One of the concerns about the appointment of Robert Mueller as special counsel is that from the get go his investigation has appeared to go far afield of the “Russia collusion” that was the basis for his appointment.
I made this point in an earlier post with regard to the guilty plea of Michael Flynn for lying with regard to post-election transition matters, Why is Robert Mueller even investigating the presidential transition?
It is clear from the prosecution of Flynn that Mueller views the transition as within the scope of Mueller’s investigation, otherwise there would have been no reason for Mueller to prosecute Flynn. The lying took place before Mueller was appointed and did not concern conversations during the Trump campaign. For lying to the FBI when he did, Flynn could have been prosecuted by DOJ itself.
Yet Mueller’s team took it on themselves to prosecute the case involving a crime (lying) that took place after the new administration was sworn in regarding a conversation during the transition. The public documents regarding Flynn’s plea make clear that the transition is in focus….
What authority, however, gives Mueller power to investigate the political strategies of the incoming Trump administration long after the election was over? It does not appear that Mueller has that power under the Order appointing him as Special Counsel.
I then examined the substance of the Order issued by acting Attorney General Rod Rosenstein (after Jeff Sessions recused himself), and concluded that Mueller was exceeding his authority:
To the extent Mueller’s team is investigating the political decisions and strategies of the incoming Trump administration during the transition period, it amounts to an interference in the post-election political process and is beyond Mueller’s authority.
Paul Manafort has been indicted for matters completely unrelated to and long prior to the election or the supposed “Russia collusion.
Manafort filed a Complaint (pdf.) in federal District Court in D.C. seeking, among other things, and order declaring that the appointment of Mueller to pursue “any matters that arose or may arise directly from” his investigation exceeded Rosenstein’s authority. That provision effectively purported to give Mueller roving authority to prosecute anything he finds, such as Manafort’s alleged long-ago crimes.
The full Complaint is embedded at the bottom of this post.
Here are the key summary paragraphs from the complaint setting forth the basis for Manafort’s suit:
7. This case arises from an appointment in excess of that limited authority— specifically, Acting Attorney General Rod J. Rosenstein’s order appointing Robert S. Mueller III as Special Counsel in May 2017 (“the Appointment Order”), attached hereto as Exhibit A.
8. 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.
9. As a result of the ultra vires Appointment Order, Mr. Mueller’s investigation of Mr. Manafort has extended far beyond “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” The investigation has focused on Mr. Manafort’s offshore business dealings that date back to as early as 2005—about a decade before the Trump presidential campaign launched—and have been known to the United States government for many years.
10. On October 27, 2017, the Office of the Special Counsel caused an indictment against Mr. Manafort to be returned. The indictment does not charge any links between Mr. Manafort and the Russian government. Instead, the Special Counsel has constructed an indictment that, at its essence, concerns failing to file certain informational reports of offshore bank accounts and failing to register as a foreign agent. None of the charges relate to Mr. Manafort’s activities during his brief stint in 2016 as the campaign manager for the Trump presidential campaign.
11. The actions of DOJ and Mr. Rosenstein in issuing the Appointment Order, and Mr. Mueller’s actions pursuant to the authority the Order granted him, were arbitrary, capricious, and not in accordance with the law under 5 U.S.C. § 706. By this action, Mr. Manafort asks this Court to hold those actions ultra vires and set them aside….
The Complaint addressed ancillary authority a special counsel has, and argues that it does not include becoming a roving prosecutor:
25. Those carefully crafted jurisdictional limitations serve critical values. They ensure that the scope of an investigation is limited to specific matters identified in advance by a politically accountable official—the Attorney General. They ensure that any additional matters beyond that are specifically approved by a politically accountable official—the Attorney General. Those limitations prevent the special counsel from becoming an unaccountable roving commission, with virtually unlimited resources, that can delve into citizens’ lives in search of criminality unrelated to the specific matters the special counsel was appointed to address.
That “roving” prosecutor concept is fundamental to our legal system. As I pointed out before, we don’t find the man first, then look for a crime. But that appears to be what is happening, Mueller found the man (Trump), now he’ll find the crime.
The Complaint continues that Rosenstein exceeded his power in purporting to grant Mueller such sweeping powers;
26. This suit arises from an appointment and the exercise of authority in defiance of those jurisdictional limitations. Whether DOJ’s special counsel regulations themselves “create any rights,” 28 C.F.R. § 600.10, they bind DOJ and the officers within DOJ. DOJ and its officials cannot grant a special counsel jurisdiction where DOJ regulations, such as 28 C.F.R. § 600.4, deny DOJ and its officials power to do so. Nor can the special counsel exercise jurisdiction that otherwise binding DOJ regulations prohibit. Those, however, are precisely the circumstances here.
Here’s the relief Mueller seeks:
PRAYER FOR RELIEF
WHEREFORE, judgment should be entered in favor of Plaintiff and against Defendants,
jointly and severally, and the Court should grant the following relief:
a. an order and judgment setting aside the Appointment Order and declaring it
invalid, arbitrary and capricious, an abuse of discretion, and otherwise not in
accordance with law;
b. an order and judgment declaring ultra vires and setting aside all actions taken
against Mr. Manafort pursuant to the Appointment Order;
c. an order and judgment declaring that Mr. Mueller lacks authority to investigate
business dealings not arising from the original jurisdiction set out in the
d. an order and judgment enjoining Mr. Mueller from investigating matters beyond
the scope of the grant of jurisdiction in the Appointment Order; and
e. any other relief as may be just and proper.
So what’s the chance of success of this lawsuit?
I don’t really feel that I’m in a position at the moment to assess that. It’s being dismissed out of hand by people who are interested in having Mueller take down Trump, so we’re going to get a lot of legal quackery from #TheResistance.
If I find some reasonable, credible analyses, I’ll add them.
But whether or not Manafort’s lawsuit succeeds, he has hit upon a fundamental problem of the Mueller investigation. We have a roving prosecutor who has identified the man he wants, Trump, and appears willing to do anything and go anywhere against anyone to advance that agenda.
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