The first salvo fired by Paul Manafort’s legal team at Special Counsel Robert Mueller’s indictment against him and co-defendant Richard Gates is a frivolous civil lawsuit. Manafort’s underlying complaint is a serious one, aimed at Mueller’s jurisdiction to prosecute crimes beyond the scope of the so-called Russia investigation. But his counsel undermine their colorable claim, and no doubt damage their standing with the judge in Manafort’s criminal case, by pulling this stunt.
The Frivolous Civil Lawsuit
When a person accused of a crime seeks to challenge the jurisdictional basis of the charge, the remedy is to file a motion to dismiss the indictment before the presiding judge in the criminal case — here, Judge Amy Berman Jackson of the federal district court in Washington, D.C. Instead, Manafort has sued the prosecutors — Mueller, Deputy Attorney General Rod Rosenstein, and the Department of Justice.
Manafort’s counsel purport to be proceeding under the Administrative Procedure Act (APA). They theorize that if a supervising Justice Department attorney gives an order to a prosecutor in a criminal case, this constitutes a “final agency action” if it touches the array of federal regulations applicable to the Justice Department. This, they claim, makes it grist for an APA lawsuit, in which a judge in a separate civil case would rule on whether this “final agency action” is lawful. Manafort must proceed this way, his lawyers absurdly argue, because “there is no [other] adequate remedy in a court for the harm caused.”
Manifestly, the adequate alternative remedy — the proper remedy — is to file a motion to dismiss the indictment before Judge Jackson. In Manafort’s construct, virtually every criminal case would be accompanied by parallel civil lawsuits. Any time the assigned prosecutors were directed by their superiors to take some allegedly objectionable action, the defendant could not only protest to the judge in the criminal case but also sue the prosecution in a separate civil case before a different judge.
Manafort’s civil lawsuit is specious because it is not the proper way to raise his objections. It is also foolish because it will likely irritate Judge Jackson — she is apt to see this charade as an effort by Manafort’s lawyers to shop around for another judge because she is somehow incapable of fairly applying the law. From this old trial lawyer’s perspective, that is not the way you want to start out with the jurist who will make all the important decisions in your client’s case.
In any event, expect the civil suit to be dismissed forthwith.
The Special Counsel’s Jurisdiction
Let’s put the nonsense aside and turn to the merits (i.e., we assume that Manafort will raise his claim in a proper motion to dismiss the indictment). While ultimately futile, Manafort’s contentions about the lawlessness of Mueller’s indictment are worthy of serious consideration.
He claims that the special counsel lacks jurisdiction to proceed on the charges that have been filed. Because I have previously argued that the jurisdiction granted to Mueller violates the special-counsel regulations, some readers have inquired whether Manafort is making the same argument. He is not, but it’s worth explaining the difference.
I’ve pointed out that the regulations controlling special-counsel appointments explicitly limit them to situations in which (a) the acting attorney general “determines that criminal investigation of a person or matter is warranted” but (b) the Justice Department has a conflict of interest that renders it unable to proceed in the normal course. (28 C.F.R. Sec. 600.1.) For our purposes, the salient condition is the first one: In our system, articulable suspicion of a concrete crime must precede the appointment of a prosecutor; we are not supposed to assign a prosecutor unless there is, in the first place, a real cause to believe a crime has been committed.
This is underscored by the fact that the suspected crime is supposed to circumscribe the special counsel’s jurisdiction — so that the investigation does not become a fishing expedition and otherwise resemble an unconstitutional “general warrant.” In circumstances where we have a crime but DOJ is conflicted, the regs call for the acting attorney general to provide “a specific factual statement of the matter to be investigated” (Sec. 600.4.) Obviously, “the matter to be investigated” is the just-mentioned criminal investigation as to which DOJ is conflicted. It is this specific factual description of the criminal investigation that establishes the special counsel’s “original jurisdiction.”
Here, to the contrary, in appointing Mueller, Deputy Attorney General Rosenstein failed to provide a factual statement describing grounds for a criminal investigation. (Rosenstein is the acting attorney general in this case because Attorney General Jeff Sessions recused himself.)
Rosenstein purported to assign Mueller, as special counsel, to conduct “the investigation confirmed by then–FBI Director James B. Comey” in House testimony on March 20, 2017. As I’ve repeatedly pointed out (see, e.g., here), what Comey described in that testimony was a counterintelligence investigation, not a criminal investigation:
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed. [Emphasis added.]
