Judge T.S. Ellis III Did Real Damage With His Manafort Sentence

Judge Thomas Selby Ellis III, a Senior United States District Judge of the United States District Court for the Eastern District of Virginia, appointed by Ronald Reagan in 1987, handed down an extraordinarily lenient sentence on Paul Manafort Thursday evening. While the federal guidelines called for a sentence of 19.5 to 24.5 years in prison, Judge Ellis declared that this was far too harsh and gave Manafort a mere 47 months, including time already served. In words that will live in infamy, he said that Manafort had “lived an otherwise blameless life.”

It’s been clear since the pretrial stage that Judge Ellis was hostile to the prosecution and believed that the charges against Manafort were trumped-up in an effort to force the former presidential campaign chairman into cooperating in the Mueller probe. Once the trial began, things got even worse.

The federal judge in the trial of U.S. President Donald Trump’s former campaign chairman Paul Manafort expressed contrition on Thursday to jurors after berating prosecutors for allowing a witness to watch the proceedings, despite having given his earlier approval.

The rare apology by U.S. District Court Judge T.S. Ellis surprised observers in his Alexandria, Virginia courtroom, who have watched the judge repeatedly criticize the government’s handling of the case while giving leeway to Manafort’s lawyers.

“It appears I may well have been wrong,” Ellis said as the trial went into its eighth day. “But like any human, and this robe doesn’t make me anything other than human, I sometimes make mistakes.”

Ellis had chastised prosecutors for allowing IRS agent Michael Welch to be in court before he testified on Wednesday, saying he did not like witnesses present before taking the stand. When prosecutor Uzo Asonye challenged Ellis, the judge barked: “Don’t do that again. When I exclude witnesses, I mean everybody.”

Throughout the prosecution’s presentation of the case, Judge Ellis constantly pressured them to hurry up, leading to widespread criticism. Here is how Nancy Gertner, a retired U.S. District Court judge in Massachusetts, described Ellis’s behavior in the Washington Post:

It is not unusual for judges to intervene in court proceedings from time to time — to direct the lawyers to move the case along or to admonish them that evidence is repetitive…[but] the performance of U.S. District Court Judge T.S. Ellis III in the trial of Paul Manafort on bank fraud and tax evasion charges has been decidedly unusual.

During the trial, Ellis intervened regularly, and mainly against one side: the prosecution. The judge’s interruptions occurred in the presence of the jury and on matters of substance, not courtroom conduct. He disparaged the prosecution’s evidence, misstated its legal theories, even implied that prosecutors had disobeyed his orders when they had not…

…The judge continually interrupted the prosecution’s questioning of witnesses, prompting lead prosecutor Greg Andres to pointedly note: “Your honor stops us and asks us to move on.” Ellis pressed the prosecution to rush through testimony about important financial documents. He made critical comments about prosecution evidence and strategy — all in front of the jury.

That doesn’t even cover all of the egregious behavior Judge Ellis displayed. His interventions were were so lop-sided against the prosecution that there was real doubt about whether a conviction would be possible. One holdout juror refused to find Manafort guilty on 10 of the 18 charges against him, but the eight convictions were significant enough to lead the Probation Department to produce a pre-sentence guideline report recommending the 19.5 to 24.5 years of incarceration that Ellis disparaged and ignored.

In fairness, Manafort had fewer problems in Ellis’s courtroom than in the courtroom of his other trial across the river where he will be sentenced next week. Judge Amy Berman Jackson of United States District Court for the District of Columbia had to contend with Manafort entering into a cooperation agreement with the Office of Special Counsel only to violate the terms and have the agreement revoked.  In the Ellis case, the convictions were on five counts of tax fraud, two counts of bank fraud and one count of failure to disclose a foreign bank account. In the Jackson case, Manafort pleaded guilty to charges of conspiracy to defraud the United States, failing to register as a foreign agent, money laundering, witness tampering and making false statements. It wasn’t necessarily Judge Ellis’s job to punish Manafort for actions that were more in the DC jurisdiction. He wasn’t sentencing him for defrauding the country, acting as undeclared foreign agent, tampering with witnesses or reneging on a cooperation agreement. It wouldn’t be fair to jack up his sentence in two separate trials for the same set of crimes.

It probably wasn’t necessary to give Manafort twenty-plus years in prison for tax and bank fraud crimes even if the guidelines called for it. But it was quite another thing to give him fewer than four years, and then to rationalize it by saying that Manafort has lived a mostly blameless life. Anyone familiar with Manafort’s career and recent behavior could never honestly say that the man is beyond reproach. I mean, his own family doesn’t believe that.

