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Paul Manafort sues to rein in Mueller

Paul Manafort sues to rein in Mueller

Seeks to limit Mueller to matters related to alleged election collusion.

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:


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
Appointment Order;

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.


Paul Manafort v. DOJ, Rosenstein, Mueller – Complaint by Legal Insurrection on Scribd


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I believe you mean the homonym ‘rein in’ as in gain control over instead of its homonym ‘reign’, as in rule.

Mueller, on the other hand, seems to be the puppet of those still in open rebellion that their plans to rule via hillary were outfoxed at the ballot box.

Those who want to reign need to be reined in.

    notamemberofanyorganizedpolicital in reply to Robin. | January 3, 2018 at 5:37 pm

    Both work for me.

    Mullah Mueller is and has never been anything other than a Cinton Mob flunkie!

OleDirtyBarrister | January 3, 2018 at 5:25 pm

It will be interesting to see if the govt raises abstention arguments due to the availability of adjudication in the pending criminal case, and then whether the court abstains.

Looks like a slam dunk.
Should be fun.

    Now, I received a down-vote for that statement…
    And I am just scratching my head wondering why.
    Could down-voter please explain?

      JoAnne in reply to snowshooze. | January 3, 2018 at 6:46 pm

      It’s oriba Yellowsnake. He checks in just to down vote everyone.

        JoAnne in reply to JoAnne. | January 3, 2018 at 6:46 pm

        That would be “probably!”

          YellowSnake in reply to JoAnne. | January 4, 2018 at 10:54 am

          That would be and emphatic NOT. I almost never vote. If I disagree with something, JoAnne, I tell you what my reasoning is. I am amazed at how you simply pull stuff out of you A$$ because you don’t know what you are talking about.

          On this rare occasion, I will give you a down vote.

        You forgot the other two usual suspects.

          Who would that be? I think thumbs down just because you disagree with someone is really childish. I only do that when someone is being obnoxious or profane. Just agree to disagree and move on.

        The theory is very interesting.

        The only problem is the cause of action could be cured with an expansion of Herr Mueller’s authority. Even if charges are dropped, they could be refiled.

        But by then, Mueller’s reputation will be such that you will find him trying to audition for a Jockey shorts ad in AARP’s magazine.

        You can bet the trolls here are a boilerroom group at some leftist sh-thole of a college. You can also be sure soros is funding it.

        Here the name is ‘Yellowsnake.’ On the Geritol blog, it’s ‘CrapswheneverIwantto.’

        They should just go by one name, and be done with it: The Basement Bozos.

      Gremlin1974 in reply to snowshooze. | January 4, 2018 at 2:19 pm

      Actually I think we decided a couple of years ago that is was some kind of bot that looks for keywords and downvotes if a comment contains those words.

      If I remember correctly the Prof or one of the editors even wrote about it and admitted they don’t pay much attention to the votes anyway.

So is this angling for a dismissal of the charges, or to get them transferred to a different venue with a different prosecutor/judge who is more likely to treat them as the lightweight wrist-slapping type of crime that they really are?

    I’m no lawyer (although I may have played doctor in kindergarten), but if this lawsuit has traction, I believe it will challenge the entire witch-hunt by mueller and his henchmen.

    Manafort seems to be acting on behalf of all of mueller’s present and future victims. I, for one, am rooting for Manafort.

    He’s asking for a ruling that the entire Mueller investigation was improperly chartered (which according to the SC statute, it was), therefore it should be ended, and any actions as a result of it should be thrown out as “fruit of the poisonous tree”.

      Yes, I know he’s *asking* for that.

      It just seems *really* unlikely that he’s going to be able to waltz up to the judge-who-was-picked-by-Mueller-for-all-intents-and-purposes and say “Excuse me, this case is totally invalid and all the millions of dollars put into it have just been flushed down the crapper.”

      So I(non-laywer)’m left with three possibilities.
      1) He’s serious.
      2) This is a wedge which can be used in an appeal after the trial is over.
      3) This is the first step in which the case is quietly moved to a much different venue, a few No-Spectators-Allowed closed court sessions are held, and Manafort pleads to the equivalent of jaywalking while the rest of the charges go away.
      4) ______

The entier “Russia Collusion” thing has been based on nothing but smoke and mirrors from the beginning to anyone who was paying attention.

Mueller was appointed for one reason and one reason only and that was to keep pressure on the Trump administration hoping they actually messed up or to hopefully eventually find a crime. (Which, as the Prof. points out, is not how our legal system is supposed to work.) Basically, against all odds Trump won and it threw the entire establishment and deep state for a damn loop so they started this crap and appointed a political hack to be a continuous hindrance, not that it has worked very well.

I hope this gives Sessions the cover he needs to fire Rosenstein and Mueller.

