The Executive Suite: Paul Manafort's Mysterious Lawsuit

Paul Manafort's recent lawsuit challenging the legality of his indictment by Special Prosecutor Robert Mueller raises a set of intriguing questions--not least about his attorney's litigation choices. The lawsuit is likely to take its place as one of the stranger, if perhaps more obscure, episodes in the already-bizarre saga of candidate and then President Trump's relationship with Russia and the investigation that seeks to uncover the facts about that relationship.

Recall the story up to now: In late October, a federal grand jury convened by Special Prosecutor Mueller indicted Manafort, the foreign-government lobbyist who served for a time as then-candidate Donald Trump's campaign manager. The indictment alleged a variety of violations of financial disclosure and foreign agent registration laws related to Manafort's work for Ukrainian politicians. Because of Manafort's prominence in the Trump campaign and his close ties to pro-Russian groups in Ukraine, his indictment immediately triggered speculation that Mueller was seeking to use Manafort to obtain information about the activities of other Russia-related conduct by high-ranking persons in Trumpworld.

On January 3, Manafort filed the lawsuit challenging his indictment. The legal grounds for that challenge are interesting enough (as explained later), but the first head-scratcher is a preliminary one: why file this lawsuit at all? The normal course, and certainly the more direct one, would have been to move to quash the indictment. Indeed, as Steve Vladeck has argued, the traditional rule against equitable civil relief when a criminal defendant can obtain an adequate remedy in the criminal proceeding suggests the legal error, and not just the tactical strangeness, of Manafort's suit.

But perhaps there's something underlying the suit beyond its technical legal claims. Perhaps the lawsuit aspires to a broader, more far-reaching result than the simple quashing of his indictment. Indeed, some of his requests for relief, for example, for "an order . . . setting aside" Deputy Attorney General Rod Rosenstein's charge to Mueller setting forth the scope of Mueller's investigative jurisdiction, do seem, at least formally, to go beyond the kind of relief that could be sought in a simple motion to quash his indictment. But presumably a favorable ruling in such a motion would rest on reasoning that would apply more generally, so it's not clear what the actual difference would be, unless Manafort simply wants to make a broader statement about the investigation.

Yet that speculation is called into question by the legal arguments the lawsuit actually makes. The second of the complaint's two counts alleges that Mueller's indictment of Manafort exceeded the authority Rosenstein gave to Mueller. Specifically, it alleges that Manafort's dealings with Ukraine were well-known to the FBI a decade before Mueller began his investigation. Thus, according to the lawsuit, those dealings could not be understood as "matters that arose or may arise directly from the investigation" into links between Russia and the Trump campaign--one of the heads of jurisdiction Rosenstein granted Mueller. But it's hard to see why that is. Just because Manafort's Ukraine-related activities occurred well before the Trump campaign was a gleam in anyone's eye, and just because the FBI knew about them long ago, doesn't mean that they did not "arise directly from" the Trump-Russia investigation. Indeed, common sense would suggest that Manafort's previous connections with Russia-affiliated entities would in fact be quite relevant to any connections that eventually developed between Russia and the Trump campaign in 2016.

But that second count is small-bore. More noteworthy from a public law perspective is the argument in Count One. In Count One Manafort alleges that Deputy Attorney General Rosenstein himself violated the DOJ's Special Prosecutor regulations when he charged Mueller with investigating " any matters that arose or may arise directly from the investigation" into links between Russia and the Trump campaign. According to the complaint, that charge violated the regulations' provision that "The Special Counsel will be provided with a specific factual statement of the matter to be investigated." According to Manafort, the "any matters" jurisdiction Rosenstein gave Mueller violates that provision. According to the complaint, that jurisdictional grant "purports to grant Mr. Mueller carte blanche to investigate and pursue criminal charges with anything he stumbles across while investigating, no matter how remote from the specific matter identified as the subject of" Rosenstein's order appointing Mueller. (emphasis in original).

This argument is couched in terms of Rosenstein's alleged non-compliance with DOJ's special prosecutor regulations, which Manafort's complaint concedes are "carefully crafted" and "carefully circumscribe[d]." Leave aside the fact that the regulations expressly state that they create no enforceable rights--an inconvenient fact the complaint acknowledges but then bizarrely dismisses as irrelevant. Also leave aside the fact that Rosenstein's appointment of Mueller was not actually based on those regulations, even though the appointment order does make those regulations applicable. The larger import of this claim is that his description of the regulations hints at the problem of carelessly crafted and uncircumscribed prosecutorial authority--characteristics that, at a constitutional level, were alleged in Morrison v. Olson to render the Watergate-era special prosecutor law unconstitutional.

But one searches the complaint in vain for a broad claim that Rosenstein's grant of authority to Mueller is unconstitutional. Aside from a passing reference to Justice Scalia's dissent in Morrison, the complaint does not claim that a special prosecutor--indeed, one who, like both Mueller and the special prosecutor in Morrison, enjoys "good cause" removal protection--is unconstitutional, either facially or as applied to this allegedly overbroad charge. A few scholars have made such arguments, a fact Manafort's lawyer presumably knew. And while the district court judge might not have accepted such an argument, an aggressive appeals panel might have been willing either to accept it or at least tee the question up for the Supreme Court. Perhaps more importantly, a constitutional argument would have made the legal splash that Manafort was possibly thinking about making in light of his curious initial decision not to simply seek the quashing of his own indictment.

What gives? One might just dismiss the complaint as an effort doomed from the start, as scholars have done here and here. Perhaps so. But perhaps Manafort's real hope is to persuade Rosenstein to avoid litigation over the issue by issuing an amended, and more limited, charge to Mueller that would exclude the conduct for which Manafort has been indicted--or maybe to hope for a new, non-recused, Attorney General who would take that step.

Thus, what we might have here is a middle path: a lawsuit that seeks to do more than simply quash Manafort's own indictment, and does so by way of a seemingly-technical argument about the government's compliance with its own regulations, but one that nevertheless hints at broader constitutional issues that advocates of a unitary executive theory of the Constitution (including perhaps a new Attorney General) might find attractive. The proper analogy for this lawsuit is thus neither the blunderbuss, all-guns-blazing attack nor the surgical strike. Instead, to mix metaphors, it's a low-probability bank shot in billiards. It's unlikely to succeed. But who knows? It worked for Paul Manafort's erstwhile boss.