T.S. Ellis, III, senior U.S. district judge for the Eastern District of Virginia. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

The ongoing trial of Paul Manafort in federal court in Virginia for bank fraud and tax evasion is providing a stark example of a federal judge abusing his courtroom authority to the extent he may be jeopardizing the prosecution's ability to get a conviction, which the evidence suggests it should win. U.S. District Judge T.S. Ellis has been described in press coverage of the trial as presiding as an “activist judge”; in this case that is a euphemism for a bully in a black robe.

He has described himself as “Caesar in my own Rome,” and his bizarre behavior, thus far directed almost exclusively at the federal prosecutors, suggests he truly believes that self-description.

A comment the judge made during pretrial proceedings in the case probably foreshadowed what we are now witnessing. He expressed his belief then that the government was not really interested in Manafort; it was just using that indictment to pressure him to provide evidence against President Donald Trump. It has been downhill since then for the prosecution.

Ellis is unbridled in his willingness to disrupt the prosecution's questioning and make disparaging comments about the government evidence. He interrupted testimony about Manafort's lavish lifestyle to say “It is not a crime to be rich.” When the prosecutor was examining Rick Gates, Manafort's former partner and now the government's key witness, he again interrupted certain questioning of Gates, stating that it “didn't amount to a hill of beans.” When Gates testified that Manafort was well aware of the financial transgressions Gates was engaging in because they had been directed by Manafort and he “was watching everything closely,” Ellis interrupted: “Not that closely, because you were able to steal all that money from him.” After many more such prejudicial interruptions and denigrating characterizations, the frustrated prosecutor complained, but the judge dismissed his grievance with the comment that he would stand on the record. The prosecutor shot back that he would do the same, but the judge had the last word: “Then you would lose.”

But this judge does not limit his assaults to the government's evidence; he attacks and humiliates the prosecutors themselves. He has demanded that they “reign in your facial expressions,” not “furrow your brows” and “stop rolling your eyes as if to say 'why do we have to put up with this idiot judge.'” At one point the prosecutor had to question how he could be scolded for both not looking at the judge and rolling his eyes at the same time. In another particularly tense exchange, he scornfully accused the prosecutor of having tears in his eyes, and when the prosecutor objected and denied that was the case, the judge retorted: “Well, they are watery.”

His incessant scolding and criticism of the prosecution team assumes an even sharper point when contrasted with his obsequious behavior toward the jury. His clumsy charm offensive consisting of lame jokes and even lamer self-depreciating stories to the jury somehow makes his surliness and testiness directed at the prosecutors even more offensive.

Much, indeed most, of his abusive behavior takes place in the presence of the jury, and that is what is so disturbing. In any trial, the jury quickly realizes that the judge is the only player in the process without a stake in the outcome; the only neutral. Naturally, then, as they undertake their search for the truth, they afford great weight to the judge's comments. That is why good judges are scrupulous to avoid even the appearance of favoring one side or the other. After 31 years on the bench, it is inconceivable that Ellis does not know that, so one must conclude he simply does not care. That was evident in his telling remark during the trial: “Judges should be patient. They made a mistake when they confirmed me. I'm not very patient, so don't try my patience.” Mistake indeed.

This judge is not just devoid of sound judicial temperament; his unwillingness to control himself—apparently because Caesar has no such obligation—borders on the shameful, and it came to a climax at the end of the second week of trial. At the close of testimony that day, Ellis realized the government's expert witness had been sitting in the gallery during the testimony of Rick Gates, and he exploded at the prosecutors. He accused them of violating his clear order on sequestration of witnesses and warned them never to try that again.

The next day, the government filed a motion to correct the record, pointing out that prior discussions of that topic with the court had resulted in Ellis actually issuing exactly the opposite order. Because the jury had witnessed his tirade the previous day, he had to issue a curative instruction, but Cesar could not bring himself to apologize. The best he could do? “Put aside any criticism; I was probably wrong in that. This robe doesn't make me anything other than human.”

If only the Honorable T.S. Ellis really believed that.