Manafort’s complaint [updated]

Yesterday Paul Manafort filed a lawsuit against the Department of Justice, Deputy Attorney General Rod Rosenstein, and Special Counsel Robert Mueller. In the lawsuit, among other things, Manafort seeks to have the actions taken against him by Mueller set aside as beyond his authority. Politico has posted a copy of Manafort’s Complaint here.

I won’t comment on the merits of the lawsuit before the defendants respond and its substance is in any event beyond any expertise I have. Here I want briefly to note for readers some background on the issues raised by Manafort’s lawsuit and provide links to the materials necessary to understand them.

The legal authority of the Attorney General or his surrogate to appoint Special Counsel is governed by regulations promulgated by the Department of Justice. The relations are codified in 28 C.F.R. Part 600 (“General Powers of Special Counsel”). For my purposes here sections 600.1 (“Grounds for appointing a Special Counsel”) and 600.4 (“Jurisdiction”) are the operative regulations.

Deputy Attorney General Rod Rosenstein appointed Mueller as Special Counsel by order dated May 17, 2017. The New York Times has posted the order here.

Andrew McCarthy discussed the legal issues raised by Mueller’s appointment in the NRO columns “Mend, don’t end. Mueller’s investigation” (June 14, 2017) and “Rosenstein fails to defend his failure to limit Mueller’s investigation” (August 7, 2017). The two paragraphs below draw from the first of these two columns. Both are must reading.

McCarthy has stressed the fundamental point that a Special Counsel may only be appointed when the Attorney General or his surrogate “determines that criminal investigation of a person or matter is warranted.” However, the investigation of Russia’s interference in the 2016 presidential campaign has not been denominated a criminal investigation. It is a counterintelligence investigation.

Section 600.1 requires the identification of a criminal investigation of a person or matter that the Special Counsel is appointed to conduct. Rosenstein’s appointment of Mueller, however, cited the investigation that was described by then-FBI director Comey in his March 20 congressional testimony. McCarthy emphasizes that the Russia investigation described by Comey is a counterintelligence investigation; it is not a criminal investigation of a person or matter. (McCarthy has therefore proposed that “Rosenstein should issue a directive superseding his original appointment of Mueller in order to more tightly and appropriately define Mueller’s jurisdiction. The new directive should describe, in writing, the potential crimes that have been uncovered in the Russia investigation.”)

Whereas McCarthy has focused on Rosenstein’s failure to establish the predicate for the appointment of Special Counsel under section 600.1, Manafort’s complaint does not take up this point. It implicitly concedes that Mueller’s investigation has a legal predicate under section 600.1. Rather, Manafort challenges the unbounded scope of Mueller’s investigation beyond the legal predicate and therefore in excess of Mueller’s jurisdiction under section 600.4. In paragraph 8 Manafort alleges (emphasis in original):

Consistent with DOJ’s special counsel regulations, the Appointment Order gives Mr. Mueller authority to investigate a specific matter: “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” But the Appointment Order then purports to grant Mr. Mueller the additional authority to pursue “any matters that arose or may arise directly from” that investigation. As explained below, that exceeds the scope of Mr. Rosenstein’s authority to appoint special counsel as well as specific restrictions on the scope of such appointments. Indeed, the Appointment Order in effect purports to grant Mr. Mueller carte blanche to investigate and pursue criminal charges in connection with anything he stumbles across while investigating, no matter how remote from the specific matter identified as the subject of the Appointment Order [emphasis in original].

See also Complaint paragraphs 22-24.

i urge readers interested in the issues to read the materials linked above. As I say, I make no claim to expertise and am not even sure that I am reading Manafort’s Complaint correctly. Until Andrew McCarthy himself weighs in, I would like to leave this here for now.

UPDATE: The post above is obviously focused on the substance of the argument rather than its form as a lawsuit. My friend Mr. McCarthy finds the lawsuit frivolous. The issue should be raised by a motion to dismiss the indictment rather than by this 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.”

He also restates his contention regarding the impropriety of the investigation: “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.” o Here I think the difference is, as I suggests above, between section 600.1 and section 600.4.

He states in his final paragraph: “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.”

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