Special counsel Robert Mueller seemingly enjoyed free rein over the last year in his investigation into President Donald Trump’s campaign connections to the Kremlin, arresting suspects, winning plea deals and handing down indictments at will.

Until last week.


Much to the merriment of the president and his lawyers, Mueller’s prosecutors have met their first real resistance in the form of skeptical judges. While the courtroom setbacks have not derailed Mueller’s criminal cases, they have fueled questions about their strength. And given the intense scrutiny of Mueller’s work, even small hitches are welcome news for a White House looking for evidence that the Russia probe has gone too far.

“It makes our job a little bit easier,” Trump’s top personal lawyer, Rudy Giuliani, said in an interview Monday.

Two federal judges have now questioned Mueller’s authority to bring charges on matters unrelated to the presidential election, including alleged financial crimes by former Trump campaign chairman Paul Manafort. On Saturday, a third judge rebuffed Mueller’s request to delay proceedings involving three Russian companies and 13 Russian citizens he has indicted for meddling in the 2016 election.

“The 13 Angry Democrats in charge of the Russian Witch Hunt are starting to find out that there is a Court System in place that actually protects people from injustice,” Trump tweeted Monday — a reference to the number of Mueller’s 17 prosecutors who are registered Democrats.

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Mueller’s team is unlikely to feel a sense of crisis, former prosecutors said in interviews. That’s because it is still early in the process of trying Manafort, who is fighting the charges in two federal courts. (One of his trials is scheduled to begin on July 10, the other in September.) And they can take solace in the knowledge that skeptical comments from a judge don’t necessarily predict an eventual ruling.

“Prosecutors charge, defendants try to poke holes, and prosecutors respond, then judges decide. The only difference in this affair is that the defense has the world’s largest megaphone,” said Samuel Buell, a former federal prosecutor and Duke University law school professor. “People should get used it to — and, more importantly, not fall for these lame spin efforts that attempt to play off of the public’s unfamiliarity with the litigation process.”

“I don’t think he is going to change his strategy now,” added Barbara McQuade, a former U.S. attorney from eastern Michigan. “If he were to worry about every minor setback, he might end up pulling punches when he should be striking hard blows.”

But none of that is keeping the president’s team from getting excited.

During a Friday speech at a National Rifle Association gathering, Trump gleefully read aloud several quotes from U.S. District Court Judge T.S. Ellis III, who earlier in the day had questioned whether Mueller’s prosecutors, in bringing tax and bank fraud crimes brought against Manafort in Virginia, were pursuing alleged crimes unrelated to Mueller’s original mandate: investigating Russian election interference and possible collusion with the Trump campaign.

“Unrelated!” Trump shouted. “Nobody knows that.”

And in his latest departure from past protocol, under which presidents rarely singled out federal judges by name, Trump praised Ellis in his remarks as “really something very special.”

In his interview with POLITICO, Giuliani called Ellis’s questions fodder for any potential legal fight over Mueller’s desire for a sit-down interview with Trump. “It shows the concern that the president has raised that this is a witch hunt,” Giuliani said. “The judge’s observation was — and they had no good answer for him — that they’re just going after Manafort, they’re not even interested in Manafort, all they want to do is kind of trap the president. So that’s really important to us because we don’t want him trapped.”

“It’s good to have an independent member of the judiciary point that out,” Giuliani added.

The former New York mayor and 2008 presidential aspirant also said the criticism of Mueller’s actions could drive Republican turnout in November.

“If they continue to get hit for prosecutorial misconduct it will probably help” motivate GOP voters to the polls, Giuliani said. “His people are much more incensed than they were before we got involved.”

Trump-friendly media outlets have also hyped the recent judicial outtakes. The Daily Caller on Monday ran a story describing Ellis, an appointee of Ronald Reagan, as “the ultimate nightmare” for Mueller. On Saturday, the Drudge Report featured a POLITICO report about U.S. District Court Judge Dabney Friedrich’s weekend decision to deny Mueller’s request to delay an arraignment scheduled for Wednesday; the case involves one three Russian companies Mueller indicted in February for using Internet trolls, social media ads and other techniques to politically divide Americans in 2016.

Veteran law enforcement experts say Mueller’s team is unfazed by the preliminary court moves and any criticism that Trump and his lawyers are launching.

Mueller faces no deadline in his investigation, though he has an interest in moving quickly: Trump and his GOP allies have stepped up their attacks on the Russia probe and are trying to turn the 2018 midterms into a fight about impeachment.

Giuliani over the weekend said Trump is considering fighting a subpoena from Mueller aimed at forcing his testimony. That court fight could drag on for months as it winds its way to the Supreme Court, which a former senior Trump strategist said would be a welcome political development.

“You’ve got to bide time,” said the GOP strategist. “You’ve got to get to November.”

Mueller has some notable legal wins under his belt: Early in the Manfort case, he defeated attempts to block his subpoena power and limit who he can question as a potential witness. He has also secured guilty pleas from the former Trump aides and advisors Michael Flynn, Rick Gates and George Papadopolous.

But things soured at a court hearing in Washington last month, when U.S. District Court Judge Amy Berman Jackson suggested that a May 2017 order from Deputy Attorney General Rod Rosenstein establishing Mueller’s probe violated Justice Department regulations by granting him the broad authority to pursue matters that “may arise” from his inquiry into Russian election meddling.

“One of the problems you’ve identified with…the appointment order is that it’s impossible to give a new prosecutor a specific factual statement of any matters that ‘arose or may arise’ in this investigation,” Jackson told Manafort’s lawyers. “That’s a fair point with respect to the future.

On Friday, Ellis, the judge handling Mueller’s case against Manafort in Virginia, went even further bysuggesting that Manafort’s alleged bank fraud and money laundering are too dated to be relevant to Mueller’s core mission.

“They all long predate any contact or any affiliation of this defendant with the campaign. So, I don’t see what relation this indictment has with anything the special prosecutor is authorized to investigate,” Ellis said. “This indictment didn’t ‘arise’ from your investigation.”

At one point, a prickly Ellis even accused longtime Justice Department lawyer Michael Dreeben of trying to dodge the issue. “You’re running away from my question again,” the judge complained. Ellis even grilled Dreeben about Mueller’s budget.

In the Russian troll case, the St. Petersburg-based firm, Concord Management and Consulting, has hired American defense lawyers and is seeking painstakingly detailed information on the case against the company as well as two other firms and 13 individuals. Among those charged is Yevgeny Prigozhin, who is known as Russian President Vladimir Putin’s chef and is a wealth entrepreneur behind Concord.

When Rosenstein announced the indictment earlier this year, it was widely seen as a “name-and-shame” case, meaning that the individuals and companies charged were all but certain to never show up in court to defend themselves.

However, it now seems that Concord can appear, through its attorneys — risking little but legal fees while potentially using the court’s discovery process to gain access to a trove of sensitive information.

Legal experts say that Friedrich’s ruling could force Mueller’s team to decide whether it wants to wrestle with the risks of discovery just to make a largely symbolic point against a Russia-based company.

If not, Mueller could simply decide to drop Concord as a defendant in the case — at the cost of another public relations embarrassment.

While Trump’s team may be enjoying Mueller’s occasional legal stumble, veterans of past special counsel cases say that would be premature.

“Let them celebrate,” Sol Wisenberg, a former deputy prosecutor on Kenneth Starr’s investigation into President Bill Clinton, said of the president and his attorneys. “But there’s a big difference between a not guilty verdict and a judge making comments that are negative.”