United States District Court, District of Columbia
PAUL J. MANAFORT, JR., Plaintiff,
U.S. DEPARTMENT OF JUSTICE, et al, Defendants.
BERMAN JACKSON United States District Judge
Paul J. Manafort Jr., who has been indicted in two criminal
cases brought by the Office of Special Counsel, filed a civil
complaint against the Department of Justice
("DOJ"), Special Counsel Robert S. Mueller III, and
Acting Attorney General Rod J. Rosenstein, alleging that the
Department exceeded its authority when it issued the order
appointing the Special Counsel (the "Appointment
Order"), and that the Special Counsel exceeded his
authority as well. Compl. [Dkt. # 1]. Manafort has refined
his claims since the case was originally filed, and in this
civil case, he is only asking the Court to enj oin future
actions against him under the Appointment Order. But as the
D.C. Circuit has made clear, "prospective defendants
cannot, by bringing ancillary equitable proceedings,
circumvent federal criminal procedure." Deaver v.
Seymour, 822 F.2d 66, 71 (D.C. Cir. 1987). Therefore,
defendants' motion to dismiss the complaint will be
of the complaint, brought against DOJ and the Acting Attorney
General, alleges that the Acting Attorney General issued an
Appointment Order that did not comport with the applicable
DOJ regulation. See Compl. ¶¶ 50-59; 28
C.F.R. § 600.4. Therefore, according to Manafort, the
grant of authority to the Special Counsel was an ultra
vires action on the part of the Acting Attorney General
in violation of the Administrative Procedure Act
("APA"). See Compl. ¶¶ 50-59.
Count II, brought only against the Special Counsel, alleges
that even if the Appointment Order was valid, the Special
Counsel exceeded the scope of the authority he was given when
he indicted Manafort, because the charges did not arise out
of the investigation into the 2016 presidential election and
the allegations of Russian interference in the election.
Id. ¶¶ 60-67.
seeks declaratory and injunctive relief. The complaint
requests "an order and judgment setting aside the
Appointment Order and declaring it invalid, " and it
asks for "an order and judgment declaring ultra
vires and setting aside all actions taken against Mr.
Manafort pursuant to the Appointment Order, " which
would include the pending criminal indictments. Compl. at 17
("Prayer for Relief); see also Id. ¶ 63
("Mr. Mueller's actions must be set aside.").
February 2, 2018, defendants filed a motion to dismiss the
civil case pursuant to Federal Rule of Civil Procedure
12(b)(6). Defs.' Mot. to Dismiss [Dkt. # 16]
("Defs.' Mot"); Defs.' Mem. in Supp. of
Defs.' Mot. [Dkt. # 16-1] ("Defs.' Mem.").
They argue first that Manafort may not bring a federal civil
action to interfere with his ongoing criminal prosecution.
Defs.' Mem. at 11-18. Next, they contend that Count I
should be dismissed for three reasons: (1) the APA may only
be invoked by claimants who do not have an adequate remedy at
law, and Manafort has such a remedy in the Federal Rules of
Criminal Procedure; (2) the Special Counsel regulations do
not create legal rights that can be enforced through any
lawsuit, including a civil suit brought under the APA; and
(3) there has been no final agency action for purposes of the
APA. Id. at 11-28. Defendants also argue that Count
II fails to state a justiciable claim under the Declaratory
Judgment Act because the Act standing alone does not provide
a basis for federal courts to exercise subject matter
jurisdiction under Article III of the Constitution. See
Id. at 28-33.
meantime, the Court set a motions schedule in the criminal
case, and on March 14, 2018, Manafort filed a motion pursuant
to Federal Rules of Criminal Procedure 12(b)(2) and 12(b)(3)
to dismiss the indictment on the same two grounds: (1)
because the appointment of the Special Counsel was an
ultra vires act by the Acting Attorney General that
was contrary to the terms of the DOJ Special Counsel
regulations; and (2) because the indictment exceeds the scope
of the authority granted to the Special Counsel in the
Appointment Order. United States v. Manafort, No.
