Below is my column in the Hill newspaper on the filing by Paul Manafort challenging the scope of the Special Counsel investigation. Manafort’s filing of a civil action is quite telling in this circumstance. As a criminal defendant, he can challenge the basis for the charges. This seems like an effort to make a public case with little likelihood of legal success. However, the public tends not to be particularly sympathetic with accused felons complaining that they were arrested by the wrong cop. It is true that Manafort would likely not have been charged absent the Special Counsel investigation. However, that is like complaining about the weather in Washington.
Here is the column:
“Forget it, Jake. It’s Chinatown.” Those were the words from the iconic scene in “Chinatown” when detective Lawrence Walsh stops a grieving Jack Gittes, played by Jack Nicholson, after the death of his love interest. The point was that it is not about fairness. It is about special rules of the seedy and sinister world of Chinatown.
That same advice could be given to Paul Manafort, who just filed a lawsuit against special counsel Robert Mueller, Deputy Attorney General Rod Rosenstein and the Department of Justice. He is arguing that the charges against him have nothing to do with the original purpose of the special counsel investigation. He is right, but this is Washington.
Manafort is challenging the mandate given to Mueller by Rosenstein as “completely unmoored from the special counsel’s original jurisdiction.” If one were to read the Manafort indictment back on May 17, 2017 when Mueller was appointed, you could see his point. Mueller was appointed after President Trump fired then FBI Director James Comey who was in the midst of investigating Trump and his campaign for Russian collusion. The timing and context of the termination led many of us to support the appointment of a special counsel to guarantee an independent investigation to answer the rising concerns of the public.
Now fast forward five months to Oct. 27, 2017 when Mueller brought down the first indictments in the investigation. The indictment of Manafort and his former partner Richard Gates include 12 counts of conspiracy, money laundering, being an unregistered foreign agent, and failure to pay taxes. All of those crimes allegedly occurred before the campaign and focus on Manafort’s shady business ties.
Manafort is not claiming that the underlying acts are not crimes but that Mueller would not have found them if he stayed focused on Russian collusion. Again, he is probably right, but this is Washington, Paul. It is like complaining about the weather. The long-standing lament in Washington is “One day on the cover of Time, next day doing time.” When you rise above the crowd, everyone gets a long and close look. Manafort is one of those figures who looks much better from afar than close up.
The question for the court is less likely to be where these crimes are related to Russian collusion, but rather whether it really matters. Many of us noted that the Mueller mandate was especially broad. Rosenstein’s primary language is not the problem. He defined the scope of the investigation as “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
He also added that Mueller could investigate “any other matters within the scope of 28 C.F.R. § 600.4(a) — including perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” That is broad but not undefined. However, he then added eleven words that made that narrow construction irrelevant in allowing Mueller to investigate “any matters that arose or may arise directly from the investigation.” That is like confining commercial fishing to a 100 mile radius “unless any fish are spotted outside of the zone” — whether it is a foot or thousand miles.
Independent counsel investigations 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. The original mandate given to Robert Fiske and later Ken Starr was fairly specific and well-defined at the time of his appointment.
Fiske understood that he was confined to “investigate whether any individuals or entities have committed a violation of any federal criminal law relating in any way to President William Jefferson Clinton’s or Mrs. Hillary Rodham Clinton’s relationships with Madison Guaranty Savings and Loan Association, Whitewater Development Corporation, or Capital Management Services.” However, that mandate also included the right to investigate “any federal criminal law by any person or entity developed during the independent counsel’s investigation referred to above and connected with or arising out of that investigation.”
Starr would seek an expansion of his authority and receive that expansion from the judicial panel. The time and scope of the investigation led irate members of Congress to block the renewal of the independent counsel law. Such investigations in the future would be handled by a new independent counsel guideline. However, those investigations continued with the same killer catch-all provisions that made limitations virtually irrelevant.
For example, in 2003, Patrick Fitzgerald was appointed to investigate leaks that led to the public identification of former CIA officer Valerie Plame. His mandate would seem comfortably narrow given the very specific disclosure of this one CIA officer. However, the mandate included the “plenary” powers and “all the authority of the Attorney General.” The man who signed that sweeping appointment was James Comey.
Faced with challenges to these unlimited mandates, courts have deferred to the prosecutors and Congress in confining the scope of criminal investigations. For example, when Starr handed down indictments against James McDougal, Susan McDougal, and former Arkansas Gov. Jim Guy Tucker, they challenged his mandate. Even though none of the defendants were named in the original appointment, the court said that Starr had the authority to pursue them for crimes that were uncovered by his investigation. The court found that there was “no question” that the indictments “involved the subject matter” of the appointment.
Manafort can argue that, unlike the Whitewater case, his charges are not on the same planet, let alone the same continent. However, there was ample reason for Mueller to investigate Manafort’s finances to look for foreign influence in business arrangements preceding or during the election. He found crimes unrelated to the Russians but they are still properly alleged crimes.
Manafort insists that Mueller’s “appointment order purports to grant authority to the special counsel to expand the scope of his investigation to new matters without the consent of — indeed, without even consulting — any politically accountable officer of the United States.” However, Rosenstein retains the authority to limit that authority or seek the termination of Mueller. 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.
In the end, most people are not overwhelmed by accused criminals objecting that they were caught by the wrong cop. That does not mean that Manafort is without defenses to these allegations, but he should focus on the trial not the investigation. In other words, “Forget it, Paul. It’s Washington.”