Thursday, January 4th 2018 (WASHINGTON) – For months allies of President Donald Trump have sought to discredit the special counsel investigation tasked with looking into possible collusion between the Trump campaign and Russian government. On Wednesday, former Trump associate Paul Manafort filed a legal complaint in the hopes of declaring Robert Mueller’s probe “invalid, arbitrary and capricious,” arguing Mueller and the Department of Justice acted outside the scope of their legal authority.
While the lawsuit seeks to bring a heated political issue into the legal domain, many experts have raised doubts about the merits of the case, saying it is meant to provide political fodder to the president’s allies and offer credibility to Trump’s own claims that the “Deep State Justice Dept.” is targeting his presidency.
At the center of Manafort’s case is the May 17 order authorizing the appointment of a special counsel. Deputy Attorney General Rod Rosenstein issued the order appointing Special Counsel Robert Mueller to investigate “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” that investigation.
According to Manafort’s lawyers, the investigation of the former Trump campaign chairman, “is completely unmoored from the Special Counsel’s original jurisdiction” and has instead “focused on unrelated, decade-old business dealings—specifically, Ukraine political campaign consulting activities of Mr. Manafort.”
These actions “in excess” of the special counsel’s jurisdiction, the complaint says, resulted in Manafort’s indictment on October 27 on nine separate counts including conspiracy against the United States, money laundering and failure to file as a foreign agent. Manafort pleaded not guilty to the charges, many of which are related to activities that took place years before the 2016 election.
Manafort’s lawyers, Kevin Downing, Thomas Zehnle and Frank Cihlar, not only hold Mueller responsible for allegedly overstepping his jurisdiction, but they argue he should have never received such a broad-ranging investigative authority in the first place.
The original order “exceeds the scope of Mr. Rosenstein’s authority to appoint special counsel,” the lawsuit states, and “in effect purports to grant Mr. Mueller carte blanche to investigate and pursue criminal charges in connection with anything he stumbles across while investigating, no matter how remote from the specific matter identified as the subject of the Appointment Order.”
The complaint continues that the appointment order is “arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law.” Manafort’s lawyers then claim that Mueller was allowed to expand the scope of his investigation into matters “with no connection whatsoever” to Donald Trump or the 2016 election, and do so “without the consent of—indeed, without even consulting—any politically accountable officer of the United States.”
The accusation largely dismisses the oversight role played by Deputy Attorney General Rosenstein, who recently appeared at a special counsel oversight hearing in Congress.
As a result of the alleged overreach by the Department of Justice and special counsel, Manafort’s lawyers have demanded the legal actions against their client be “set aside” and that the order creating the special counsel be “set aside” and declared “invalid.”
The Office of the Special Counsel declined to comment on the lawsuit when reached by Sinclair Broadcast Group.
The Department of Justice, a named defendant in Manafort’s suit, called the lawsuit “frivolous” adding, “but the defendant is entitled to file whatever he wants.” On Thursday, the Justice Department declined to provide further comment.
A number of legal experts say Manafort’s odds of winning the suit are slim, and he likely won’t be successful in getting a judge to “set aside” the charges against him or overturn the appointment of the special counsel.
“There isn’t a snowball’s chance in hell that a judge is going to reject DOJ’s interpretation here of the scope of permissible authority that can be delegated to Mueller,” said national security lawyer, Bradley Moss.
According to Austin Evers, legal analyst and executive director of the non-partisan American Oversight, “Manafort’s suit is going nowhere.” The reason, Evers argues, is that the law creating the tool of a special counsel, allows that investigator to look into matters beyond the original scope or even expand the scope of the investigation, as long as it is done under the oversight of the attorney general, or in this case the acting attorney general, Rod Rosenstein.
When Rosenstein appeared before the House Judiciary Committee in December, Republican Rep. Lamar Smith of Texas voiced his concern that “the special counsel may be casting too wide of a net, that he is trying to catch all the fish in the ocean.”
Pressed on whether he had authorized an “expansion” of the scope of special counsel investigation, Rosenstein stated, “I can assure you that the special counsel is conducting himself consistent with our understanding about the scope of his investigation.” He further explained that he had issued “a clarification” to Mueller regarding the scope of the investigation, “but he understands that this is a special counsel. It’s not an independent counsel.”
It’s an important distinction, legal scholar Jonathan Turley explained in an opinion piece. “Independent counsels have been previously challenged for this type of mission creep, particularly the Whitewater investigation that began with a shady real estate deal in Arkansas and ended with a stained blue dress in Washington.”
That is a key part of why Congress allowed the independent counsel statute to lapse in 1999 after the Clinton impeachment and created the special counsel. The special counsel, which has been used three times since 1999, was designed specifically so that a politically accountable U.S. official, rather than an independent judicial panel, would have oversight authority to expand or terminate an investigation.
Turley said he agreed with Manafort that the charges against him appear to be beyond the original purpose of the special counsel investigation. “He is right, but this is Washington,” he noted. “In other words, Manafort’s chances of winning in this lawsuit are as remote as Steve Bannon being invited to the next Trump family vacation at Mar-A-Lago.”
Perhaps more credible than Manafort’s legal case, which a number of lawyers are calling “a publicity stunt,” is the political case.
Brandon Rottinghaus, political scientist at the University of Houston and expert in presidential scandals, explained that even if the suit is thrown out, it will still become “political fodder” for Republicans.
“This essentially becomes one more peg that supporters of the president use to say, ‘this is the unwieldy state of the government that is out to get him,’” Rottinghaus said. “The actual filing of this lawsuit provides more cover for that kind of political rhetoric.”
A number of Republicans in Congress have opened investigations that directly call into question the legitimacy and fairness of the Department of Justice, pointing to allegations of political bias on Mueller’s team, or the Justice Department’s handling of the investigation into Hillary Clinton.
Rep. Matt Gaetz recently called on his colleagues in Congress to Congress “to join me in firing Bob Mueller,” claiming that he was leading a “corrupt investigation.” Other Republicans, including the chairman of the Judiciary Committee, Rep. Bob Goodlatte, have called for a second special counsel to review the work and conduct of the first.
Given the climate of distrust around the Department of Justice, Rottinghaus noted that officials are likely taking Manafort’s lawsuit seriously, despite calling it “frivolous.”
If the Manafort case proceeds, he said, “I think there would definitely be a chilling effect of this investigation as well as further investigations that come under the auspices of DOJ in the future.”
The other likely outcome, he added, “is a continued erosion of the credibility and support of the Department of Justice as an investigative arm of government that has been on the table since this scandal broke.”
Democratic lawmakers and some Republicans have stepped up to defend Robert Mueller, introducing legislation to prevent Trump from firing the special counsel. It is unclear what steps could be taken if Manafort’s lawsuit were successful in nullifying the order creating that counsel.
Rottinghaus concluded that in the history of presidential scandals, the greatest problems arise not from what a special investigator is initially tasked with investigating, but where they end up. That creates a big incentive to try anything to limit the scope of the investigation, which the White House and its allies have consistently tried to do.
“The Trump White House no doubt understands that the more room to run the special counsel has, the more likely it is they’re going to find something that they’ve done wrong,” Rottinghaus concluded. “So for the White House, there is political value in trying to stem the investigation.”
