Manafort Sues Mueller

Ken AshfordCourts/Law, L'Affaire Russe, Trump & AdministrationLeave a Comment

This day continues to be bizarre.

Manafort is suing the Department of Justice, and names Rosenstein and Mueller as defendants, claiming that Mueller acted outside his authority by indicting him. This is an extremely unusual move. If an indictment can be challenged legally, typically the defendant files a motion to dismiss the indictment as part of the criminal case. It’s hard to see why Manafort chose to file this civil lawsuit instead of filing a motion in the criminal case. My initial reaction is that he wants to gain additional media exposure without putting this in front of the judge who would ultimately sentence him if convicted. This suit has almost no chance of success. Even if it succeeded, another federal prosecutor could indict Manafort for the same crimes, so it’s a pointless suit. He’s counting on the public (or conservative allies) to take this publicity stunt seriously.

The crux of Manafort’s argument against Mueller is that the Justice Department regulations governing appointment of a special counsel require the attorney general (or, in this case, Acting Attorney General Rod Rosenstein) to provide the special counsel “with a specific factual statement of the matter to be investigated.” Manafort claims that the specific factual statement in Rosenstein’s order is not broad enough to capture Manafort’s business dealings in Ukraine, and that a broadly worded provision of that order exceeds Rosenstein’s authority.

A glaring problem with this argument is that, even if Manafort is right, it is far from clear that he is allowed to bring this challenge. The regulations Manafort relies on explicitly state that they “are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.” So Manafort is claiming a right that the regulations explicitly deny him.

Even if a court ignores this limitation, moreover, Manafort’s argument relies on a flimsy factual claim. Rosenstein’s order appointing Mueller states that Mueller may investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” But Manafort was indicted on charges arising out of his dealings with the Ukrainian government, not the Russians. Such an indictment, Manafort’s lawyers claim, exceeds Mueller’s authority.

It’s a dubious argument because Manafort wasn’t just working for Ukrainian politicians and a Ukrainian political party. He was working for Ukraine’s pro-Russia party. That alone may be enough to establish a “link” between Manafort and the Russian government.

But let’s assume for the sake of argument that it does not, and that Mueller actually has exceeded his authority. What then?

Here’s what the Justice Department’s regulations have to say about special counsels who wish to investigate matters outside of their originally granted authority:

If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.

So even if Mueller’s investigation into Manafort did exceed his original authority, Mueller’s only obligation was to “consult” with Rosenstein about his decision to expand the investigation. At this point, Rosenstein would either expand Mueller’s authority or assign the new matters to another prosecutor.

So even if Manafort’s lawsuit prevails, the most that the former Trump campaign official can reasonably hope for is that a court may order Mueller to have a conversation with Rosenstein — a conversation, by the way, that may have already happened.

The bottom line, in other words, is that Manafort’s tactic is unlikely to succeed. He’s claiming a right he doesn’t have, in a courtroom he shouldn’t be in, based on facts that probably don’t exist — and, even if Manafort’s lawyers are right about everything, Mueller and Rosenstein can cure the alleged problems Manafort raises with a phone call or a few emails.