In the last few weeks, we have seen some pushback from two federal judges against purported overreaching by special counsel Robert Mueller.

In one case, involving the prosecution of ex-Trump campaign chairman Paul Manafort for alleged illegal acts he committed in the course of some of his business ventures, the presiding judge expressed dismay that Manafort became a target of Mr. Mueller, who was ostensibly supposed to be investigating collusion between Russia and the Trump campaign in the 2016 presidential elections.


The judge said it seemed to him that the special counsel was claiming “unfettered power” in going after Manafort whose business dealings at issue took place before the 2016 campaign! The judge told Mueller’s lawyers, “You don’t really care about Mr. Manafort. You really care about what information Mr. Manafort can give you to lead you to Mr. Trump and an impeachment, or whatever.”

While prosecutors typically charge one individual believed to be involved in a crime in a minor way to pressure him or her to “turn” on someone more heavily involved, the practice is ordinarily limited to participants in the same activity. What seemed to exercise the judge so much was that Manafort was not so-called “low hanging fruit,” but someone who may have unrelated legal exposure that Mueller seeks to exploit in the unrelated Russian investigation. If Manafort can be a target, anyone in theory can.

As for the second case, Mr. Mueller’s office indicted a number of Russian individuals and companies for being complicit in Russia’s alleged involvement in the 2016 presidential campaign. Legal experts were quick to opine that since there was no way that the Russians could be brought before a U.S. court, the Mueller team was simply trying to suggest that despite the lack of any real, hard evidence having been uncovered after a year and a half, there really was a “Russian” dimension to the investigation. The prosecutors were thinking, they said, that they would never have to prove anything of the sort because the case would never be brought to trial.

Turns out that one of the indicted companies sent a lawyer into court to plead not guilty and to ask that key evidence underlying the indictment be turned over to it pursuant to the federal rules of procedure. Taken aback, Mueller’s team asked that all proceedings be suspended because of some procedural problems and said they were not prepared to proceed.

No dice, said the judge, and ordered them to move forward. Plainly the special prosecutor is no longer on a roll.