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Judge Rules Mueller Has Authority to Prosecute Manafort

Discussion in 'Too Hot for Swamp Gas' started by GatorBen, May 15, 2018.

  1. GatorBen

    GatorBen Premium Member

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    Opinion and order here: https://www.politico.com/f/?id=00000163-6599-d92c-a17f-eddde22f0001

    So much for that straw to grasp at, at least in the D.D.C. case...

    Quote from the intro of the opinion and order that sets this forth pretty clearly:

    "The motion to dismiss will be denied for a number of reasons.

    First, the indictment falls squarely within that portion of the authority granted to the Special Counsel that Manafort finds unobjectionable: the order to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign.” Appt. Order ¶ (b)(i). Manafort was, at one time, not merely “associated with,” but the chairman of, the Presidential campaign, and his work on behalf of the Russia-backed Ukrainian political party and connections to other Russian figures are matters of public record. It was logical and appropriate for investigators tasked with the investigation of “any links” between the Russian government and individuals associated with the campaign to direct their attention to him. Thus, the Departmental regulations that Manafort claims were violated by paragraph (b)(ii) of the Appointment Order are not implicated here, and the motion, which supplies no other basis to dismiss the indictment, should be denied for that reason.

    But even if one posits that the scrutiny of Manafort’s alleged activities on behalf of Ukraine did not flow from the investigation of “links” to Russia that was assigned to the Special Counsel, and that instead, it was a “matter that arose” from that investigation, the indictment should not be dismissed. The second reason Manafort’s motion fails is that the Department of Justice promulgated the Special Counsel Regulations for its own internal management, and they do not create any substantive rights for the benefit of individuals under investigation. This means that Manafort cannot predicate a motion to dismiss on the regulations.

    Also, even if a judge were to conclude that the regulations could give rise to rights that can be enforced in a courtroom, the Acting Attorney General did not violate those regulations when he exercised his statutory authority to authorize the Special Counsel to investigate not only “links and/or coordination,” but also, “any matters that arose or may arise directly from the investigation.” The Acting Attorney General had the authority under the applicable statutes and regulations to define the Special Counsel’s charter broadly. Therefore, paragraph (b)(ii) of the Appointment Order – which does not appear to bear on this indictment in any event – is not invalid on its face.

    Finally, the case did not arise in a vacuum, and the Special Counsel did not create his own job description. He was appointed to take over an existing investigation, and it appears from the chronology and the written record that the matters contained in the Superseding Indictment were already a part of the ongoing inquiry that was lawfully transferred to the Special Counsel by the Department of Justice in May of 2017. More important, the Acting Attorney General has confirmed in writing that he assigned the Special Counsel the specific responsibility to investigate the very allegations that comprise the Superseding Indictment. This is exactly what the Department of Justice regulations contemplate: a specific factual statement of the matters to be investigated. So to the extent the regulations bear on this case at all, they were not violated; the management of the investigation into the allegations against Manafort has been consistent with the objectives and requirements of the set of regulations as a whole, as well as the terms of the individual regulation upon which the defendant relies."
     
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  2. WarDamnGator

    WarDamnGator GC Hall of Fame

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    Is the same judge that, per the Too Hot conservative filter, "called Mueller a liar" a few days ago?
     
  3. GatorBen

    GatorBen Premium Member

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    I believe that's the judge presiding over his Eastern District of Virginia trial, this is the one presiding over the charges in the District of DC.

    The argument before both judges was effectively identical though.
     
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  4. fastsix

    fastsix Premium Member

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    Seattle
  5. WarDamnGator

    WarDamnGator GC Hall of Fame

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    Thanks for the clarification.
     
  6. GatorBen

    GatorBen Premium Member

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    And for the "what does this have to do with collusion" crowd (italicization for emphasis is mine, bolding for emphasis is the court's):

    "Manafort complains that the investigation of the allegations contained in the indictment was unauthorized since the charges “do not focus in the slightest on alleged coordination between the Russian government and the Trump campaign during the 2016 election.” Def.’s Mot. at 2; see also Manafort v. Dep’t of Justice, No. 18-cv-00011 (D.D.C. 2017), Compl. [Dkt. # 1] ¶ 47 (“Those allegations have nothing to do with the 2016 presidential election or any alleged collusion with Russian officials.”); id. ¶ 63 (“The indictment raises stale allegations DOJ must have been aware of for nearly a decade; they are not matters that ‘arose . . . from the investigation’ into the 2016 election and alleged collusion with the Russian government.”). But the grant of authority that Manafort agrees was lawful was not so narrow. The word “collusion” does not even appear in the Appointment Order, and the Special Counsel was tasked with taking over the existing investigation, “including” “any links and/or coordination.” Appt. Order. This delineation of the scope of the inquiry, which was revealed to Congress by the then-FBI Director and then repeated in the Appointment Order, makes sense; in order to reach the end of the road, and come to a conclusion about whether there was coordination or not, a key place to begin is with the individuals who would have been in a position to coordinate. Who had connections to the Russian government? Who attended meetings on behalf of the campaign? Given the combination of his prominence within the campaign and his ties to Ukrainian officials supported by and operating out of Russia, as well as to Russian oligarchs, Manafort was an obvious person of interest.

