It’s not a popular thing to defend Paul Manafort, the international influence peddler who ran Donald Trump’s presidential campaign for a short time in 2016. Just search for “Manafort” and, say, “sleazeball,” and see what comes up. But even bad guys have a case sometimes. And Manafort has a case in his lawsuit against Trump-Russia special counsel Robert Mueller and Deputy Attorney General Rod Rosenstein.
Mueller sent Manafort a strong message last July, when FBI agents working for Mueller, guns drawn, broke into Manafort’s house in the pre-dawn hours while Manafort and his wife slept inside. Mueller sent another message last October, when he indicted Manafort on eight counts (out of a total of 12) targeting allegedly criminal acts that ended in 2014 or 2015, before Manafort’s participation in the Trump campaign. None of the counts concerned alleged collusion during the 2016 campaign between Trump or his associates and Russia.
Now, Manafort has pushed back, or at least pushed back as much as a defendant facing a determined prosecutor can. Manafort has filed a lawsuit against Mueller, arguing that the Justice Department gave Mueller overly broad powers, and that, as a result, the investigation of Manafort, and the resulting indictment, has ventured “beyond the scope of [Mueller's] authority” granted to him by Rosenstein.
Some legal analysts have characterized Manafort’s lawsuit as frivolous. If Manafort were really serious, they say, he would have filed a motion with the court that will try the case against him. Or he would have made a different legal argument.
This is not to argue with that legal thinking. But everything in the Trump-Russia affair operates on two levels, the legal level, and the political level. Targets of the investigation, possibly including President Trump himself, have to make their case in a legal setting and also in a political setting. And in the political setting, Manafort has made a compelling case that he is being treated unfairly.
Rosenstein authorized Mueller to investigate three things. First was “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
Second was “any matters that arose or may arise directly from the investigation.”
And third was “any other matters within the scope of 28 C.F.R. 600.4(a).” That was a reference to Justice Department regulations allowing special counsels to “prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses …”
Manafort’s objection is to the second part of Mueller’s charge, “any matters that arose or may arise directly from the investigation.” Manafort’s argument is that assignment virtually invited Mueller to venture far afield from the Trump-Russia topic — and it violated those Justice Department regulations guiding special counsels.
The regulations specify that the special counsel “will be provided with a specific factual statement of the matter to be investigated.” That’s what Rosenstein did when assigning Mueller to probe alleged coordination between Trump and Russia. Manafort does not object. But the regulations go on to say:
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.
Manafort argues that some of the charges against him — for example, that he failed to file reports on his interest in foreign bank accounts in 2011, 2012, 2013, and 2014, as well as that he failed to register as a foreign agent between 2008 and 2014 — not only have nothing to do with the Trump-Russia affair but allegedly began and ended before Manafort’s association with the Trump campaign. They clearly do not fall under the main part of Mueller’s charge.
Manafort argues that if Mueller wanted to pursue those matters, Justice Department regulations require that he “consult with the attorney general” (or in this case, the deputy attorney general), to get permission to broaden the scope of his investigation. But Mueller did not have to do that because Rosenstein had already given him an overly broad appointment:
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 give Mr. Mueller the additional authority to pursue “any matters that arose or may arise directly from” that investigation….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.
That’s exactly what the Rosenstein-Mueller appointment order did. The order, the suit continues, “purports to grant authority to the Special Counsel to expand the scope of his investigation to new matters without the consent of — indeed, without even consulting — any politically accountable officer of the United States.”
The suit notes that Manafort met with Justice Department prosecutors on July 30, 2014, as part of an investigation into former Ukrainian president Viktor Yanukovych and corruption in Ukraine. In that interview, Manafort says, he “provided a detailed explanation of his activities in Ukraine … [and] his offshore banking activity in Cyprus.” The investigation was closed not long after, Manafort notes.
Now, the suit argues, “the Office of the Special Counsel charged Mr. Manafort with the very conduct he voluntarily disclosed to DOJ almost three years prior to the appointment of Mr. Mueller as Special Counsel.” The suit contends that Mueller essentially took an old, unrelated, closed case off the shelf and indicted Manafort for it as part of the Trump-Russia investigation.
It seems clear that in the Manafort indictment, Mueller has moved away from his original assignment. Manafort’s core contention is that Rosenstein’s kitchen-sink appointment order allowed Mueller to do that without — as required by the special counsel regulations — seeking permission to do so. But what about the possibility that Mueller has secretly gone back to Rosenstein to get the OK to move beyond the original order? In the suit, Manafort’s lawyers note that on Sept. 12, 2017, they asked Rosenstein to confirm or deny whether he had given Mueller additional jurisdiction. “Mr. Rosenstein has not responded; nor has anyone else from his office,” the lawsuit says.
What the lawsuit suggests is that Rosenstein avoided having to make such decisions by simply giving Mueller all the authority in the world to begin with. And that, Manafort argues, is not in line with the regulations that created the special counsel’s office to begin with.
There is plenty of legal arcana in the suit, and many legal objections to be made to it. And Mueller and Rosenstein could moot the whole thing by explicitly expanding Mueller’s authority to include specific activities which have no connection to the Trump-Russia affair. But as a political case, Manafort makes a strong point: Mueller is prosecuting people (Manafort and associate Rick Gates) for alleged crimes that have nothing to do with Donald Trump and Russia in the 2016 election. And that political argument may be heard more and more as the Mueller investigation goes on.