I agree the order exceeded Rosenstein’s authority, which is something that Sessions should have addressed immediately. (I don’t know what happened to Sessions but he needs to get his old moxie back.) Also, it is glaringly obvious that Mueller has exceeded the authority of his mandate.

However, I think the chances of the DC court intervening is slim.

It will be interesting if they do find in Manforts favor I can hear the heads exploding already.

    Subotai Bahadur in reply to Gremlin1974. | January 3, 2018 at 7:41 pm

    1) Sessions has no intention of rousing himself from his slumber, regardless. If a court overturns Mueller, he may be stopped, but that implies that the system will actually hear the case and there is a rule of law. Both dubious.

    2) Courts rule according to the ideology of the judge or their personal interests. Statutes and precedent are secondary or tertiary. This case will have to go through the appellate process repeatedly, and may be settled by the Tri-Centennial.

I just noticed several fair and honest observations were down-voted as was mine.
Is there an anonymous disgruntled Democrat in our midst??
I don’t care about the popularity contest so much as figuring out why a down-vote was called out.

    4th armored div in reply to snowshooze. | January 3, 2018 at 6:29 pm

    There is at least TROLL and at least Trump HATER.

      The secret ballot is a double edged sword.
      In this instance, a coward receives anonymity and abuses it.

        JoAnne in reply to snowshooze. | January 3, 2018 at 6:48 pm

        As I said before, Yellowsnake. Yellow worm would be more like it.

          YellowSnake in reply to JoAnne. | January 4, 2018 at 10:59 am

          Still wrong. FYI, YellowSnake is short for YellowSnakeInChief which should have been OrangeSnakeInChief. But I never saw the utility of creating a new Id.

          Your belief is proof that what you believe lacks evidence.

          Massinsanity in reply to JoAnne. | January 4, 2018 at 3:43 pm

          Cowardly belly crawler is an apt user name.

      YellowSnake in reply to 4th armored div. | January 4, 2018 at 11:20 am

      I do dislike Trump, intensely, for completely rational reasons relating to his propensity to lie, even when the truth is obvious, and to his being the very embodiment of a narcissist. Additionally, loyalty for Trump is a one way street and he is a Olympic Class hypocrite. He is vindictive.

      Does anyone, here, deny that Trump said (more than once) that he would be hurt by the tax bill? Does anyone, here, believe that to be true? I am not interested in a rationalization of why he should benefit. I am talking about a big fat lie that he kept repeating. This was not a campaign promise. It was a big fat lie.

      I probably heard of him before the rest of you. I have heard his Brand of BS all my life – long before it mattered much to me. I just rolled my eyes and went on with my life. Now the greater part of the world is rolling their eyes; and no, I don’t like it.

      Funny how the closer your proximity to where he lived, the more you dislike him. With Trump, proximity really breeds contempt.

        Jack Klompus in reply to YellowSnake. | January 4, 2018 at 1:37 pm

        You’ve never been laid in your entire miserable life, have you?

        You dislike the entire capitalism free market liberty concept you POS commie.

        You have no idea how the tax bill affects Trumps taxes. Zero.

        I don’t know him, therefore will withhold judgement. But I like what he’s doing. And for the first time ever, I know what the president is thinking! I like that. Even if I don’t always like how he does it. And I like how he’s not kowtowing before the world, especially N. Korea and Iran. I’ll take substance over style anytime.

        And, if I was wrong about you being the one that downvotes everyone, I apologize.

    OleDirtyBarrister in reply to snowshooze. | January 3, 2018 at 6:57 pm

    I have no idea why you are concerned about a vote, period. But your remarks bring to mind the recent criticisms/warnings of former farcebook personnel.

    Perhaps someone reacted to the capriciousness of your suggestion of a slam dunk, when there are other possible outcomes, like abstention and losing.

    Dont worry about it. We all know whats up here.

    The down thumbs are a giveaway to trolls hiding the basement.

As a non-lawyer, I found this issue to have a horrifying degree of chaff scattered about, with one of the primary dispensers of that chaff being Andy McCarthy writing for The National Review. More qualified persons than I are welcome to read the relevant regulations, which I understand were used only once before by AG Janet Reno to review actions taken against the Branch Davidian cult in Waco, Texas.

Based on months of reading the arguments about this regulation, Acting AG Rosenstein has surely made clear to Manafort the scope of the investigation, and has expanded that scope as he has seen fit using his authority as de facto Attorney General in the matter, but he has seen fit to keep the scope private and not part of the report released to Congress and the public on the matter. The “Attorney General” is the sole judge of whether such confidentiality is required. Therefore, I personally have seen this avenue of attack as a non-starter for months, and an enormous artificial distraction.

