4 fatal flaws in Paul Manafort’s lawsuit claiming Mueller can’t prosecute him

This is not how the law works.

Former Trump campaign manager Paul Manafort and his wife Kathleen arrive at the Prettyman Federal Courthouse for a bail hearing November 6, 2017 in Washington, D.C. (CREDIT: Mark Wilson/Getty Images)
Former Trump campaign manager Paul Manafort and his wife Kathleen arrive at the Prettyman Federal Courthouse for a bail hearing November 6, 2017 in Washington, D.C. (CREDIT: Mark Wilson/Getty Images)

Last October, Special Counsel Robert Mueller filed multiple criminal charges against former Trump campaign manager Paul Manafort. Manafort’s alleged crimes arose out his dealings with a pro-Russian political party and political leaders in Ukraine.

On Wednesday, Manafort’s lawyers responded to this indictment with a highly unusual lawsuit challenging Mueller’s authority to prosecute the case.

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The lawsuit is procedurally irregular. It relies on regulations that explicitly deny Manafort a right to sue. It makes dubious factual claims. And it is far from clear that Manafort is entitled to any meaningful remedy even if all of his claims are accurate.

Ordinarily, when a criminal defendant wishes to challenge the legal basis for a prosecution against them, they raise that challenge over the course of their criminal trial. Manafort’s attorneys, however, filed a separate civil suit asking a judge to enjoin Mueller from continuing this investigation and prosecution of Manafort. That, in and of itself, is a strange tactic which risks annoying the trial judge assigned to hear his criminal trial — judges typically don’t appreciate it when you go behind their back — and there are legal doctrines in place that normally prevent the same matter from being litigated simultaneously before different judges.

That said, it is likely that Manafort will eventually be able to raise his objections to Mueller before at least one judge. It is far less likely that any judge will take them seriously.

The crux of Manafort’s argument against Mueller is that the Justice Department regulations governing appointment of a special counsel require the attorney general (or, in this case, Acting Attorney General Rod Rosenstein) to provide the special counsel “with a specific factual statement of the matter to be investigated.” Manafort claims that the specific factual statement in Rosenstein’s order is not broad enough to capture Manafort’s business dealings in Ukraine, and that a broadly worded provision of that order exceeds Rosenstein’s authority.

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A glaring problem with this argument is that, even if Manafort is right, it is far from clear that he is allowed to bring this challenge. The regulations Manafort relies on explicitly state that they “are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.” So Manafort is claiming a right that the regulations explicitly deny him.

Even if a court ignores this limitation, moreover, Manafort’s argument relies on a flimsy factual claim. Rosenstein’s order appointing Mueller states that Mueller may investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” But Manafort was indicted on charges arising out of his dealings with the Ukrainian government, not the Russians. Such an indictment, Manafort’s lawyers claim, exceeds Mueller’s authority.

It’s a dubious argument because Manafort wasn’t just working for Ukrainian politicians and a Ukrainian political party. He was working for Ukraine’s pro-Russia party. That alone may be enough to establish a “link” between Manafort and the Russian government.

But let’s assume for the sake of argument that it does not, and that Mueller actually has exceeded his authority. What then?

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Here’s what the Justice Department’s regulations have to say about special counsels who wish to investigate matters outside of their originally granted authority:

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.

So even if Mueller’s investigation into Manafort did exceed his original authority, Mueller’s only obligation was to “consult” with Rosenstein about his decision to expand the investigation. At this point, Rosenstein would either expand Mueller’s authority or assign the new matters to another prosecutor.

So even if Manafort’s lawsuit prevails, the most that the former Trump campaign official can reasonably hope for is that a court may order Mueller to have a conversation with Rosenstein — a conversation, by the way, that may have already happened.

The bottom line, in other words, is that Manafort’s tactic is unlikely to succeed. He’s claiming a right he doesn’t have, in a courtroom he shouldn’t be in, based on facts that probably don’t exist — and, even if Manafort’s lawyers are right about everything, Mueller and Rosenstein can cure the alleged problems Manafort raises with a phone call or a few emails.