Judge questions whether DOJ gave Mueller too much power

A federal judge on Thursday questioned whether the Department of Justice (DOJ) gave special counsel Robert Mueller more authority to conduct his federal probe into Russian interference in the 2016 election than the agency’s rules allow.

U.S. District Judge Amy Berman Jackson questioned whether Deputy Attorney General Rod Rosenstein’s order to appoint Mueller granted him more authority than DOJ regulations appear to permit, after Manafort’s counsel pointed out how Rosenstein’s order in May said the special counsel can look into anything of consequence that “arose or may arise” in his investigation.

“That’s a fair point,” Jackson reportedly replied.

Trump’s former campaign manager sued the DOJ and the special counsel’s office in January in an effort to block Mueller’s team from carrying out future prosecutions against him, arguing that Mueller has gone beyond the scope of his investigation. {mosads}

Manafort’s lead defense attorney, Kevin Downing, argued that Rosenstein — who appointed Mueller — did not clearly specify what could or could not be examined, giving the special counsel free rein to investigate a broad swath of issues. This, he said, has led the special counsel to begin looking into old allegations that extend beyond his investigation’s jurisdiction and authority.

Downing said that contradicts Justice’s regulations, which maintain that the directive given to a special counsel must include a specific factual matter about their investigation.

While the argument appeared to get some traction with the judge, it is unclear whether it will sway her ruling in the civil case. Jackson is also presiding over Manafort’s criminal case.

A top DOJ attorney working with Mueller’s office, Michael Dreeben, argued in response that an investigation “naturally moves forward” and can morph as new information is uncovered.

Manafort’s team, Dreeben noted, wants to restrict Mueller to such a degree that it would “intrude” on the special counsel’s ability to carry out an independent investigation without constant DOJ oversight. He specifically argued that examining Manafort’s ties to Ukrainian officials are relevant to the probe because it may be somehow connected with his ties alleged to Russia.

Dreeben went one step further and said that Manafort may have served as a back-channel to Russia.

Jackson, who said she will continue to consider Manafort’s case, grilled both sides for more than two hours about Manafort’s efforts to dismiss the superseding indictment against him as well as three other motions. The exchanges at times waded into nuanced analysis of legal text and past court precedents.

Manafort’s attorneys argued that Mueller should be ordered to stop looking into any of his conduct that doesn’t relate to his time serving on Donald Trump’s presidential campaign, such as his previous business dealings with Ukrainian officials that took place before the election.

In the separate criminal case in D.C. earlier this month, Mueller’s team filed a redacted copy of an Aug. 2 memo from Rosenstein saying Mueller could investigate “any matters that arose or may arise directly from the investigation” as well as “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”

Dreeben said the memo aimed to document an agreement with Rosenstein and Mueller over the scope of the investigation, not an after-the-fact justification as Manafort’s team suggested.

Jackson appeared skeptical earlier this month about Manafort filing a civil case against the DOJ and the special counsel, according to reports. She questioned whether there had been clear lines drawn as to what Mueller can investigate, why Manafort is looking to block additional charges that have yet to be filed, and why he is pursuing this civil lawsuit when the same arguments could be made in the criminal case.

Some law experts chalked up the move as a publicity stunt since he could have filed this motion in the criminal case.

“My initial reaction is that Manafort, an expert in the dark arts of manipulating public opinion, wants to gain additional media exposure without putting this in front of the judge who would ultimately sentence him if convicted,” Renato Mariotti, a federal prosecutor, wrote in Just Security in January.

“If an indictment can be challenged legally, typically the defendant files a motion to dismiss that indictment as part of the criminal case. It’s hard to see why Manafort chose to file this as a civil lawsuit instead of filing a motion in the criminal case,” he added.

Manafort is also suing Rosenstein, who issued the order to appoint Mueller as special counsel in May after President Trump fired then-FBI Director James Comey as he was leading the bureau’s investigation into Russian interference.

Manafort’s lawyers initially argued that the decision to appoint Mueller was invalid, but they later walked back that claim and shifted their attention to the scope of the probe.

A Department of Justice spokesperson dismissed Manafort’s civil lawsuit as “frivolous” when it was filed.

The original charges against Manafort and his business associate, Richard Gates, included conspiracy against the U.S., conspiracy to launder money, failure to register as agents working on behalf of a foreign government, making false and misleading statements under the Foreign Agents Registration Act, as well as intentionally making false statements in an effort to conceal their crimes against the country.

In February, a grand jury in Virginia issued a superseding indictment for Gates and Manafort that brought the total charges to 32 counts.

Manafort is battling out several cases in court.