By contrast, the Manafort daughters and their mother seemed much more unsettled about Paul Manafort’s work as a political consultant for Yanukovych’s Russia-backed Party of Regions, which is a subject of renewed interest among investigators probing possible links between Trump’s campaign and Russia.

In one March 2015 exchange that appears to be between the two sisters, Andrea Manafort seems to suggest that their father bore some responsibility for the deaths of protesters at the hands of police loyal to Yanukovych during a monthslong uprising that started in late 2013.

“Don’t fool yourself,” Andrea Manafort wrote. “That money we have is blood money.”

Even on a personal level, Manafort can be criticized more harshly than most people. In fact, his behavior towards his wife is so disgusting that most outlets won’t even report on it. If Judge Ellis had read Maya Gurantz’s article on this in the Los Angeles Review of Books, it’s hard to see how he could have characterized Manafort as a stand-up guy who deserves leniency.

In 2016 or early 2017, Paul Manafort’s 32-year-old daughter Andrea’s cell phone was hacked. A database containing hundreds of thousands of her purported text messages, many in conversation with her sister Jess, was released online in February 2017. Politico confirmed the veracity of enough of the texts to enter them into the public record.

Various excerpts have been used in every subsequent profile written on Manafort — Trump’s former campaign manager, a career Republican operative, and a lobbyist to foreign dictators — who currently sits in jail for bank fraud, tax fraud, obstruction of justice, and financial conspiracy with a foreign power. These articles quote Andrea and Jess contending with their father’s corruption (“He has no moral or legal compass”), what they believe was his active role in the murder of hundreds of Ukrainian protestors (“Do you know whose strategy that was to cause that / To send those people out and get them slaughtered”), his humiliatingly public affair as a sugar daddy to a much younger woman (“He got her A PRIVATE JET AT ONE POINT”), his role on Trump’s campaign (“He is refusing payment. Bc he doesn’t want to be viewed as Trump’s employee”), and their own tormented desire to free themselves from their family complicities (“Don’t fool yourself. That money we have is blood money.”).

Yet one cluster of texts never entered public discourse in the same way. For eight months after these texts were released online — an eon, in internet time — no one wrote about them. The sleaziest gossip outlets, which enthusiastically published other dirty details about Manafort (including his membership in BDSM sex clubs), wouldn’t touch it. Deep transparency conspiracy theorists didn’t Tweet about it. A March 2018 Atlantic profile on Manafort by Franklin Foer only very delicately alludes to the matter, commenting that, “after the exposure of his infidelity, his wife had begun to confess simmering marital issues to her daughters.”

That’s a rather dainty way to refer to over a decade of coercive and manipulative sexual behavior, in which Manafort allegedly forced his wife, vulnerable from having sustained brain damage after a near-death horseback riding accident years before, to engage in “gang bangs” with black men while he watched.

Manafort spoke to the court before his sentencing. He expressed some degree of remorse but refused to apologize for anything or to take responsibility for his actions. Judge Ellis expressed surprise at Manafort’s lack of contrition, and yet he still gave him approximately one-fifth of time recommended to him by the Probation Office.

I might be a little less outraged about this than others, but that’s mainly because I never thought twenty years was appropriate on these specific charges. I’m all for equal justice, so if others get the book thrown at them for tax and bank fraud, then Manafort should too. But I think twenty-year sentences should be reserved for crimes involving murder or serious bodily harm. I guess my problem is that I think we dole out unreasonably harsh sentences in this country, but it doesn’t bother me that Manafort’s sentence is less than some expected. This is especially true because I think he’ll get much less forgiveness in the DC case since it involves a conspiracy to defraud the country and multiple efforts to interfere with or obstruct the administration of justice. What matters is what Manafort gets in the end, and if he’s going to spend the next decade or two in prison, that’s appropriate for a man of his age who is guilty of these crimes.

Nonetheless, I believe Judge Ellis reduced the sentence by too much and for the wrong reasons. And I think he did real harm to the country because his decision badly undermined a lot of people’s faith in the justice system. It’s not just that Ellis created another example of a powerful and affluent and connected white man getting a slap on the wrist when the rest of us get no breaks whatsoever, but it also seemed to be motivated by partisan political considerations.  It also should not be overlooked that Ellis’ performance as a judge in this case was at least as indefensible as his sentence.

We will have to wait to see what Judge Amy Berman Jackson does next week. Based on how she has conducted herself so far, I don’t expect her to do anything that would give rise to legitimate criticism.

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Martin Longman

Martin Longman is the web editor for the Washington Monthly. See all his writing at ProgressPond.com