.”
Ellis replied, “Yes, I take your point, and I’m also sensitive to the fact that this isn’t your first rodeo nor is it anybody’s here first rodeo, except Mr. Manafort’s.” This comment was another sign of things to come, as was this next nugget.
Judge voices skepticism of general deterrence through sentencing
Ellis revealed himself to be agnostic on whether people are actually deterred by sentences, and he explained why by way of a story.
I just had occasion to recognize that I’ve been here 32 years and I have seen a great deal. And the one thing I think everyone here would have to agree with is this is unusual. It’s unusual because of the attention this case gets. Look at the courtroom. It’s filled. I sentence people — and there’s an overflow courtroom. I sentence people every week. I have sentenced large numbers of people in the past 32 years for a lot of conduct, some of it far more egregious than this and some of it less, rarely have a courtroom even close to this filled, which is unfortunate. It’s unfortunate because a lot of the sentences I impose need to have publicity so that they have general deterrent effect.
I don’t know, as an empirical matter, whether there is any deterrent effect to sentences. I hope so. But that, I think, remains to be empirically tested. I know years ago I had to sentence young people who were mules, drug mules from Colombia, the country of my birth. They came up here with drugs and I sentenced them to a mandatory minimum of ten years in prison. And, of course, these were young kids essentially, teenagers and 20’s, who were told, here, take these drugs. They’ll — if they find them, they’ll just deport you. That’s true, but only after ten years in Uncle Sam’s custody. And I thought that failing to give people notice of that in Colombia, Madine [sic], and other places, was wrong, immoral. So I ordered the government to put signs up in these airports and I smugly told myself that that would make some difference. Not in the slightest. So I don’t know about general deterrence, but it is still a congressionally mandated consideration under 3553, and I hope it has some effect.
Then came the “hanging of pickpockets in England” comments that caught some attention. Ellis brought this up to say not even hanging deterred people from pickpocketing in 17th and 18th century England.
“And, of course, I also am fully aware of the fact that they hung pickpockets in 18th and 17th Century England. But every time they had a hanging, pickpockets showed up,” he said. “So that gives you a sense of the deterrent effect.”
Ellis won’t be second guessing Judge Jackson
Judge Ellis was miffed, again, by the idea that too many things have been under seal, playing right into Kevin Downing’s argument. Ellis wanted to know why the aforementioned motion to reconsider was under seal.
Downing shot back, “Yes. It seems like everything is under seal.”
“Why is it under seal? The public ought to know about these things,” Ellis said.
Mueller prosecutor Greg Andres (disclosure: he’s Law&Crime founder Dan Abrams‘ brother-in-law) interjected at this point to say, “Your Honor, it’s not all under seal. There is a public order which Judge Jackson issued and….” Here, Ellis said he wasn’t going to be second guessing his fellow district judge.
“Well, that’s her decision. I’m not second-guessing that. She should do whatever she thinks is right, and I’m sure she will. But I hope, at the end of the day, all this will be unsealed,” he said. “I am not — I do not sit to second-guess Judge Jackson, and I’m not going to. She will do whatever she thinks is right, and I will accept that. I don’t go behind it, and I don’t need to know all of that.”
Ellis advises prosecutor to never sell an insurance policy
At this point, Ellis and EDVA prosecutor Uzo Asonye got into a discussion about whether a hefty fine should be levied on top of restitution Manafort is already expected to pay. Asonye argued that, after all is said and done, Manafort will still have millions the can use to pay the fine. Ellis wasn’t convinced by what Asonye had to say.
“I think your — the argument you’ve made is that the predictions on the dispositions of the property and the restitution to the other victims is such that even after all that’s paid, plus the $6 million in tax liability, would leave him with two homes. Is that your view?” Ellis asked.
“Two homes and millions of dollars in securities, Your Honor,” Asonye responded. “[A] $4.2 million in securities, a life insurance policy of $1.496 million and another $2.5 million in investments in a…”
“He has to die to get that $1.496 [million],” Ellis interjected, morbidly.
“Your Honor, I believe there are ways to cash out and to sell your life insurance policies,” Asonye answered.
“There are, indeed, but — there are, indeed, but certainly not for $1.496 million,” Ellis said.
“But, Your Honor –” Asonye returned.
“Have you ever tried to sell an insurance policy that you have?” Ellis asked.
“I have not,” Asonye replied.
“Don’t do it. You will be dismayed,” Ellis warned.
Interesting characterization of the Special Counsel’s meetings with Manafort…
Ellis and Andres got into it again, this time because of the way Ellis characterized the way the plea breach went down.
“You say, one, he lied, and two, the information he provided, you didn’t like it. It wasn’t of substantial assistance. I understand that,” Ellis said.
“And three — and three or four, even Mr. Manafort hasn’t provided the Court with any information that he provided to the Special Counsel that was of any value,” Andres filled in the gaps. “So what Your Honor is evaluating is simply the fact that he met for 50 hours. And the reason that he met for 50 hours was because he lied.”
“Because he lied, it took longer to try to show Mr. Manafort what the evidence was to allow him to provide truthful proffers,” Andres continued. “It certainly was the — was in the interest of the Special Counsel’s office to have Mr. Manafort provide helpful and meaningful cooperation and he didn’t.”
“So I’m to assume that he spent 50 hours telling you things you didn’t want to hear,” Ellis said.
“It wasn’t 50 hours of information that we didn’t know and it certainly wasn’t 50 hours of information that was useful,” Andres explained.
