WASHINGTON (CN) – Challenging the appointment of special counsel Robert Mueller, a Russian firm asked a federal judge Monday to dismiss its conspiracy indictment.
Represented by Reed Smith attorney Eric Dubelier, the oligarch-owned Concord Management and Consulting LLC says the Department of Justice regulations governing Mueller violate separation-of-powers principles.
“Without a proper appointment and express congressional authorization, neither the attorney general nor his subordinates have the inherent authority to empower a private attorney to investigate and prosecute anyone, regardless of citizenship, when he or she deems it is expedient to do so under jurisdictional ground rules that he or she alone sets down,” the 63-page motion says.
Concord’s tactic echoes one that proved unsuccessful previously for Paul Manafort, the indicted former campaign manager of President Donald Trump. Both in his criminal case and in a civil lawsuit he brought against the special counsel, Manafort challenged the scope of Mueller’s authority.
U.S. District Judge Amy Berman Jackson rejected Manafort’s arguments, however, on the basis that Justice Department regulations “do not create any substantive rights for the benefit of individuals under investigation.”
Unlike Manafort, Concord is challenging the constitutionality rather than the breadth of Mueller’s appointment, along with the legality of the Justice Department’s special counsel regulations.
Concord’s case is pending in Washington as well, but U.S. District Dabney Friedrich, a Trump appointee, is presiding.
In its motion, Concord seized on past arguments by the special counsel’s team that the DOJ regulations “are not binding and cannot be enforced in court.”
“If that is correct, then there is no limitation at all on the scope of an investigation and prosecution the deputy attorney general can delegate to a special counsel to pursue,” the motion says. “And the byproduct is a powerful prosecutor, unguided, unconstrained, unfettered, and, indeed, foreign to this nation’s three-branch constitutional order.”
Dubelier also took issue in a footnote with Jackson’s ruling that private parties can’t enforce the Justice Department regulations in court. He said this conclusion contravenes from controlling precedent and misses “the essential role the regulations play — in the absence of congressional action — in ensuring the special counsel’s investigation is subject to at least some constraints, however minimal.”
That Manafort has not directly challenged the appointments clause in either his Virginia or Washington, D.C., case is mentioned by Dubelier as wel.
Dubelier says Mueller’s appointment is unconstitutional because the president did not appoint him, nor did the Senate confirm him as a principal officer. As for Mueller’s appointment by Deputy Attorney General Rod Rosenstein, Dubelier says Rosenstein “does not and cannot act as a proxy for an unconstitutional delegation of the federal government’s prosecutorial powers.”
Concord says the appointment order fails to explain why a criminal investigation was necessary or why Mueller is authorized to pursue the FBI’s counterintelligence investigation of possible links between the Trump campaign and Russia.
Dubelier says the indictment against his client fails to allege that it’s part of the Russian government or that it coordinated with President Trump’s then-campaign.
“Indeed, supposed Russian social media involvement in the alleged Russian government interference that was the target of the investigation was publicly known long before — and thus could not have arisen directly from — the special counsel’s investigation,” the motion says. “Surely, Concord cannot be indicted under an order that does not purport to reach it and the Indictment should be dismissed on this ground, too.”
Concord is owned by Russian oligarch and Putin confidant Yevgeny Prigozhin. The DOJ regulations in question were issued in 1999 by then-Attorney General Janet Reno.