Mueller Wasn’t Appointed Pursuant to the DOJ Regs (and other assorted flaws in the Manafort suit)

Paul Manafort filed a two-count suit yesterday against Acting Attorney General Rod Rosenstein and Special Counsel Robert Mueller. Count Two challenges Special Counsel Mueller’s investigation of matters involving Manafort, in particular. Count One is a more fundamental and comprehensive challenge to the scope of the authority that Rosenstein conferred upon Mueller in the first instance.

As Steve Vladeck explains, the proper place for such a challenge is, if anywhere, in the criminal proceeding itself. Even if the “equitable restraint” doctrine were no bar, however, there are other reasons, as well, that the suit almost certainly will not bear fruit, including, most importantly, that the claim against Rosenstein is based upon a mistaken premise that he appointed Mueller pursuant to the DOJ “Special Counsel” regulations.

Count Two. Just a brief word here on the second count. The gist of the allegation is that, when it comes to Manafort, in particular, and the charges against him, Mueller has acted in excess of the authority Rosenstein conferred upon him.

Part (b) of Rosenstein’s May 17th appointment letter–in effect, a contract with Mueller–expressly authorizes Mueller to “conduct the investigation confirmed by then-FBI Director James S. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).”

Manafort’s complaint alleges that Mueller exceeded his authority under the boldfaced subsection (b)(ii) when he investigated conduct–and charged Manafort for alleged offenses–that predated the 2016 Trump campaign. Those pre-2016 matters, says the complaint, could not have “arise[n] directly from” Mueller’s investigation of Russia/Trump Campaign links in the 2016 election, because they were matters that “DOJ must have been aware of for nearly a decade” before the Mueller investigation began. Manafort alleges, in particular, that as far back as 2007, “prominent news outlets” had been reporting allegations of shady dealings involving Manafort’s Ukraine-related consulting activities, and that in July 2014, “Mr. Manafort voluntarily met with DOJ prosecutors and FBI agents to discuss his offshore political consulting activities,” during which “Mr. Manafort provided a detailed explanation of his activities in Ukraine, including his frequent contact with a number of previous U.S. Ambassadors in Kiev and his efforts to further U.S. objectives in Ukraine on their behalf,” as well as “his offshore banking activity in Cyprus.”

Best I can tell, this is simply a non sequitur. The fact that news outlets had previously speculated about Manafort’s Ukraine activities, and that Manafort discussed them with some FBI agents once in 2014, does not begin to demonstrate that evidence about Manafort’s dealings with Ukraine did not “arise . . . directly” from the Special Counsel’s probe into ties between Russia and the Trump campaign. The scope of the Rosenstein delegation does not, suffice it to say, exclude matters about which there were rumors before the investigation (or the 2016 campaign) began.

Moreover, Acting Attorney General Rosenstein has concluded that those matters did arise directly from the principal investigation, and Manafort hasn’t offered any basis for concluding that Rosenstein is wrong about that. Nor is it obvious that Manafort is a proper party to complain about Mueller’s compliance with the “arising from” terms of the Special Council’s appointment. If the head of an agency delegates certain investigative authority to an inferior officer, and is himself confident that the latter has been faithful to the terms of the assignment, where does a third party get standing or a cause of action to complain, when the investigatory authority in question (i.e, about Manafort’s compliance with criminal laws in connection with the Ukraine activities) is well within the authority of the delegating officer (the AG) to begin with?

Count One. The first count of the complaint–against Rosenstein–is a more fundamental attack on the scope of the subsection (b)(ii) authority that the Acting AG conferred upon Mueller in the first instance, to investigate “any matters that arose or may arise directly from the investigation” of the Russia/Trump Campaign ties.

Manafort’s argument is that in giving Mueller such authority, Rosenstein went beyond what the DOJ Special Counsel regulation–in particular, 28 U.S.C. 600.4(a)–allows. Subsection 600.4(a) provides:

Original jurisdiction. The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.

Manafort argues, in effect, that the bolded sentence requires the (Acting) AG to limit the scope of the Special Counsel’s jurisdiction to matters that are “specific[ally]” described in the delegation–and that therefore a general “catch-all” jurisdiction, such as “any matters that arose or may arise directly from the investigation“–is impermissible. Indeed, continues the complaint, the regulation specifically contemplates, in subsection 600.4(b), that when such “new matters” arise in the course of an investigation, the Special Counsel must return to the AG to obtain specific additional jurisdiction to investigate them. Subsection 600.4(b) provides:

Additional jurisdiction. If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.

It is not at all obvious that Manafort’s reading of section 600.4 is correct–i.e., that it does not authorize the Attorney General to include a catch-all “any matters that . . . may arise directly from the investigation authorization as part of the “specific factual statement of the matter to be investigated, as Rosenstein did here.

