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Paul Manafort Seeks Return to Constitution; Sues Mueller et al.

Jan. 3, 2018 (EIRNS)—Paul Manafort filed a civil suit on Wednesday against Rod Rosenstein, Robert Mueller, and the United States Department of Justice. The suit was filed in the United States District Court for the District of Columbia, where Manafort’s indictment by Mueller is also pending. It alleges that Rosenstein, Mueller, et al. have abused the Justice Department regulations governing the appointment of special counsels and their authority to investigate and criminally charge in his case, and seeks to have the actions of Mueller and Rosenstein declared ultra vires, or, without legal authority.

Although the Special Counsel statute survived a 1988 constitutional challenge in Morrison v. Olson, most legal scholars believe that Justice Antonin Scalia’s lone dissent in that case was constitutionally correct. Scalia argued that the law violated the separation of powers, which vests exclusive power to prosecute in the executive branch, in the Presidency, not some independent Justice Department, Special Counsel, or Congressional authority. Should the President abuse his powers, the Congress can impeach the President or the voters can defeat him, but, Scalia argues, Article II vests exclusive prosecutorial power in the President. Otherwise, the statute effectively created an unconstitutional fourth branch of government with no political accountability and unbridled prosecutorial power threatening the very foundations of the Republic, Scalia correctly warned.

According to Scalia’s dissent, the statute, as then operating, effectively compelled investigations that would otherwise not be opened and prosecutions that would otherwise not be brought. It encumbered the functioning of a President’s staff and enfeebled his confrontations with Congress. Unlike other essential issues which come before the Court "clad in sheep’s clothing,... this wolf comes as a wolf," Scalia famously wrote. In 1999, the Clinton Administration refused to renew the statute, citing Scalia’s dissent as constitutionally controlling authority. The Justice Department then adopted the present independent counsel regulation for cases in which the Department has a clear conflict of interest. The regulation requires a clear and specific statement of the offense to be investigated, while also allowing for investigation of offenses which might thwart that investigation, such as false statements, perjury, and obstruction of justice. In this case, the offense specified by Deputy Attorney General Rosenstein is links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.

Manafort correctly points out that none of the charges against him involve the investigation mandated by the regulation governing the scope of Mueller’s investigative authority. Instead, they concern events from 2005 through 2014 involving Manafort’s lobbying activities in Ukraine, payment of taxes on funds received from those activities, and filing of disclosures concerning those activities. These same activities, according to Manafort’s complaint, were voluntarily disclosed by Manafort to the Department of Justice in an interview in 2014 concerning his Ukraine and Cyprus activities, an investigation which Department of Justice closed following Manafort’s interview. However the court deals with this as an immediate matter, Manafort most certainly has a valid constitutional claim concerning the "wolf that comes as a wolf."