I did not pay much attention to the trial of Mr. Manafort. When the jury came back for the government on eight of eighteen counts, I wasn’t particularly surprised.[i] After all, these were essentially tax and bank fraud cases (with one count of failure to register as a foreign agent). The government does not bring those document-heavy charges unless it thinks the basic case, while larded with weak counts, is a slam dunk.
From the reporting prior to the verdict, commentators hazed Judge Ellis for pushing the government hard to get the trial over and otherwise being a meanie to the prosecutors.[ii] But aside from this sniping, I yawned.
Then, the judge sentenced Manafort to “only” 47 months in prison for the 70-year-old defendant. The heavens rose up and hell vented noxious gas. Life plus cancer was the proper sentence, and don’t tell us otherwise, the Trump-haters yelled. I yawned once again.
The judge explained in detail why he sentenced Manafort below the Guidelines. It seems to me the judge was roughly on target. In any event, for an objective and quite good explanation of the judge’s thoughtful explanation and ruling, see here.[iii] Yawn.
But now, I am no longer yawning. Recently, Zoe Tillman published the dismissal of several complaints brought against Judge Ellis under the Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351-364, regarding his conduct during the Manafort matter. Zoe Tillman, Paul Manafort’s Judge Won’t Face Disciplinary Action For How He Treated Mueller’s Office, BuzzFeed News (April 1, 2019). Even though it is not yet public as of the date of this writing, she even published the opinion of the Chief Judge of the Fourth Circuit dismissing the complaint.[iv]
Now, I don’t know Judge Ellis from a hot rock. So, I did a little looking. There is something called the Almanac of the Federal Judiciary, CCH Incorporated (2019).[v] It costs the practicing bar a lot to subscribe to this service because the editors do a deep dive into what lawyers think of a particular federal judge. The publisher then summarizes and publishes the thoughts of the lawyers about that judge without revealing the names or other identifying information.
Here is what I learned. The judge is a senior judge who was born in 1940. He was appointed by President Reagan in 1987. The judge graduated Princeton with a Bachelor of Science in Engineering. He went into the Navy and served from 1961 through 1966. After that, he attended Harvard Law School, where he received his degree magna cum laude. He was awarded a Diploma in Law from Magdalen College, Oxford University.
Now, for the evaluations in a summary fashion.
“Ellis is a brilliant judge, lawyers said. ‘His legal ability is off the charts, he has great legal knowledge.’”
“’He’s absolutely no-nonsense and sometimes a bit abrupt.’” “’He will put the lawyers in his courtroom to the test.’”
“Ellis runs a tight courtroom. ‘He has complete control of the courtroom.’ ‘One should never come into his courtroom unprepared.’ ‘He runs his courtroom efficiently.’”
As for the thoughts of criminal defense lawyers, “’He’s a real legal stickler and will really hold the parties to the letter of the law.’” “’He’s very pro-government.’” At sentencing, “’He’s a little tougher on sentencing than some; he can downward vary but more often he follows the guidelines.’”
Now, let me walk you through the Judicial Conduct complaints and how Chief Judge Gregory resolved them. There were four complaints. Each complaining party “apparently read or heard media reports regarding a criminal matter tried before the district judge.” Memorandum and Order, In the Matter of Judicial Complaints Under 28 U.S.C. § 351, Nos.4-18-90063, -90111, -90112, & -90121, at p. 1 (Mar. 29, 2019). In other words, the complaining parties were not participants in the trial, but bystanders relying on second-hand media accounts.
There were three areas of attack.
Initially, and the one Chief Judge Gregory spent the most time discussing, was the claim that Ellis violated various Canons of the Code of Conduct for United States Judges, particularly Canon 2 (avoiding impropriety and the appearance of impropriety) and Canon 3 (admonishing that a judge should perform his or her duties “impartially and diligently”). Greatly summarized and condensed, all the complaining parties thought Ellis was too tough on the prosecutors and “was more interested in hampering the prosecution with unreasonable demands for a quick and speedy trial than he was with carry[ing] out a fair trial.”
The secondary line of attack was still darker. It relied upon Canon 5, which requires judges to refrain from political activity. The judge “tilt[ed] the scales of justice against the prosecution,” made “partisan rulings,” and “deliberately put his thumb on the scales of justice for partisan reasons. A less likely, but entirely possible explanation is that he was subject to other improper, corrupt or illegal influence.”
The final line of attack was that the judge must have been nuts. That is, the judge “has early onset dementia.”