The prosecution emphasized that these crimes were not “made up” and they were recent
“Mr. Manafort’s crimes did not occur decades ago, not even a decade ago. He made criminal choices as recently as 2016 and 2017. No one made up those crimes. Nobody conjured them up,” Andres said. “Mr. Manafort, himself, made criminal choices and those choices have consequences. The crimes were borne out in the dozens and hundreds of documents admitted as evidence in this trial — at the trial, in bank account records, corporate documents, loan files, tax returns and the more than dozen witnesses.”
Andres said that Manafort is “not remorseful,” a fact the judge would later take note of.
“And today, we know that Mr. Manafort remains — fails to accept responsibility and is not remorseful. We hear that he’s failed to file a financial statement. As of today, we really have no idea of what his financials are, financial assets are, particularly in a case where he was convicted of hiding his assets and in a case where he’s doctored financial statements and submitted them to the bank,” Andres said. “The Government submits that that suggests a lack of remorse for his crimes.”
A mistake by Team Mueller?
Andres then turned his attention to the matter of deterrence. Ellis had already made it clear that he doesn’t necessarily see the deterrence in the real world. Nonetheless, Andres went back to this well.
“Your Honor, I’d also like to address the issue of deterrence here as required by 3553, both general deterrence and specific deterrence are important,” he said.
Ellis would say that the case against Manafort was basically the same as other bank and tax fraud cases he’s seen.
“Most of the ones I’ve presided over and studied are pretty much the same. They’re hiding money from the U.S. government so they don’t have to pay taxes on it,” Ellis said.
This was the proverbial baseball on a tee for Manafort attorney Thomas Zehnle.
“So I don’t think it’s fair for the Government to sit there and try to distinguish away cases that involve taxes and FBAR combined by saying, oh, gee, this is so different from those. It’s not, Your Honor, as the Court correctly noted,” he said.
Ellis then repeated that we know the real reason why this case has garnered so much attention.
“Well, we know why. Come on. It’s not relevant to my determination of an appropriate sentence. But we all know why there’s this much interest,” he said.
Manafort speaks and the “old man with bad ears” couldn’t hear him
THE COURT: All right. Please keep your voice up, sir.
THE DEFENDANT: The last two years, Your Honor, have been the most difficult years for my family and I that we’ve experienced.
THE COURT: I’m sorry. I’m an old man with bad ears, so you’re going to have to speak up a little louder than that.
Do you have a microphone there for Mr. Manafort?
That’s how Manafort’s interaction with the judge began.
Manafort then claimed that the efficacy of prayer has carried him through the worst months of his life.
“What has been uplifting to me, I should say, however, is the outpouring of support and affection that I have received not just from my family and friends but from total strangers. The support and the incredible power of their prayers is what has sustained me through these terrible times,” he said. He then praised Ellis for making sure the trial was fair and said he restored his faith in the “judicial system.”
“In the midst of this pain, I must tell you, Your Honor, that I appreciate the fairness of the trial that you have conducted. I know this has not been easy given the media frenzy atmosphere surrounding the trial. I know how it affects me, and I know the kind of pressures it put on the Court, and I truly do appreciate the fact that at least from my perspective, I feel that you’ve bent over backwards to make this to be a fair proceeding,” Manafort said. “Your wisdom and management of this courtroom has given me hope for the judicial system, and I am ready for your decision, and I ask your compassion.”
Manafort did not express remorse, as reported. Here’s the extent to which he accepted responsibility:
“I could tell you that I feel the punishment from these proceedings already and know that it was my conduct that brought me here.”
“I recognize and acknowledge that it is an ordeal that I am responsible for.”
Why this sentence of 47 months? Ask Antonin Scalia
Ellis said that testimonials to Manafort being a good father, husband, and friend were taken into account. He said Manafort’s lived an “otherwise blameless life,” having no prior criminal record.
“I think that sentencing range is excessive. I don’t think that’s warranted in this case. It raises questions,” Ellis said. The judge said that you can thank deceased Supreme Court Justice Antonin Scalia for sentencing guidelines shifting from mandatory to advisory.
“And we should all remember who brought that about. It was Justice Scalia in his opinions, which was a surprise to some, I suppose. Anyway, they’re now not mandatory; they’re advisory,” Ellis said.
“It’s a fundamental principle of justice that like cases should be treated,” Ellis continued. “I listened carefully to [Manafort’s] allocution, and I don’t have any doubt that what you said was genuine, but I was surprised that I did not hear you express regret for engaging in wrongful conduct.”
“In other words, you didn’t say, I really, really regret not doing what I knew the law required,” he added.
Ellis then acknowledged this was irrelevant to the sentence, but recommended Manafort show remorse in D.C.
“Now, that doesn’t make any difference to the judgment that I’m about to make, Mr. Manafort, that you didn’t say that, but I hope you will reflect on that and that your regret will be that you didn’t comply with the law,” he said. “And I repeat, [the sentence is] not a mathematical calculation. It is a judgment.”
Perhaps, most interestingly, it seems Ellis anticipated that Judge Jackson is likely to decide Manafort should serve sentences consecutively, not concurrently. That’s why he decided Manafort should get credit for time served.
“And the reason for that is that if he had been incarcerated by both Judge Jackson and by this Court, he would still receive credit for both, and I want him to receive credit for the nine months,” he said. It appears Mueller, for what it’s worth, has already nudged Judge Jackson to throw the book at Manafort.
Ellis casually mentions that he’s received “nutty communications” he’s never read
In his last act, Ellis left us with the following quote to be remembered:
And I will point out that I received a lot of nutty communications which I have neither read nor kept. That won’t surprise anybody in the courtroom. Maybe they’re the authors. I don’t know. I don’t care.
[Image via Alex Wong/Getty Images]
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