Franklin, Andrews, Kramer & Edelstein

[scion]

Paul Manafort’s Desperate Legal Gamble

By NORMAN EISEN and CONOR SHAW January 05, 2018
https://www.politico.com/magazine/story/2018/01/05/paul-manafort-robert-mueller-gamble-216250

When faced with the choice of whether or not to cooperate with special counsel Robert Mueller, George Papadopoulos and Michael Flynn reached the same wise conclusion: far better to strike a deal than bet on unknown contingencies such as presidential pardons.

But former Trump campaign chairman Paul Manafort has made a very different calculation. He has stubbornly fought Mueller, all but daring him to file charges, and when he did, excoriating them through his lawyer’s public statements. Now, by filing a federal suit challenging Mueller’s appointment and authority to indict him, Manafort is engaging in his latest high-wire publicity stunt—one that risks a dangerous fall.

As a matter of law, Manafort’s suit is destined to fail. Congress has given the attorney general broad discretion to delegate powers to subordinate officers, and courts have routinely rejected challenges to the breadth or form of such delegation. The department’s regulations require that a special counsel “be provided with a specific factual statement of the matter to be investigated.” Deputy Attorney General Rod Rosenstein’s order authorizing Mueller to “conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017” including “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise directly from the investigation” easily satisfies that requirement.

During recent testimony before the House Judiciary Committee, Rosenstein stated that he had discussed that scope with Mueller at the outset of his investigation and has continued to do so, “And, to the extent there was any ambiguity about it, he’s received my permission to include those matters within his investigation.” Rosenstein’s statements are perfectly consistent with the authority he is exercising as acting attorney general and the Department of Justice's special counsel regulations, both of which give him authority to confer additional jurisdiction to the special counsel.

As a factual matter, Manafort’s claim relies on what is at best a strained reading of the facts. The offenses he is alleged to have committed stem from his work for a pro-Russia party in Ukraine. Even based on what we know now, the better view is that his alleged offenses did “directly arise” from the investigation into Russian interference in the 2016 election and/or cooperation with Russia—and were therefore consistent with the jurisdiction Rosenstein originally conferred to Mueller.

DOJ responded with a statement calling Manafort’s lawsuit frivolous, but acknowledged that “the defendant is entitled to file whatever he wants.” While true, DOJ’s statement did not make the additional point that it is extremely unusual for a defendant to file a civil suit asking one federal judge to essentially bring an end to criminal proceedings being overseen by another. If Manafort truly believed in the strength of his arguments, he could raise them as a defense in his criminal case rather than launching a collateral attack. That alone is grounds to dismiss the civil action.

So what is really going on here? Manafort’s complaint that Mueller is going outside his mandate is a transparent effort to sound a theme that has proved popular with the president and his enablers: Mueller as rule breaker. First, there was the (false) claim that Mueller had conflicts. Then the charges (also unsubstantiated) that his team did. Then the assault on an agent who had sent anti-Trump text messages during the campaign (though Mueller removed him immediately upon learning of it).

But the suit is most similar to the abortive recent attempt to claim Mueller had wrongly seized privileged Trump transition emails. There too, a lengthy but empty legal document was put together by a Trump associate (a counsel for the transition). In that case as well, Mueller was accused of going outside his authority. And, like the Manafort action, the unseriousness of that claim was proven by the fact it was lodged in the wrong forum—a letter to Congress—rather than a motion to the supervising federal court.

Despite all of that, Trump picked up the claim, stating, “My people were very upset to see that.” Manafort is clearly hoping for the same presidential backing here. And if there should eventually be a broad pardon by Trump for those implicated by Mueller, can there be any doubt Manafort would accept it?

Danger lurks in that strategy. Trump has not so far taken up Manafort’s cause; unlike with Michael Flynn, he hasn’t said a kind word about him since the indictment. Nor is the president known for his loyalty or predictability. And his pardon power extends only to federal offenses; Mueller is reportedly working with the New York state attorney general, and Trump cannot help Manafort there.

In the meantime, Manafort’s case is speeding to trial against a prosecutor who has overwhelming evidence against him as detailed in the indictment. Now he has given Mueller another reason to pursue that case with vigor. If like most defendants Manafort should decide to plead, his chances of getting any break at all just shrank. And we don’t even want to think about what a sentencing phase would look like. Manafort’s litigation gamble is a very risky bet indeed—one he seems destined to lose.

Norman Eisen, a senior fellow at the Brookings Institution, was the chief White House ethics lawyer from 2009 to 2011 and ambassador to the Czech Republic from 2011 to 2014.

Conor Shaw is counsel for Citizens for Responsibility and Ethics in Washington (CREW).

https://www.politico.com/magazine/story/2018/01/05/paul-manafort-robert-mueller-gamble-216250