During the hearing on Manaforts request, Ellis posed sharp and skeptical questions at the attorneys for Muellers team. That skepticism came through in his opinion Tuesday, even as he decided that a dismissal of the charges against Manafort was not warranted.
[T]that conclusion should not be read as approval of the practice of appointing Special Counsel to prosecute cases of alleged high-level misconduct, Ellis said. Here, we have a prosecution of a campaign official, not a government official, for acts that occurred well before the Presidential election. To be sure, it is plausible, indeed ultimately persuasive here, to argue that the investigation and prosecution has some relevance to the election which occurred months if not years after the alleged misconduct.
He argued that a a bipartisan commission with subpoena power would be a better mechanism for addressing concerns about election interference.
The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance, Ellis said, adding the the U.S. system of checks and balances ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the law.
Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people, he said.