As for the first two lines of attack, Chief Judge Gregory denied them after careful examination. He explained why:
Reviewing the relevant transcripts in the case, and considering the district judge’s remarks in their overall context, the record does not support the conclusion that the district judge engaged in misconduct. One might say that the judge may have been injudicious in his tone or choice of words, but one cannot say that his comments were so discourteous, uncivil, or “bullying” as to “transcend . . . the expected rough-and-tumble of litigation.” Implementation of the Judicial Conduct and Disability Act of 1980, Report to the Chief Justice of the Judicial Conduct and Disability Act Study Committee (Breyer, J., chair), Appendix E (Committee Standards for Assessing Compliance with the Act), at 147. The judge was sometimes strident with counsel, to be sure, and especially with the prosecution. But judges have wide latitude to manage cases in the way that seems best to them. Moreover, pressing the prosecution to move a case along certainly does not necessarily signal that the trial judge believes the prosecution is wrong or has acted improperly, or that the judge is illicitly attempting to impede the prosecution in the eyes of the jury. These kinds of case-management considerations are directly related to the merits of the judge’s handling of the litigation. A judge’s approach to them, therefore, is not subject to review through a complaint of judicial misconduct. 28 U.S.C. § 352(b)(1)(A)(ii).
To be sure, especially in a high-profile, politically-charged trial, a judge should take care – with the precepts of Canon 5 of the Code of Conduct for United States Judges in mind – to avoid careless remarks that could foreseeably be interpreted as partisan. In this case, the district judge did not cross the line into partisan political commentary.
Memorandum and Order, In the Matter of Judicial Complaints Under 28 U.S.C. § 351, at pp. 3-4.
As for the claim of a corrupt motive or “dementia,” Judge Gregory devoted one line while first noting that the complaining parties had failed to provide him with any evidence. He wrote, “The record does not support the existence of an improper influence upon the judge, mental disability, or ‘early onset dementia.’” Id. at p. 4.
So, why do I write about the travails of Judge Ellis? I have three reasons.
First, the reader should know that Judicial Conduct complaints, mostly by disgruntled litigants, are commonplace. I can’t estimate the number of times I have been subjected to complaints. Every experienced judge (read “old”) has been put through the gauntlet numerous times. While it is not fun, the complaint process serves an important public purpose, even for those who completely misapprehend the governing law, 28 U.S.C. §§ 351–364, and the rules promulgated thereunder. There are judges who cross the ethical line. For those few judges, it is important that there be a process for dealing with them. In short, I am glad that the process, although abused, is in place.
Second, Chief Judge Gregory’s thoughtful analysis makes an important point. A federal trial judge is involved in the “rough and tumble [of] litigation.” The judge is under enormous pressure to control the trial participants and look after the jury. It is unsurprising, indeed commonplace, for a judge like Judge Ellis or me to make a remark during trial that upon reflection we wished we hadn’t. As the now-deceased former Chief Judge of the Eighth Circuit, and a truly great trial lawyer before he became a judge, emphasized, law is a human process and that is particularly true of trials. See Donald P. Lay, Law: A Human Process (1996).
Finally, I am angry that the Judicial Conduct process has now been weaponized for political purposes. Reading Chief Judge Gregory’s opinion leaves little doubt that the complaining parties, who were not participants and who relied on the accounts of others, lashed out at Judge Ellis to achieve a political end. He didn’t hate Trump (enough) and should therefore be punished. Such activity bodes ill for the independence of the federal judiciary and our country. As for me, I’m very glad that Judge Ellis was not a shrinking violet. I fear that young federal judges will be cowed—I urge them to have the courage displayed by Judge Ellis.
Richard G. Kopf
Senior United States District Judge (NE)
[i] Manafort was found guilty of five tax fraud charges, one charge of hiding foreign bank accounts, and two counts of bank fraud. Jurors were unable to reach a verdict on 10 other charges. The government elected to dismiss them.
[ii] Nancy Gertner, The extraordinary bias of the judge in the Manafort trial, Washington Post (Aug. 16, 2018). By the way, I have enormous respect for Ms. Gertner, formerly a distinguished federal trial judge and now a professor at Harvard. Oddly, however, she ends her opinion piece with this sentence: “Seeking to expedite matters, Ellis impaneled the Manafort jury in a single day.” I am surprised that Gertner is surprised. I have never spent more than one day picking a jury, and that includes complex cases like the Beatrice Six wrongful-conviction case or a particularly nasty murder case. With rare exceptions, I give each side 20 minutes apiece to ask questions, and my courtroom deputy times them.
[iii] “Manafort’s defense team gave Ellis 17 cases to consider where defendants broke tax or foreign banking laws and got probation or home detention — in other words, no prison time. In some of these cases, the guidelines recommended the defendants go to prison for years — and yet judges all over the country decided that wasn’t necessary.
Ellis cited one case he handled that was similar to Manafort’s case involving secret foreign bank accounts. In that case, Ellis gave the man who avoided paying exponentially more in taxes than Manafort only seven months in prison.”
[iv] I can’t find the order on the Fourth Circuit’s website. It may have been leaked to the reporter. Every Circuit is required to make such orders publicly available when they are final. That omission suggests to me that the Chief Judge’s dismissal has been appealed to the Judicial Council of the Fourth Circuit. So, there may be more to come. By the way, the name of the judge and the names of the complainant or complainants are almost never disclosed pursuant to the rules. See here for all the rules. Nevertheless, from the background set forth in the dismissal order, one can tell that the order pertains to Judge Ellis.
[v] I deny that I have ever read my entry.