I’ve highlighted the last sentence to make an important point. This statement by Comey was politically explosive because it naturally led the media and public to assume that Trump and his campaign might be criminal suspects. But legally, Comey’s last sentence is superfluous. All it means is that, as in any kind of non-criminal investigation, if the FBI stumbles on evidence of a crime, it is not required to ignore that evidence. Comey’s statement does not have the talismanic effect of turning a counterintelligence investigation into a criminal investigation. To make it a criminal investigation, the Justice Department would have to articulate suspicion of a specific crime. Comey did not do that in his testimony, and Rosenstein did not do it in his appointment of Mueller.
In our system, articulable suspicion of a concrete crime must precede the appointment of a prosecutor; we are not supposed to assign a prosecutor unless there is, in the first place, a real cause to believe a crime has been committed.
There is no need for a prosecutor, much less a special counsel operating quasi-independently of the Justice Department, to conduct a counterintelligence investigation. Unlike investigating and prosecuting crime, collecting and analyzing intelligence is not lawyer work. The FBI’s counterintelligence investigations are supported by the Justice Department’s National Security Division (who help if, for example, the FBI needs a surveillance warrant from the FISA court). But otherwise, a prosecutor is not assigned — in marked contrast to criminal investigations, which cannot move forward without a prosecutor.
Consequently, the FBI could easily have proceeded with its Russia counterintelligence investigation without the appointment of any prosecutor at all. If, as adumbrated above, evidence of criminal violations eventually happened to turn up while the agents were doing their counterintelligence work, at that point the Justice Department could have considered appointing a special counsel. But unless and until evidence of a crime emerged, there would be no grounds for a criminal investigation, and therefore no basis under the regs to appoint a special counsel.
Again, a prosecutor is not supposed to be unleashed to hunt for an unknown crime. A prosecutor is appointed only after there is an already known or strongly suspected crime that must be investigated and prosecuted.
Under my theory, Mueller’s appointment is improper. Theoretically, then, any charge he filed could be attacked as invalid. My point is not that the charges against Manafort exceed the special counsel’s proper authority; I contend that, by failing to comply with the regulations, the Justice Department did not give the special counsel proper authority in the first place.
Manafort’s Narrower, and Futile, Jurisdictional Claim
Manafort, to the contrary, argues that Mueller exceeded his authority. That is, Manafort does not contest (a) the propriety of Rosentein’s appointment of a special counsel or (b) the sufficiency of Rosenstein’s factual statement defining the special counsel’s original jurisdiction. Manafort’s narrower contention is that the charges Mueller has filed are outside the scope of the jurisdiction Rosenstein gave him.
Manafort is right about this, but because the Justice Department can easily fix that problem, the objection is academic.
As already noted, the main part of what the regs call Mueller’s “original jurisdiction” is the Russia investigation, which involves the Kremlin’s meddling in the 2016 election and any Trump-campaign coordination therein. But as the regs elaborate, original jurisdiction also includes the power to investigate any conduct committed during the course of the investigation that is aimed at obstructing the investigation — the reg provides examples: “perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”
Thus, the charges against Manafort do not fit the criteria for a special counsel’s original jurisdiction: They involve neither the Russia investigation nor an effort to obstruct the Russia investigation. Instead, Manafort has been indicted for an unrelated scheme that goes back to the early 2000s and involves his political consulting work for a Ukrainian political party (hereafter, “the Ukrainian scheme”). Though this Ukrainian party was backed by the Kremlin, the indicted conduct (money laundering, failure to register as a foreign agent, failure to make required disclosures about foreign bank accounts, and so on) has nothing to do with Russia’s interference in the election or Manafort’s brief stint as Trump-campaign chairman.
Nevertheless, the fact that the Ukrainian scheme is outside the scope of Mueller’s original jurisdiction is not the end of the matter. The regs also prescribe “additional jurisdiction” (Sec. 600.4.) This can be invoked if, in his judgment, the special counsel needs to investigate “new matters that come to light in the course of” his probe, in order to adequately investigate the matter that has been assigned to him.
Here, that would mean that Mueller believes he needs to pursue the Ukrainian scheme to ensure that he gets all the information he needs to resolve the Russia investigation. Mueller would plausibly argue that he needs to investigate Manafort’s ties to the Kremlin-backed Ukrainian party in order to both (a) understand what Kremlin operatives Manafort might have colluded with in connection with the 2016 election and (b) secure a conviction of Manafort that would pressure him to cooperate in the Russia investigation.
