On Wednesday, Paul Manafort filed a lawsuit against the Department of Justice, Deputy Attorney General Rod Rosenstein, and special counsel Robert Mueller. In October, Mueller indicted Manafort on multiple counts of money laundering and failure to report foreign lobbying efforts; Manafort now argues that these indictments are illegal. His lawsuit is almost certain to fail. Indeed, it is so legally tenuous that it is best understood as a political statement meant to frame Manafort as a victim of unlawful prosecutorial overreach.
The lawsuit centers around a challenge to Mueller’s authority to investigate Manafort. Following Attorney General Jeff Sessions’ recusal from investigations regarding the 2016 campaign, Rosenstein appointed Mueller to investigate possible collusion between the Trump campaign and Russia. Rosenstein’s order also licensed Mueller to look into “any matters that arose or may arise directly from” that investigation. Manafort claims that this provision strays too far from the Department of Justice regulations that govern the special counsel, which require Rosenstein to provide “a specific factual statement” of “the matter to be investigated.”
In short, Manafort asserts that Rosenstein’s order did not sufficiently specify what Mueller could—and could not—investigate. He also alleges that, even if the order were lawful, Mueller has indicted Manafort for alleged crimes that were too far removed from the Russia investigation. (None of Manafort’s alleged misdeeds have directly tied back to Russian collusion so far as we know yet, though of course Mueller could be withholding some information.) Thus, Manafort argues, the indictments exceeded Mueller’s authority and must be tossed out.
These claims are quite weak. The regulations in question do not require the “specific factual statement” of the special counsel’s purview to be a narrow one. They simply require Rosenstein to explain what matters Mueller must investigate. Rosenstein did precisely that, ordering Mueller to investigate “any links and/or coordination” between the Russian government and Trump’s campaign, as well as “any matters that arose or may arise directly from” his investigation. Pursuant to this order, Mueller indicted Manafort—a key player in the Trump campaign who helped to elect a pro-Russian president in Ukraine—on financial crimes. Rosenstein’s order may be broad, and Mueller’s indictment of Manafort may lack an explicit link to Russian collusion right now. But both clearly comport with the relevant regulations.
Courts typically defer to reasonable agency regulations, so Manafort’s claim might appear to be utterly frivolous. There is, however, one reason why a court might read these regulations as narrowly as Manafort prefers: Because it fears they are unconstitutional. Stephen Vladeck, a professor at the University of Texas School of Law, told me that this constitutional avoidance question appeared to undergird the lawsuit’s main claims. Put simply, Manafort suggests that the special counsel regulations are unconstitutional as Mueller interprets them and must be narrowed to pass legal muster.
The problem for Manafort is that the special counsel regulations in question are obviously constitutional. In 1988’s Morrison v. Olson, the Supreme Court upheld a 1978 special counsel statute, ruling that it did not encroach upon separation of powers. Justice Antonin Scalia penned a ferocious dissent that many now believe to be correct, and Manafort may hope his lawsuit provides a vehicle for the court to overrule Morrison.
But even that might not save Manafort, because the 1978 law is vastly different from the regulations under which Mueller is operating. In fact, the current regulations were written in part to avoid the constitutional flaws of the 1978 law—namely, its infringement upon the president’s executive authority. These regulations are different from the old law in three ways. First, they allow the attorney general—or, in this case, the deputy attorney general, since Sessions recused himself—to control the scope of the investigation. If Mueller wants to spend more money or hire more people, he needs Rosenstein’s approval. Second, they allow Rosenstein to remove the special counsel. Third, they constitute not an act of Congress, but rather a mere regulation that the executive can change at will.
These features vest power over the special counsel in Rosenstein, an executive branch official, minimizing its intrusion into executive powers. By doing so, the current regulations would seem to remedy any potential constitutional flaw that Manafort believes to exist.
There is one final wrinkle to Manafort’s suit: Rather than presenting these claims in his ongoing criminal trial, he has filed them as a separate civil suit. Thus, while U.S. District Judge Amy Berman Jackson is handling his criminal case, U.S. District Judge Ketanji Brown Jackson will consider this lawsuit. (Both judges are Obama appointees.) Manafort probably thought Berman Jackson was not giving him a fair shake and wanted a different judge. But, as Vladeck told me, there’s “a question about whether it’s appropriate to collaterally attack an ongoing prosecution.”
“The doctrine of equitable restraint looks disfavorably upon such efforts,” he continued. “A court could easily say that this issue should be settled within the criminal case.”
Presuming Manafort’s suit is destined to fail, why file it at all? Most likely, the lawsuit constitutes a kind of publicity stunt designed to change the narrative around his prosecution. It allows Manafort to defend himself publicly—to reframe his indictment as an egregious abuse of Mueller’s power, and paint the investigation as a sweeping witch hunt. This spin may persuade his Republican sympathizers. But it will not hold much sway in the federal judiciary.
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