312 F. Supp. 3d 60
D.C. Cir.2018Background
- Acting AG Rod Rosenstein appointed Robert S. Mueller III as Special Counsel on May 17, 2017 to "conduct the investigation confirmed" by FBI Director Comey into Russian interference in the 2016 election, including: (i) links/coordination between Russia and individuals associated with the Trump campaign; (ii) "any matters that arose or may arise directly from the investigation"; and (iii) other matters under 28 C.F.R. § 600.4(a).
- Manafort was indicted in the Special Counsel investigation on charges including acting as an unregistered foreign agent, money laundering, conspiracy to defraud the United States, and false statements (Superseding Indictment, Feb. 23, 2018).
- Manafort moved to dismiss, arguing (1) paragraph (b)(ii) of the Appointment Order (authority to pursue "matters that arose or may arise") exceeded the Acting AG’s authority under the DOJ Special Counsel Regulations and (2) even if valid, the Special Counsel exceeded his charter in investigating/prosecuting the charged conduct.
- Government produced a non-public August 2, 2017 memorandum from the Acting AG specifying that allegations concerning Manafort (including crimes arising from payments from Ukraine and collusion with Russian officials) were within the scope of the investigation and specifically assigned to the Special Counsel.
- The Court held the indictment falls within the unchallenged portion of the Appointment Order (investigating "any links and/or coordination" between Russia and individuals associated with the campaign) and, alternatively, rejected Manafort’s regulatory-enforcement theory and found the Appointment Order and assignment complied with the DOJ regulations.
Issues
| Issue | Manafort's Argument | Government's Argument | Held |
|---|---|---|---|
| Validity of paragraph (b)(ii) of Appointment Order ("matters that arose or may arise") under DOJ Special Counsel Regulations | (Manafort) Paragraph (b)(ii) is overly broad and inconsistent with 28 C.F.R. § 600.4; it unlawfully expands Special Counsel authority beyond "original jurisdiction" and lacks required specificity | (Gov) Regulations are internal management rules that do not create enforceable rights; even if enforceable, Acting AG had statutory/regulatory authority to define charter broadly and provided specific assignment via non-public memorandum | The Court denied dismissal: (1) indictment fits within unchallenged (b)(i) authority; (2) regulations do not create judicially enforceable individual rights; (3) even if enforceable, the Acting AG acted within his authority and provided specific assignment to Special Counsel. |
| Whether DOJ Special Counsel Regulations create privately enforceable rights that permit dismissal of an indictment | (Manafort) The Acting AG’s appointment exceeded regulatory limits; defendant can enforce compliance and seek dismissal | (Gov) Regulations are internal, housekeeping rules (28 C.F.R. § 600.10) and do not confer rights enforceable by third parties; precedent bars relief based on internal DOJ policies | The Court held the regulations are internal management rules that do not create enforceable rights for defendants; dismissal cannot be predicated on alleged regulatory violations. |
| Whether the Special Counsel exceeded his granted authority by investigating/prosecuting Manafort for conduct alleged in the indictment | (Manafort) The charged conduct concerns pre-2016 Ukraine work unrelated to campaign coordination and thus outside the Special Counsel's lawful scope | (Gov) Manafort was a senior campaign official with public ties to Russian-linked Ukrainian actors; investigating him was a logical component of probing "links" to Russia; Acting AG specifically authorized investigation of Manafort-related allegations in the Aug. 2 memorandum | The Court held the investigation and indictment fell within the Appointment Order’s unchallenged grant to investigate "any links and/or coordination" and, alternately, were specifically authorized by the Acting AG. |
| Whether a court may review/second-guess the Attorney General’s allocation of jurisdiction between DOJ components under §600.4(b) | (Manafort) Court should enforce regulatory allocation rules and require specificity; otherwise Special Counsel has unfettered authority | (Gov) The regulations vest allocation decisions with the Attorney General; judicial micromanagement is inappropriate; the Acting AG did make the allocation | The Court found the Acting AG made the necessary assignment (including in the August 2 memorandum); courts should not intrude into DOJ internal assignment absent a statute creating private rights. |
Key Cases Cited
- United States v. Nixon, 418 U.S. 683 (1974) (Executive Branch bound by its own delegation/regulation to a special prosecutor; courts have jurisdiction to resolve privilege disputes in criminal prosecutions)
- Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (distinction between substantive/legislative rules and interpretative rules or policy statements)
- Morton v. Ruiz, 415 U.S. 199 (1974) (legislative rules affect individual rights and require APA procedures)
- United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (agency bound by its delegation/regulation as long as it remains extant)
- United States v. Caceres, 440 U.S. 741 (1979) (failure to follow internal agency rules does not automatically require exclusion or suppression in criminal cases)
- United States v. Lee, 274 F.3d 485 (8th Cir. 2001) (DOJ manual disclaimers preclude defendants from relying on those internal policies to create enforceable rights)
- In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006) (DOJ guidelines with disclaimers do not confer enforceable rights; they guide prosecutorial discretion)
- In re Espy, 145 F.3d 1365 (D.C. Cir. 1998) (court’s statutory authority to expand independent counsel jurisdiction is limited; distinguished because Espy arose under now-expired statute)
- Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) (courts may enjoin government actions taken in excess of statutory authority)