1:17-cr-201-l (D.D.C. 2017), Def.'s Mot. to Dismiss the
Superseding Indictment [Dkt. # 235] at 13-37. And on March
27, 2018, Manafort filed a similar motion to dismiss the
indictment pending in the Eastern District of Virginia.
See United States v. Manafort, No. 1:18-cr-83 (E.D.
Va. 2018), Def.'s Mot. to Dismiss [Dkt. # 30]. While
there is obvious overlap among the issues raised in the
instant civil action and in the motions to dismiss the
criminal cases, this opinion will not address, and should not
be read as expressing any opinion about, the merits of those
event, Manafort has significantly narrowed the scope of his
civil case to reduce that overlap. In his opposition to the
pending motion to dismiss, plaintiff appeared to back away
from what seemed to be an unambiguous request that the Court
deem the indictment to be invalid. When the complaint was
filed, it alleged:
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.
By ignoring the boundaries of the jurisdiction granted to the
Special Counsel in the Appointment Order, Mr. Mueller acted
beyond the scope of his authority. Mr. Mueller's actions
must be set aside.
Compl. ¶ 63 (internal edits omitted); see also
Prayer for Relief ¶ b (seeking "an order and
judgment. . . setting aside all actions taken against Mr.
Manafort pursuant to the Appointment Order"). But in a
footnote to his opposition to defendants' motion to
dismiss, plaintiff stated: "[t]o the extent the
[c]omplaint can be read to seek dismissal of the indictment
in the pending criminal case in this Court, Mr. Manafort
expressly waives any such claim for relief in this civil
case." Pl's Opp. at 11 n.2. At the hearing on the
motion held on April 4, 2018, plaintiff disavowed any further
interest in an order setting aside the indictments,
see Tr. of Proceedings Held on Apr. 4 [Dkt. # 33]
("Tr.") at 7:12-20; id. at 10:10-13;
id. at 11:11-14, and with that, he abandoned Count
II. Id. at 10:14-16 ("The Court: So that means
you're withdrawing Count Two? Mr. Downing: We are, Your
Honor."). Thus, the only claim that is pending for
purposes of this motion is Count I against the Department of
Justice and the Acting Attorney General under the APA, and
plaintiff has emphasized that with that claim, he seeks only
"prospective relief: an order declaring invalid the
ultra vires Appointment Order and enjoining the
Special Counsel's future ultra vires exercise of
authority under that Order." Pl's Opp. at 11;
see also Tr. at 7:22-25; id. at 8:21-23.
counsel further clarified at the hearing that plaintiff is
not seeking an order setting aside the Appointment Order in
its entirety; rather, he is only seeking to invalidate
paragraph (b)(ii), which grants the Special Counsel the
authority to investigate "any matters that arose or may
arise directly from the investigation." Tr. at
9:12-10:9; see also Ex. A to Compl. [Dkt. #1-1]
civil case is not the appropriate vehicle for taking issue
with what a prosecutor has done in the past or where he might
be headed in the future. It is a sound and well-established
principle that a court should not exercise its equitable
powers to interfere with or enjoin an ongoing criminal
investigation when the defendant will have the opportunity to
challenge any defects in the prosecution in the trial court
or on direct appeal. Therefore, the Court finds that this
civil complaint must be dismissed. The conclusion that this
is the necessary outcome is reinforced by the requirement in
the sole statute that plaintiff invokes - the Administrative
Procedure Act - that a claimant may only seek relief under
the Act if he lacks an adequate remedy at law. Plaintiff s
claims about the legitimacy of the Appointment Order can be
addressed in his criminal cases in accordance with the
Federal Rules of Criminal Procedure, so the Court should not
reach the merits of those claims here. Moreover, given the
way plaintiff has re-characterized and altered his civil
complaint to overcome these obstacles to the Court's
exercise of its jurisdiction, it is not at all clear that
there is any ripe, justiciable controversy left in this
lawsuit for the Court to resolve, and there are certainly no
allegations of impending irreparable harm that would justify
general matter, litigation on behalf of the United States is
"reserved to officers of the Department of Justice,
under the direction of the Attorney General." 28 U.S.C.