But there is a catch: Under the regs, to investigate “new matters” outside his original jurisdiction, the special counsel must persuade the acting attorney general formally to grant “additional jurisdiction” — i.e., to expand the special counsel’s jurisdiction to include these new matters. Otherwise, the acting attorney general may decide to assign the “new matters” to another Justice Department prosecutor.
Mueller has never made such a request — at least not publicly, and not as far as Manafort knows. Rosenstein, moreover, has never amended his original order appointing Mueller. As a result, the charges that Mueller’s grand jury has filed are beyond his authority to investigate and prosecute — they are outside the scope of the special counsel’s original jurisdiction, and Mueller has not been given additional jurisdiction.
Sounds bad . . . but it’s more likely a big “so what?”
Additional Jurisdiction and Old ‘New Matters’
The fact that Mueller has failed to ask for additional jurisdiction does not prevent him from doing so now. Were he to do so (and why wouldn’t he, if there is any possibility that the charges could be dismissed?), we already know Rosenstein is inclined to grant the expansion.
Deputy Attorney General Rod Rosenstein did not follow the regs. Instead, he tried to pre-license Mueller to expand the probe whenever and however he wished.
In the order appointing Mueller, besides the description of the Russia probe, Rosenstein purports to authorize Mueller to investigate “any matters that arose or may arise directly from the investigation.” Now, this sweeping grant is improper. It is, in fact, indicative of the overall shoddiness of Rosenstein’s order — written in haste to appease Democrats who were then saying unkind things about Rosenstein’s role in President Trump’s firing of Comey, as well as demanding a special counsel on whom no limitations whatsoever would be placed.
The regulations, however, do not contain an exemption that relieves the Justice Department from doing its duty whenever Democrats are upset. They require that the special counsel articulate precisely what additional jurisdiction he seeks, and that the acting attorney general then make a careful determination whether to grant the request or assign the additional matter to a different prosecutor.
The possibility of assignment to a different prosecutor is not a throwaway line. Remember, we are supposed to have a special counsel only if the Justice Department has a conflict. If the special counsel is seeking additional jurisdiction in order to investigate a crime as to which the Justice Department has no conflict, the acting attorney general may well decide that it is better to refer that crime to a Justice Department prosecutor who can investigate in the normal course, rather than expand the jurisdiction of a special counsel who operates largely outside DOJ supervision.
Here, again, Rosenstein did not follow the regs. Instead, he tried to pre-license Mueller to expand the probe whenever and however he wished. But putting aside that this was legally wrong, we know as a practical matter that if Mueller does make a proper formal request, Rosenstein will rubber-stamp it.
Clearly realizing this, Manafort argues that Mueller is not really trying to prosecute “new matters” for which a grant of additional jurisdiction would be appropriate. Rather, he claims that the crimes Mueller has charged are old matters — i.e., previously well-known matters that the Justice Department decided not to prosecute long before Mueller was appointed. Indeed, Manafort claims that Mueller’s prosecution is based on information Manafort voluntarily provided to the Justice Department and FBI four years ago, after which they closed their investigation. Far from being new, Manafort points out, the conduct is so stale that much of it is time-barred under the statute of limitations.
While these claims are appealing, they are unavailing. Even if Manafort’s recital of the facts is accurate (and we haven’t heard the government’s side yet), the closing of an investigation does not come with a guarantee that the investigation will never be reopened. Nothing prevented the Justice Department itself from reviving the Ukrainian case against Manafort. Therefore, if Manafort’s tie to the Trump campaign convinced Rosenstein that the Trump Justice Department would have a conflict of interest in any criminal investigation involving Manafort, Rosenstein could properly have assigned the reopened Ukrainian case to a special counsel in the first instance — i.e., as part of Mueller’s original jurisdiction. Thus, there is no reason why Rosenstein could not expand Mueller’s jurisdiction to include the Ukrainian case — especially if, as one would expect, Mueller’s investigation has turned up new evidence to support the charges.
In conclusion, Manafort is not challenging the special counsel’s appointment — at least, not at this point. His claim is not that Mueller should not be permitted to file any charges but that the charges Mueller has filed fall outside the scope of the jurisdiction granted to him by Rosenstein. Even if we assume there is merit in this claim, the Justice Department could easily fix the problem by formally expanding Mueller’s jurisdiction. If Rosenstein did that, there would be no basis to dismiss the indictment. And, again, the proper forum for challenging the special counsel’s jurisdiction and any infirmity in the charges is the criminal proceeding commenced by the indictment. Manafort’s civil lawsuit should be swiftly dismissed.