    ***

    Manafort points to no legal requirement or Departmental policy, and there is nothing in any statute or the Special Counsel Regulations, that would require the prosecutor to look away if the duly authorized investigation into those links revealed evidence of a crime other than “coordination.” The Appointment Order specifically provided: “if the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.” Appt. Order ¶ (c); see also 28 U.S.C. § 515 (“[A]ny attorney specially appointed by the Attorney General under law, may . . . conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings . . . , which United States attorneys are authorized by law to conduct.”); 28 C.F.R. § 600.6 (“[T]he Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.”). Thus, the indictment was authorized by the portion of the Appointment Order that Manafort does not challenge."
     
  7. duchen

    duchen VIP Member

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    Basically, no different than if Mueller was a DOJ prosecutor. The Regs allow him to exercise any authority permitted to be exercised by any AUSA.

    What will be interesting is if the Virginia Judge disagrees.
     
  8. duchen

    duchen VIP Member

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    Thanks for making it easy to find the order
     
  9. duchen

    duchen VIP Member

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    If I were Manafort, I would focus on this language cited at page 10 of the order and argue that Mueller is a private prosecutor in violation of Article II:

    "A person named as Special Counsel must be a lawyer 'outside of the United States Government,' with “a reputation for integrity and impartial decisionmaking,” and with the “appropriate experience” to conduct the investigation “supported by an informed understanding of the criminal law and Department of Justice policies.” 28 C.F.R. § 600.3.

    Of course, once appointed, he is "inside the United States Government." But, it is worth the constitutional challenge.
     
  10. gator_fever

    gator_fever GC Hall of Fame

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    Is this Judge Ellis? If its the other one they are a known lefty hack from what people said even before this ruling.

    If its Ellis I give it credence because that guy is overturned on appeal at one of the lowest rates by the appeals courts.
     
    Last edited: May 15, 2018
  11. gator_fever

    gator_fever GC Hall of Fame

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    lol Should have known its the lefty activist hack Judge. I look forward to seeing an honest ruling from Judge Ellis.
     
  12. GatorBen

    GatorBen Premium Member

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    This is a really well-reasoned opinion.

    Which is admittedly made somewhat easier by the fact that Manafort’s objection is a pretty dumb argument.
     
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  13. gator_lawyer

    gator_lawyer Premium Member

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    They'd lose.
     
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  14. gator_fever

    gator_fever GC Hall of Fame

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    Well its what she is. I glanced over it and it comes off as an argument a Judge would make trying to find any way to justify some of Muellers mess.

    Who knows maybe Ellis will see some things the same but I doubt all of it or even the main points.

    What happens if he rules differently - could we get a quick decision by an appeals court to take this? Do they fall under the same appeals court even?
     
  15. gator_lawyer

    gator_lawyer Premium Member

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    The case proceeds in D.C. and goes away in VA. No, they don't. VA is in the 4th Circuit. D.C. is in the D.C. Circuit.
     
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  16. GatorBen

    GatorBen Premium Member

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    They do not - DDC is in the DC Circuit, EDVa is in the Fourth Circuit.

    But I would be pretty surprised if Ellis ultimately rules differently. Manafort’s argument turns on the idea that he has some substantive rights stemming from internal organizational regulations promulgated by the Department of Justice, notwithstanding that both the regulations themselves and a mountain of precedent say that those kinds of regulations do not give rise to any substantive rights that anyone can enforce in court.

    Manafort’s argument really is a pretty dumb one.
     
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  17. philobeddoe

    philobeddoe GC Hall of Fame

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    Oh jeez, a nobama appointee. Just another liberal lawyer.

    I’m sure the leftie legalisms will have wet dreams over this ruling.
     
    Last edited: May 15, 2018
  18. oragator1

    oragator1 Premium Member

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    Jackson was always going to do this, but it does put more pressure on the VA judge.
     
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  19. gator_fever

    gator_fever GC Hall of Fame

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    Not sure what Ellis is really thinking but I agreed with what he was pointing out when discussing it. The special counsel law was made to reign these guys in from when it was an independent counsel and just because Rosenstein may be in bed with Mueller shouldnt change that.

    I have problems with so called conservative justices sometimes also when they like to twist their reasoning to justify illegal police searches etc after the fact. That is why I like a conservative Judge to have a little bit of a libertarian streak in them like Scalia had at times.
     
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  20. duchen

    duchen VIP Member

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    Likely, as I noted. But, that is where I would go. There is case law prohibiting private prosecutors,