ALEXANDRIA, Va. (CN) – Former Trump campaign chairman Paul Manafort on Tuesday made another attempt to have criminal charges brought against him by Special Counsel Robert Mueller thrown out by a federal court -- but this time the request was filed in Virginia, where he is scheduled to stand trial in July.
In a 40-page filing in the federal court in Alexandria, Virginia, Manafort attorneys Kevin Downing and Thomas Zehnle, make similar arguments to those they put forward just weeks ago in the federal court in Washington, D.C.
Manafort’s prosecution stems from overbroad powers granted to Mueller when he was hired, ostensibly, to probe Russian meddling in the 2016 presidential election, his attorneys say.
According to Downing and Zehnle, the granting of those powers “exceeds those limits on the attorney general and acting attorney general’s authority.”
Repeating claims that Mueller has been issued a “blank check” by Deputy Attorney General Rod Rosenstein to conduct the investigation, the attorneys suggest the superseding indictment against Manafort alleging bank and tax fraud, as well as making false statements to authorities, “does not focus in the slightest on alleged coordination between the Russian government and the Trump campaign.”
“It focuses instead on [his] consulting work in Ukraine, which ended in 2014, years before the Trump campaign was even launched, as well as Mr. Manafort’s tax filings from 2006 to 2014 and his personal finances, which likewise have no connection to coordination between the Russian government and the Trump campaign,” the motion says.
Because Rosenstein “lacked power to grant special counsel jurisdiction,” Manafort’s attorneys argue, Mueller lacks even the basic authority to bring the claims against their client.
If Mueller wishes to pursue matters which arise during the investigation not tied to the Russia meddling probe, special counsel “must consult the acting attorney general and obtain additional jurisdiction,” the complaint states.
Special counsel regulations handed down by the Justice Department in 1999 do not give the acting attorney general authority to grant expansive ex ante jurisdiction, they argue, which includes anything that might be uncovered during the probe which is not directly tied to possible Russians meddle in the 2016 presidential election.
“Yet [Mueller’s] appointment order purports to do just that … it eliminates the requirement that a politically accountable officer approve expansions to the scope of the investigation and with it the political accountability the Special Counsel Regulations were designed to ensure,” the motion states.
Without the appropriate jurisdiction, dismissal is warranted, the attorneys argue.
“It is well established that when the attorney who initiated a criminal proceeding is without authorization to appear on behalf of the United States, jurisdiction is lacking,” Downing writes.
The attorneys cite the “disastrous” former Ethics in Government Act of 1978 to support their argument. The legislation, they argue allowed for “independent counsel investigations to become roving commissions, uncontrolled by politically accountable officials or competing priorities.”
When the Justice Department agreed to modify the legislation – requiring further jurisdiction for any other matter that might arise during the course of an investigation – a balance was struck “between independence and accountability.”
But that balance hasn’t been achieved in Manafort’s case, Downing says.
Special counsel regulations provide special counsel the original jurisdiction to investigate or prosecute obstruction and other efforts to impede an investigation unlawfully, but Rosenstein’s agreement order to Mueller to investigate “any” additional matters that “arose or may arise” is an overreach.
Citing U.S. v. Nixon, Downing reminds the court that the Supreme Court of the United States rejected the former president’s challenge to a special prosecutor subpoena. While the court noted it was “theoretically possible for the attorney general to amend or revoke the regulation defining a special prosecutor’s authority so as to deprive him or her of subpoena power,” where that regulation is enforced, the executive branch is bound to enforce it.
The same principle applied in U.S. v Providence Journal, a case where a district court appointed a private attorney to prosecute a contempt motion because the U.S. attorney was conflicted. A writ of certiorari was filed but regulations stipulate no person can represent the Supreme Court except the Solicitor General or a designee.
The solicitor general never authorized the writ and the Supreme Court dismissed it, holding that a proper representative with proper jurisdiction was lacking.
“That the district court purported to appoint the special prosecutor was irrelevant, because the special prosecutor lacked actual authority under law, dismissal was required,” Downing writes.
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