Nor is it clear, for that matter, that Mueller did not comply with the terms of subsection 600.4(b) before he expanded the investigation to Manifort’s Ukraine-related activities. [UPDATED TO ADD:  After all, Rosenstein’s appointment letter provided that Section 600.4(b) is to be “applicable to the Special Counsel,” and that section requires Mueller to consult with the AG and obtain the AG’s go-ahead when “additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned.”  And if Rosenstein’s recent testimony is any indication, it is far more likely that Mueller did consult with Rosenstein and obtain his approval to include such matters in the investigation: “I know what he’s doing. I’m properly exercising my oversight responsibilities, and so I can assure you that the special counsel is conducting himself consistently with our understanding about the scope of his investigation. . . . [W]e’ve had ongoing discussion about exactly what is within the scope of his investigation. And, to the extent there was any ambiguity about it, he’s received my permission to include those matters within his investigation.”

Even if Manifort were correct, however, that Rosenstein did not comply with section 600.4, there’d be at least two major problems with this argument.

First, the regulations themselves specifically preclude such a complaint, in a section entitled “No creation of rights.” Section 600.10 provides that “[t]he regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.” Thus, even if Rosenstein had in some sense violated section 600.4, Manafort has no basis to complain about it.

Second, and more fundamentally, the predicate of the argument is simply mistaken. As I explained here back in August, Rosenstein almost certainly did not appoint Mueller pursuant to section 600.4–or pursuant to the Special Counsel regulations at all. In his appointment order, Rosenstein did not say that he was appointing Mueller pursuant to, or “under,” the regulations. Nor did he cite the provision of the regulations, Section 600.1, that governs the appointment of a Special Counsel from outside the Department. Instead, he wrote that he was acting “[b]y virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C. §§ 509, 510, and 515, in order to discharge my responsibility to provide supervision and management of the Department of Justice.”(In particular, section 515 provides that “any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct.”)

That is to say, Rosenstein relied only upon statutory, not regulatory, authorities in making his appointment of Mueller–the same authorities that gave the Attorney General the authority “to appoint subordinate officers” from outside DOJ (namely, Special Counsels Cox and Jaworski) “to assist him in the discharge of his duties” involving the Watergate investigations and prosecutions. U.S. v. Nixon, 418 U.S. at 694.  [Clarification:  To be sure, in 1973 the Attorney General did so by promulgating a “regulation” in the Federal Register specifically concerning the Watergate investigation, whereas Rosenstein acted by promulgating a letter.  That difference in form is of no moment, however (except perhaps insofar as it effects what the AG would have to do to rescind the previous appointment):  The important point is that each of the three actions–the 1973 creation of the Watergate-related Special Counsel, the 1999 general, “framework” DOJ Special Counsel regs, and the 2017 creation of the Russia/Trump Campaign Special Counsel–were directly authorized by the same set of statutes, especially section 515.]

As I wrote back in August, Rosenstein likely did so–i.e., made the appointment outside the aegis of the DOJ regulations–because Section 600.1 appears to provide for appointment of a Special Counsel only for a criminal investigation, whereas the Russia investigation is principally, or at least in part, a counterintelligence investigation, and the Special Counsel regulations do not speak to hiring outside counsel to supervise such an investigation.*

Accordingly, even assuming the appointment authority under Section 600.4 is limited in the way Manafort alleges, and even if Rosenstein went beyond those limits–neither of which is clear–the Acting AG’s statutory authorities are not so limited, and it was pursuant to those authorities that Rosenstein acted when he conferred upon Mueller the power to investigate “any matters that arose or may arise directly from the investigation” of the Russia/Trump Campaign ties.**

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* Rosenstein’s appointment expressly authorizes Mueller to “conduct the investigation confirmed by then-FBI Director James S. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.” The FBI investigation that Comey “confirmed” in his March testimony, in turn–the investigation Mueller was appointed to conduct–was this:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

As the last sentence of that passage indicates, Mueller’s investigation is, in part, a criminal investigation. But it is also a counterintelligence investigation, and the DOJ regs do not authorize (not expressly, at least) appointment of a Special Counsel for a counterintelligence investigation.

** To be sure, Rosenstein specified that Sections 600.4 through 600.10 of the regulations “are applicable to the Special Counsel.” The reference to Section 600.4 being applicable “to the Special Counsel,” however, surely was not intended to limit Rosenstein’s own scope of appointment authority; it was, instead, designed to further clarify the scope of Mueller’s authority (600.4(a)), and to specify what Mueller is to do if, “in the course of his . . . investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation” (600.4)(b)) or “determines that administrative remedies, civil sanctions or other governmental action outside the criminal justice system might be appropriate” (600.4(c)). 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).