The Russia Connection

Manafort v. DOJ: The Wolf That Didn’t Bark

By Josh Blackman
Wednesday, January 3, 2018, 9:00 PM

Paul Manafort’s suit against the Department of Justice, Rod Rosenstein, and Robert Mueller, is perplexing for (at least) three reasons. First, even if the suit is successful, and the Court sets aside all actions taken by Muller, nothing would prevent the Department of Justice from appointing another special counsel who could simply follow the exact same prosecution strategy. In other words, Manafort’s suit would not remove from collective consciousness the evidence unearthed by Mueller’s investigation. It would not be difficult for him to be indicted again.

Second, why did Manafort lodge these arguments as part of a collateral attack on his indictment, rather than directly as a motion to dismiss the indictments? Under Younger abstention, a federal civil rights action will usually be put on hold while the criminal matter is ongoing in state court. Because the criminal prosecution here is in federal court, Younger’s federalism concerns are somewhat inapt, but the guiding principles remain: defendants should challenge the legality of the indictment in the criminal proceeding through a motion to dismiss. This is especially appropriate where a criminal trial has not yet even begun. Finally, this parallel action runs the risk of the district court blessing the basis Mueller’s investigation, which would make it much harder to challenge it on appeal.

Third, there is a wolf that didn’t bark: Manafort did not include a challenge to the Special Counsel’s appointment under the Constitution’s Appointments Clause, as a means to overturn Morrison v. Olson. (This was the basis of Ted Olson’s motion to quash the subpoenas issued by Alexia Morrison.) Manafort cited Justice Scalia's Morrison dissent only in passing. I've written that the under which Mueller was appointed are unconstitutional. Manafort does not even suggest this is a possibility. To the contrary, he refers to the regulations as “carefully crafted” and “binding.” Finally, Manafort makes no reference to the most vulnerable aspect of the regulations: the restrictions on the ability of the Attorney General to remove the Special Counsel. This initial complaint undermines a frontal assault on Morrison.

Unless there is an amended complaint forthcoming, this suit is less a wolf dressed as a sheep, and more a sheep dressed as a wolf.