    Pasquale Furioso in reply to JBourque. | January 3, 2018 at 8:46 pm

    The horrifying part of this is the violation of basic Constitutional rights. The 4th amendment was created to protect against prosecutorial pursuit sans evidence of criminal conduct, in essence what is referred to as a general warrant. The federal government should not be granted the ability to hunt for an unspecified crime using the vast resources and funds of the treasury, especially in the matter of politically-based amorphous charges that can be shoehorned into any shape in order to bring about the desired result. No person, the President included, should be put under this type of open-ended government inquisition.

    Pasquale Furioso in reply to JBourque. | January 3, 2018 at 10:35 pm

    Why would Mueller be needed to investigate anything other than the collusion question(though not having a crime to investigate regarding Trump even makes that seem unwarranted)? Remember the whole purpose of a special counsel is to investigate a crime where the AG has a conflict of interest so severe that he cannot oversee an investigation impartially, i.e. he may be required to investigate himself. The only area where Sessions would be impacted would be potential collusion. Manafort’s and Gates business dealings from years before would pose no conflict for Sessions to oversee.

    mathewsjw in reply to JBourque. | January 3, 2018 at 11:40 pm

    Still looking for (according to the DoJ) the Trump Deranged Rosenstein texts

    mathewsjw in reply to JBourque. | January 3, 2018 at 11:47 pm

    “Acting AG Rosenstein has surely made clear to Manafort the scope of the investigation” has no statutory requirement to do that commenting as a non-lawyer.. and has no reason to do so.

      Of course it’s not a statutory requirement. What I linked to is a regulation, not a statute. The regulation may state “the AG” must tell the special prosecutor what he is to investigate, but the requirement to tell the rest of us is very fragile. As long as Rosenstein is happy with the results, I would imagine it is legally solid. But that is my opinion only.

I am not a lawyer, not a constitutional expert, just some guy with a somewhat different perspective.
My screen name means “exile”.
I escaped communist Cuba in search of freedom, something that most people here in America take for granted. Not me. I know what it is to really lack freedom. I know the true meaning of the word ‘oppression’.
I know what it is to live in fear every single day, to wake up every morning thinking that tonight you will sleep in prison, just because.
From my perspective, Mueller looks really scary. What he’s doing reminds me of the ways of the dictatorship back in Cuba. Pick the victim first, find or make up the crime later. Once you become a target, they can destroy you.
No one should have that kind of power, especially here in America. The Mueller investigation is un-American, and should be shot down.

    Exiliado in reply to Exiliado. | January 3, 2018 at 8:25 pm

    “…should be shut down.”

    In America, we call them witch hunts (public) and baby hunts (private).

    That said, the Mueller investigation is notable for who is excluded from investigation, beginning with Obama, Clinton, other members of the DNC, and the post-coup government in Kiev.

What does Herr Mueller think he’s posing for in that photo? – a men’s cologne ad?

Mueller’s official photo looks like something out of a Macy’s sale flyer – it’s becomes kind of clear this whole investigation is about Mueller’s self aggrandizement.

With his tie as crooked as mueller himself, not even JC Pennys would use it.

What, Raggedy Pete has no opinion on all tis?

DouglasJBender | January 4, 2018 at 4:16 am

“The Chipmunk Diaries: Day 582 of My Trump Investigation — Things are beginning to look a little squirrelly. So much so that we’ve had to have our crack team at The New York Times put out a blatant lie about some Papadopolous kid being the reason the FISA warrants are first issued. Anything to deflect from the fact it was the Trump dossier that sparked this whole thing, and it’s a pack of lies created as opposition research for Hillary Clinton. Sometimes I just want to hug myself at the beautiful corruotness of it all. I love my job.”

DouglasJBender | January 4, 2018 at 4:17 am

{Please edit my above comment for spelling (“corruotness”). Thank you.}

Anyone thinking Swamp Sessions will suddenly change his stripes will be sorely disappointed- any more than Joe Biden will stop molesting little girls.

Sessions is compromised, either by blackmail or corruption.

Biden should have his hands cut off.

Manafort undoubtedly has top notch lawyers. Nevertheless, instead of collaterally attacking Mueller’s authority to prosecute Manafort, by commencing this civil action, shouldn’t Manafort’s lawyers have directly attacked Mueller’s authority by filing a motion in the criminal case to dismiss that case?

    OleDirtyBarrister in reply to Guahan. | January 5, 2018 at 12:04 pm

    Probably. See my posts herein with the links to federal law and the links regarding Rick Perry’s criminal case in state court.

OleDirtyBarrister | January 5, 2018 at 12:03 pm

Even through the drunken DA in Travis County running the public integrity unit in Texas was a state officer pursuing state claims in state courts, it demonstrates my point about the ability to challenge a prosecutor’s authority in a criminal case. Habeas proceedings are generally characterized as civil in a post-conviction setting, but it can be pursued on a pre-trial basis in a criminal case.

Rick Perry’s defense team attacked the constitutionality and statutory legitimacy of his indictment through a pre-trial Petition For Writ Of Habeas Corpus.