§ 516. But Congress has expressly authorized the
Attorney General to appoint Special Counsel. Section 515(a)
of Title 28 of the United States Code provides:
The Attorney General or any other officer of the Department
of Justice, or any attorney specially appointed by the
Attorney General under law, may, when specifically directed
by the Attorney General, conduct any kind of legal
proceeding; civil or criminal . . . which United States
attorneys are authorized by law to conduct....
28 U.S.C. § 515(a).
promulgated a set of regulations that outline circumstances
under which the Attorney General may appoint a Special
Counsel and the procedure for doing so. The regulations also
describe the scope of a Special Counsel's authority and
the nature of the ongoing relationship between a Special
Counsel and DOJ. See28C.F.R
§§600.1-600.10. In his complaint, Manafort points
to one of these regulations in particular.
regulation that forms the basis for this lawsuit provides
that the Special Counsel's original jurisdiction
"shall be established by the Attorney General, " 28
C.F.R. § 600.4(a), and that the "Special Counsel
will be provided with a specific factual statement of the
matter to be investigated." Id. The
"original jurisdiction" of the Special Counsel also
includes "the authority to investigate and prosecute
federal crimes committed in the course of, and with intent to
interfere with, the Special Counsel's
the terms of this regulation, the Special Counsel may seek
"additional jurisdiction" from the Attorney General
"beyond that specified in his or her original
jurisdiction" if the Special Counsel concludes that it
"is necessary in order to fully investigate and resolve
the matters assigned, or to investigate new matters that come
to light in the course of his or her investigation."
Id. § 600.4(b). At that point, the Attorney
General "will determine whether to include the
additional matters within the Special Counsel's
jurisdiction or assign them elsewhere." Id.
complaint alleges that by "early 2017, DOJ had publicly
revealed that it was investigating allegations that President
Trump's campaign colluded with Russian government
officials and/or representatives to sway the outcome of the
2016 presidential election." Compl.¶27.
Director of the FBI at the time, James B. Comey, testified
about the investigation in a hearing before the House
Permanent Select Committee on Intelligence on March 20, 2017.
I have been authorized by the Department of Justice to
confirm that the FBI, as part of our counterintelligence
mission, is investigating the Russian government's
efforts to interfere in the 2016 presidential election, and
that includes investigating the nature of any links between
individuals associated with the Trump campaign and the
Russian government and whether there was any coordination
between the campaign and Russia's efforts.
B. Comey, HPSCI Hearing Titled Russian Active Measures
Investigation, FBI.gov (March 20, 2017),
investigation/layout, view. Former Director Comey also
specifically informed the Committee that "[a]s with any
counterintelligence investigation, this will also include an
assessment of whether any crimes were committed."
Id. But he explained, "[b]ecause it is an open,
ongoing investigation and is classified, I cannot say more
about what we are doing and whose conduct we are
March 2, 2017, Attorney General Jeff Sessions recused himself
from the matter, and Deputy Attorney General Rod J.
Rosenstein became the highest-ranking DOJ official with
authority over the investigation. Compl. ¶¶ 28-29.
On May 17, 2017, Acting Attorney General Rosenstein appointed
Robert S. Mueller III to serve as Special Counsel for the
Department of Justice. Id. ¶ 30.
Appointment Order states:
By virtue of the authority vested in me as Acting Attorney
General, including 28 U.S.C. §§ 509, 510, and 515,
in order to discharge my responsibility to provide
supervision and management of the Department of Justice, and
to ensure a full and thorough investigation of the Russian
government's efforts to interfere in the 2016
presidential election, I hereby order as follows:
(a) Robert S. Mueller III is appointed to serve as Special
Counsel for the United States ...