A lawsuit by Paul Manafort, the former Trump campaign chairman, challenging special counsel Robert Mueller’s appointment got a chilly reception from a federal judge on Wednesday, despite several moves by Manafort’s attorneys to narrow their legal claims and their demands for relief.
During oral arguments that stretched to nearly 90 minutes, U.S. District Court Judge Amy Berman Jackson sounded deeply skeptical of the suit and often frustrated with the way Manafort’s legal team presented it.
Kevin Downing, one of Manafort’s attorneys, told Jackson he was not seeking to use the civil case to dismiss the pair of criminal indictments his client faces in Washington and Virginia, but solely to prevent further investigation of Manafort and new indictments in other courts.
“They can bring new charges. They can bring new indictments and continue to investigate,” Downing complained. “Chasing indictment after indictment is not an adequate remedy.”
But Jackson said the possibility of additional indictments against Manafort seemed speculative.
“You have to wait until the harm is crystallized,” the judge said. “Now, you say you don’t want to stop the things that happened to me, you want to stop the things I don’t know have happened to me. I don’t understand what’s left to your case.”
As the arguments progressed, Downing also expressed suspicion about a disclosure by the Justice Department on Monday that Deputy Attorney General Rod Rosenstein sent Mueller a memo in August detailing the scope of the special counsel’s investigation, two and a half months after Mueller, a former FBI director, was appointed to oversee the examination of potential collusion between the Trump campaign and Russia.
“The acting attorney general didn’t know [what was being investigated] when Mueller was appointed in May?” Downing asked. He also noted that FBI agents executing a search warrant raided Manafort’s home in Alexandria, Virginia, in July, several days before Rosenstein drafted the memo describing in detail which matters Mueller was authorized to pursue.
Downing said the sequence of events supported Manafort’s argument that Mueller’s jurisdiction was not clearly delineated at the time of his appointment, despite Justice Department regulations saying a special counsel should be given “a specific factual statement of the matter to be investigated.”
“We have major issues with what really happened here,” Downing said. “There needs to be a decision on Day One” about a special counsel’s jurisdiction, he added.
Jackson at one point cryptically referred to the August memo from Rosenstein as “the elephant in the room.” The judge signaled, however, that she might toss out Manafort’s suit without even delving into the issue of how Mueller was appointed. The special counsel regulations contain language saying they don’t create rights for private individuals and are solely intended to govern the internal management of the Justice Department.
“What am I supposed to do about that? Ignore it?” Jackson asked.
“Yes, of course,” Downing replied. “They can write anything they want in the bottom of the regulation.”
However, Justice Department attorney Daniel Schwei noted that courts had repeatedly rejected legal challenges over allegations of noncompliance with departmental policies that carry similar disclaimers, including a manual that tells prosecutors how to handle various types of cases.
“The regulations are for the benefit of the government,” not private parties, Schwei said. He also warned that having the court look into the Justice Department’s internal decision-making process would represent “a tremendous incursion on the separation of powers.”
One of Jackson’s few upbeat notes for Manafort’s team was her observation that the special counsel regulations do seem to deal with weighty issues that have an impact on the public. “They’re not about computer systems at the Department of Justice,” she observed.
In addition to the lawsuit Manafort filed in January, his attorneys have filed motions in the criminal cases in both Washington and Virginia asking that they be thrown out on similar grounds concerning Mueller’s authority and the validity of his appointment.
If Jackson dismisses the suit, as seems likely based on Wednesday’s hearing, Manafort’s team will have an option open to them that they don’t in the criminal cases: an immediate appeal.
If she and the Virginia-based judge reject the defense challenges to Mueller’s authority in the pending criminal cases, Manafort will probably have to wait to see whether he’s convicted in one of the cases before he can take the legal issue to an appeals court.
During Wednesday’s hearing, Downing formally withdrew part of the civil suit claiming that Mueller has exceeded his authority, but the defense may still pursue that issue in the criminal cases.
A phalanx of government attorneys attended Wednesday’s hearing, including at least half a dozen prosecutors from Mueller’s office and several from the Justice Department’s Civil Division, which handles lawsuits against the federal government. Mueller’s team initially arrayed itself on the prosecution side of the courtroom, but swapped over shortly before the hearing began after prosecutor Greg Andres signaled to colleagues that they were officially on defense in the civil case.