Trusting the bomb cyclone of winter weather headed for the East Coast to protect both filers and filing, the civil suit filed in D.C. federal court this week by Paul Manafort’s lawyers skates on thin legal ice. Manafort — the indicted former Trump campaign chair — wants Special Counsel Robert Mueller and the Department of Justice enjoined from further pursuing the criminal charges pending against him for money laundering and failing to register as a foreign agent.
The suit is based on this pile of snow: (1) Department of Justice regulations limit a special counsel’s authority to the subject matter identified at the start of the investigation, absent later permission to expand it; (2) DOJ authorized Mueller to investigate ties between Russia and the Trump presidential campaign; (3) the indictment of Manafort makes no meaningful reference to the Trump campaign and involves a number of events that pre-date it; and (4) the DOJ grant of authority to Mueller to also investigate matters that “arose or may arise directly from the investigation” of Trump campaign/Russia ties is so open-ended as to be inherently void. Res ipsa absurdity, Manafort should walk free.
Three problems: (1) “Directly from” is not a vague or open-ended phrase; (2) Mueller could address the concerns about unrelatedness by supplementing the indictment to show how the existing charges do in fact connect Russians to Manafort in his role as campaign manager; and (3) if the existing charges truly cannot legally be pursued, that argument would be better made in the existing criminal case. Courts disfavor multiple actions in different forums (civil v. criminal court) over the same facts at the same time.
So are Manafort’s attorneys simply trying to force Mueller to show his hand earlier than he would like? Or are they using the civil suit as a means to get around the gag order in the criminal case? Or are they so desperate to get a patently guilty client off the hook that they are willing to bet against the legal odds? Perhaps all of the above?
I don’t blame them for trying. Turning carbon into diamond is what lawyers often are called upon to do within the bounds of the facts and the law. Manafort’s lawyers don’t have the facts on their side, so creatively weaving the Administrative Procedure Act into a workable cause of action for their client is the next best option, if not a good one.
While a conscientious judge will try to block out from her decision-making what scrolls across the ticker on the nightly news, it cannot help Manafort’s case that he is aligned with an administration that has made vigorously attacking American institutions — including an independent judiciary and federal law enforcement — an art form. In short, where a call otherwise might be extremely close, don’t expect a judge to give Manafort’s legal theories the benefit of the doubt.
Mr. Mueller, the next step is yours. Might I suggest you moot this civil suit by filing something that explains how the years of money laundering and under-reported representation of Ukrainian interests tie to your charge to investigate connections between Russians and the Trump campaign? We know you know.
It should not be long before law schools begin devoting semester-long courses to legal issues arising from the Trump campaign and presidency. I suspect this civil suit will turn out to be but a footnote — not the magic key that will unlock Paul Manafort’s cell.