Beginning of the end for Mueller? Paul Manafort’s civil suit

There has been some confusion and no little ridicule of the civil suit which Paul Manafort has brought against Special Counsel Robert Mueller and Deputy Attorney General Rod Rosenstein.

In my opinion the ridicule is misplaced because Manafort’s suit has homed in on what is beyond question the single greatest weakness of Robert Mueller’s Russiagate inquiry.

This is that as the evidence of collusion during the 2016 election between the Trump campaign and Russia which Mueller is supposed to be investigating stubbornly refuses to appear – because it doesn’t exist – Mueller is increasingly going off on tangents investigating other wholly unrelated matters.

The propriety of that is questionable, and now it is its legality which Manafort is challenging.

Manafort’s suit runs to 17 pages of closely reasoned legal argument.  However it is in essence very simple.

Manafort makes the point that none of the matters for which Mueller has investigated and indicted him have any connection to the Trump campaign, the Russians, or the 2016 election, which are supposed to be the subjects of Mueller’s inquiry.

Instead all the matters for which Mueller has investigated and indicted Manafort predate Manafort’s involvement in the Trump campaign and concern (1) his various business dealings extending all the way back to 2005; and (2) his publicly disclosed work for the pre-Maidan government of Ukraine, which is a matter of public knowledge, and which Manafort says he repeatedly discussed at the time when he was doing this work with the US’s ambassador to Ukraine.

Manafort moreover says that all of the allegations for which Mueller has investigated and indicted him were previously investigated by the FBI, which in 2014  – ie. before Donald Trump launched his Presidential campaign and two years before the 2016 Presidential election – fully cleared him and closed down the case against him.

Manafort also says that contrary to what some reports are saying Mueller has indicted him on no fresh evidence but wholly on the basis of the same evidence which was disclosed to the FBI before 2014 and upon which they cleared him and closed down the case.  Manafort moreover says that most of this evidence was disclosed to the FBI by himself.

Manafort says the case which has been brought against him is wrong because it is brought beyond Mueller’s power to bring ie. it is what lawyers call ultra vires.

As concerns the Justice Department Manafort argues that Deputy Attorney General Rod Rosenstein’s Appointment Order appointing Mueller Special Counsel was improperly drafted because it purports to give Mueller in advance carte blanche to investigate any matter even if it is wholly unrelated to the collusion allegations which are supposed to be the subject of Mueller’s inquiry, this being contrary to the Justice Department’s own Code for appointing Special Counsel and to the will of Congress, which in 1999 specifically limited the remit of Special Counsel’s investigations precisely because of concerns about the way they had been abused previously.

As for Mueller, Manafort argues that even if his challenge against Rosenstein’s Appointment Order is wrong, Mueller’s actions in bringing a case against him based on his private business dealings before he joined the Trump campaign and before the 2016 election is so far removed from the supposed purpose of Mueller’s inquiry – which is to investigate the allegations of collusion during the election between the Trump campaign and the Russians – that Mueller’s inquiry has become “completely unmoored from the Special Counsel’s original jurisdiction” and has so far exceeded its limits that its amounts to an abuse of process.

To my knowledge four main arguments have been made against Manafort’s suit. These are

(1) that the Justice Department’s Code expressly forbids individuals affected by breaches of the Code from suing because they have suffered from these breaches;

(2) that if Mueller really is acting outside his powers then the problem is easily solved because the Code permits Deputy Attorney General Rod Rosenstein to expand Mueller’s powers of investigation following a request from Mueller; and

(3) that Manafort’s claim stands no prospect of success because it would require the Supreme Court of the United States to reverse the decision it took in Morrison v. Olson 487 U.S. 654 (1988);

(4) that Manafort is wrong in claiming that he is entitled to the civil Court’s relief since he has the right to apply to the criminal court for the case against him to be struck out, and his claim is really simply a device to prevent a criminal case being brought against him.

I am not an expert in US administrative law, but I have to say that none of these arguments looks to me especially convincing.

The first argument looks to me to be based upon a misunderstanding of the nature of the case Manafort is seeking to bring.

