WASHINGTON (CN) – Abruptly shifting gears in their defense to conspiracy charges, an attorney for former Trump campaign manager Paul Manafort demanded a harness Wednesday on the investigative power of special prosecutor Robert Mueller.
The argument came at a hearing this morning in the civil analogue to Manafort’s criminal prosecution.
Pivoting from a previous effort to have the indictment dismissed, Manafort’s attorney Kevin Downing said they are taking aim instead now at a provision of the May 2017 appointment order, in which Acting Attorney General Rod Rosenstein authorized Mueller to investigate “any matters that arose or may arise directly from the investigation.”
Manafort’s latest challenge follows disclosure by the government Tuesday of an Aug. 2, 2017, memo in which Rosenstein confirmed that the allegations against Manafort fall within the scope of Mueller’s investigation and the May appointment order.
This scope, according to the now-public memo, includes looking at whether Manafort colluded with Russian government officials in its effort to interfere with the 2016 U.S. presidential election, along with the allegations contained in the existing indictments against him concerning crimes that arose from payments he received for the work he did on behalf of the Ukrainian government.
Mueller’s team attached the memo in an April 2 brief that opposes Manafort’s motion to dismiss his criminal indictment.
Wednesday’s proceedings meanwhile stem from the challenge of Mueller’s authority that Manafort brought in a January civil suit.
Though U.S. District Judge Amy Berman Jackson broached the issue of the government’s April 2 brief at Wednesday’s proceedings, neither Downing nor attorneys for the Justice Department took the opportunity to address the matter directly.
Deflecting, Downing said he was unaware the court would go there now.
“It’s a little bit the elephant in the room,” Jackson responded.
Justice Department attorney Daniel Schwei urged Jackson meanwhile to rely on D.C. Circuit precedent in Deaver v. Seymour, which says civil suits cannot be used to interfere with criminal proceedings.
Decades before Mueller’s indictment, former President Ronald Reagan’s adviser Mike Deaver filed suit to halt an investigation by independent counsel Whitney North Seymour Jr.
The challenge failed, however, and Deaver was convicted of lying under oath to Congress. Siding with the government in this case, the D.C. Circuit held that the rules governing criminal procedure provide adequate remedies for defendants to challenge the charges against them.
Justice Department attorneys made a similar argument this past February in a motion to dismiss Manafort’s suit.
Downing faced an uphill battle Wednesday morning trying to persuade Jackson that Manafort can challenge the appointment order under the Administrative Procedure Act, which governs how federal administrative agencies propose and institute regulations.
Pressing the lawyer repeatedly on the issue, Jackson questioned how Manafort could bring a challenge to future charges Mueller might bring when such harm has not yet crystallized.
Downing replied that the Federal Rules of Criminal Procedure are insufficient for Manafort to contend with the waves of indictments brought against him.
“Chasing indictment after indictment is not an adequate remedy,” Downing said.
“It’s not hypothetical,” Downing added. “It’s an ongoing harm.”
But Jackson noted several times that the special counsel regulations specifically state that they do not confer enforceable rights in criminal proceedings, drawing into question whether they are even reviewable by a court.
“I don’t understand what’s left of your case,” Jackson said.
When pressed more than once by Jackson to cite a case where the Administrative Procedure Act was used to stop a prosecution, Downing could not come up with an example.
Justice Department attorney Schwei said it would be “dangerous” to let Manafort’s case against Mueller and Rosenstein proceed, saying it could raise separation-of-powers questions.
Jackson did not say when she would issue a ruling on the matter, but said she has taken it under advisement.