Of all the legal stars working for Robert Mueller, the special counsel prosecuting crimes related to Russian interference in the presidential election, perhaps none shines brighter than Michael Dreeben. The attorney, a longtime deputy in the Department of Justice’s Office of the Solicitor General, has argued more than 100 cases before the Supreme Court and is said to know the federal criminal code inside and out. I’ve seen him argue before the justices and he’s a beast — as unflappable an advocate as he is a legal thinker on his feet. If a defendant thinks the government may have gone too far with a federal prosecution, Dreeben is the lawyer you would call. More often than not, he’ll win.
Paul Manafort, Donald Trump’s former campaign chairman, has decided that he wants to fight Mueller in court — and by extension Dreeben. Not through the regular channel, which is before the judge who is handling his federal prosecution for money laundering, conspiracy, and failure to register as a foreign agent of Ukraine. That case has been ongoing since October and has already resulted in a series of pretrial disputes that, more or less, have found Manafort on the losing end; he remains in home confinement, has been ordered to forfeit $10 million in assets, and was embarrassed by the disclosure that he helped edit a pro-Ukraine op-ed while under house arrest. None of this went over well with Mueller, whose team has insisted that the political operative remains a flight risk and must continue wearing an ankle monitor.
So if you’re Manafort, what do you do to challenge all this abusive overreach? Rather than seek a dismissal of your indictment, which is a common pretrial tactic for deep-pocketed defendants, Manafort decided to sue Mueller. And Deputy Attorney General Rod Rosenstein, who appointed him. And why not, the Department of Justice itself, which promulgated the regulations that empowered Rosenstein to appoint Mueller.
The short of it: Rosenstein’s appointing order is overbroad and thus illegal because it gives Mueller the power to go on a fishing expedition against anything and anybody he wants. “Indeed, the Appointment Order in effect purports to grant Mr. Mueller carte blanche to investigate and pursue criminal charges in connection with anything he stumbles across while investigating, no matter how remote from the specific matter identified as the subject of the Appointment Order,” reads Manafort’s lawsuit. It seeks to invalidate as ultra vires both the appointment order and “all actions” Mueller has taken against Trump’s former campaign chairman.
It’s an odd strategy that, for my money, is likely to result in more embarrassment for Manafort. For one, he filed this new case in the same Washington court he’s being prosecuted in, the federal court in the District of Columbia, where the case has been randomly assigned to a judge. But Manafort is already before a judge, Judge Amy Berman Jackson, who could very well decide that the new case is related to the current prosecution and thus handle both matters concurrently. If she does that, she may invariably ask Manafort’s lawyers why they’re following this separate track behind her back, expending more court resources and causing inconvenience for her and the federal government. That’s only the procedural side.
There’s also the legal side, and here’s where Mueller’s best-kept secret, Dreeben, has likely already done all his homework and is ready to offer up whatever research he has done to combat spurious challenges to his boss’s authority. The thrust of Manafort’s argument is that Mueller has no business sticking his nose in any of the pre-Trump campaign work he did with Ukraine, which has nothing to do with the special counsel’s mandate to investigate criminal activity stemming from Russia’s role in the election. “The Special Counsel has paid particular attention to the involvement of Mr. Manafort’s company in a lobbying campaign that ended in 2014, Mr. Manafort’s bank accounts and tax filings through 2014, and the personal expenditures Mr. Manafort allegedly made using funds earned from his political consulting work,” reads the complaint, dramatic emphasis in the original.
Tough luck, Manafort. For better or for worse, one of the features of criminal prosecutions is that anything investigators uncover during the course of their work is fair game for further investigation. And Manafort must be kidding himself if he thinks that his pro-Ukraine lobbying work, and later work for the Trump campaign for free, is untethered from Russia’s larger geopolitical aspirations. There’s a lot we don’t know about the case Mueller is building against Manafort, but even assuming that what the special counsel has so far is beyond his authority, there’s nothing stopping him from handing off the case to another federal prosecutor who may then pick up where he left off.
“The lawsuit is frivolous but the defendant is entitled to file what he wants,” a DOJ spokesperson told NPR’s Carrie Johnson, and with good reason. As for Rosenstein, who has been a prosecutor long enough to know how these things are supposed to work, he already telegraphed that he’s fully behind Mueller’s work so far, including the Manafort case. During a hearing before Congress last month, he testified that he saw no “good cause” to fire Mueller — a reference to the regulation that governs the circumstances under which a special counsel could get in trouble.
Weeks before Manafort and his associate Rick Gates were indicted, his lawyers quietly and unsuccessfully fought Mueller, who won a secret order allowing him to compel grand-jury testimony from one of their lawyers. That hefty, wonky court victory for the special counsel — which allowed him to pierce sacred attorney-client confidences — proved that Mueller, Dreeben, and the rest of their legal team is not to be messed with. And that Manafort’s latest play, in the end, is no more than needless political theater.
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