Manafort is not suing Rosenstein and Mueller, which is what the Justice Department’s Code appears to prohibit.  What he is doing is applying for a Judicial Review by the Court of Rosenstein’s and Mueller’s exercise of their powers, which is something completely different thing.

It is a fundamental legal principle that the Court has the power to review actions of the executive branch to determine whether or not they are lawful.  This is a fundamental power possessed by the Court in all states which are or which pretend to be governed by law.

In this case Manafort is saying that Rosenstein and Mueller – both officials of the executive branch – are acting unlawfully because they are acting beyond their powers.  If he is right then I have no doubt the Court can review it and take whatever action it deems necessary in response to it.

It is to my mind all but inconceivable that the Justice Department’s Code deprives the Court of its entire right to exercise its inherent power to determine whether or not actions of officials of the Justice Department – the branch of the executive to which Rosenstein and Mueller belong – are acting unlawfully, and I cannot imagine that Manafort’s suit will fail for that reason.

As for the second argument, it is partially answered by these words in Manafort’s claim

On September 12, 2017, undersigned Counsel for Mr. Manafort sent a letter to Mr. Rosenstein requesting that he confirm or deny that, prior to July 26, 2017, he granted Mr. Mueller additional jurisdiction to investigate Mr. Manafort for potential tax crimes and other white-collar criminal offences dating back to January 1st, 2006, and that prior to August 3, 2017, he authorized Mr. Mueller to prosecute Mr. Manafort for tax crimes related to the 2010 tax year.  Mr. Rosenstein has not responded, and nor has anyone else from his office.

I would add that even if a discussion did take place between Rosenstein and Mueller over the course of which Rosenstein did authorise Mueller to investigate Manafort for “potential tax crimes and other white-collar criminal offences dating back to January 1st, 2006”, I would expect that for a Court to decide that such an authorisation was valid it would have to be set out in writing probably as an amendment to Mueller’s original Appointment Order.

Since no such amendment to Mueller’s Appointment Order has been made or has been made public that is a good reason for doubting that such a grant of further authority has been lawfully made.

As for the suggestion that Rosenstein can simply authorise Mueller’s actions retrospectively, that looks to me like a straightforward case of retrospective law making, which would almost certainly be unlawful.

As for Morrison v. Olson, in that case as I understand it the Supreme Court of the United States was asked to decide whether the Office of the Independent Counsel created by the Independent Counsel Act was or was not constitutional (it decided that it was constitutional).

If so then I cannot see the relevance of Morrison v. Olson to Manafort’s case.  The Office of the Independent Counsel which was the subject of Morrison v. Olson no longer exists, and Manafort is not disputing the legality of Mueller’s appointment or of his office, merely the way Mueller has exercised the powers of his office, which Manafort says Mueller has exercised unlawfully.

Lastly, the argument that Manafort’s correct remedy is not to seek a Judicial Review of Rosenstein’s and Mueller’s actions but to apply to the trial Judge in the criminal court to strike out the case – presumably on the grounds that it is brought in bad faith – and that Manafort’s claim is simply a device to prevent a criminal prosecution from being brought against him looks to me to be confusing completely different issues which each fall separately to be decided respectively by administrative law and by criminal law.

If Rosenstein and Mueller really are acting beyond their powers then that certainly looks to me to be a matter of administrative law to be determined by a civil court in response to an application for Judicial Review.  I cannot see that it has anything to do with the conduct of a criminal case, in which the criminal court’s concern is primarily with the guilt or innocence of the accused.

Certainly a criminal court can strike out a prosecution if it decides that it is brought in bad faith.  However that does not seem to me to be the issue in Manafort’s case.  Rather the issue is whether or not Rosenstein and Mueller as individuals are acting unlawfully and beyond their powers by investigating and then bringing a case against Manafort in a manner which allegedly breaches the Justice Department’s Code and which goes against the will of Congress.

That seems to me a completely different situation from one in which a civil court is asked to meddle in a criminal case brought lawfully by a prosecutor acting within his or her powers, regardless of whether that case is brought in bad faith or not.

If the four objections I have seen to Manafort’s claim look to me unconvincing, does that mean I think Manafort’s claim will succeed?

I am not an expert in US administrative law so I am not in a position to say.  However on the face of it it does look to me as if Manafort is making a compelling case.  It will however be for the federal courts of the United States to decide it.

I would however before ending this discussion of Manafort’s case make a number of further points about it

(1) Manafort’s claim against Rosenstein and Mueller shows just how intense Mueller’s pressure on Manafort has been.

According to Manafort’s claim, not only did Mueller’s people carry out an early morning search of his house – which if one is to believe Manafort came up with nothing – but Mueller has served no few than one hundred (!) subpoenas on Manafort, which seems extraordinary and even oppressive given the short time the investigation of him was underway.

Given what we now know about the importance of the Trump Dossier in triggering the Russiagate inquiry and in providing the inquiry with its frame narrative, I suspect that the obsessive concentration on Manafort is the result of the prominent role the Trump Dossier accords him.  If so then that may come out in Court in the case which Manafort is now bringing, which could prove to be highly embarrassing for the Democrats, for the Justice Department, for Mueller, and for the FBI.

(2) Though Manafort’s suit is an application for Judicial Review not a private lawsuit, I have no doubt that if it is successful private law suits will follow.

A few months ago there were reports – never denied – that members of Mueller’s team were taking out private insurance because they were afraid of future law suits brought by those they were investigating.

In light of Manafort’s application for Judicial Review and what his claim tells us about the way in which the case against him has been conducted, I have to say that I now completely understand why this happened.

The fact that some of Mueller’s people have been so concerned about the way in which the case against Manafort has been conducted so as to take out private insurance to protect themselves from possible claims he may one day bring against them is incidentally a further sign that there may be more to Manafort’s application for Judicial Review than some think, and that the ridicule heaped on it is misplaced.

(3) There has been some talk recently that Mueller is considering issuing a “supplemental indictment” against Manafort.

In light of Manafort’s application for Judicial Review – of which Rosenstein and Mueller must have been informed in advance – it seems at least possible that this “supplemental indictment” – if it is indeed really planned – is intended to get round the problem identified in Manafort’s claim that Mueller investigated him for “potential tax crimes and other white-collar criminal offences dating back to January 1st, 2006” without first getting proper authority from Rosenstein.

Presumably the plan is that Rosenstein will now give that authority, and Mueller will then issue his new “supplemental indictment” based upon it.

If that is the plan, then I have to say I have my doubts about whether it can succeed.

Firstly, issuing a “supplemental indictment” for such a reason is all but an admission that Manafort’s decision to apply for Judicial Review is justified on the current facts.

Secondly, given that the basis of Manafort’s application for Judicial Review is Mueller’s investigation of him rather than the issuing of the indictment against him, I cannot see how – since nothing can now change the fact of the existence of the investigation – the plan can work.

(4) Judicial Review is an area of the law which falls squarely within the jurisdiction of the Supreme Court of the United States.

Irrespective of what happens at the first instance court which will hear the case apparently in February, I expect that this case will eventually go to the Supreme Court of the United States and will be decided there.

(5) Needless to say, if Manafort is successful then that will be the end of Mueller’s inquiry and of the Russiagate investigation.

I cannot see either Rosenstein or Mueller remaining in their positions if the Court – especially if the court in question is the Supreme Court of the United States – decides that they have acted beyond their powers and quashes Mueller’s indictment.  At that point I would expect them both to resign.

With them gone the credibility of the Russiagate investigation will be shot to pieces, and at that point it will effectively all be over for Russiagate.

What that means is that of all the legal claims which have been issued up to now it is Manafort’s application for Judicial Review – not Mueller’s indictments of Manafort, Gates, Papadopoulos or Flynn – which looks to be the most important.

The stakes could not be higher, and the US’s huge community of constitutional and administrative lawyers – the biggest and most sophisticated on earth – will be following the case closely.