John Dean: Manafort Is Trying to Dodge a Gag Order

This article first appeared on Verdict.

On January 3, 2018, former Trump campaign manager and Washington lobbyist Paul Manafort—currently under federal indictment for multiple counts of money laundering, failure to register as a foreign lobbyist, and false statements—filed a civil lawsuit contesting the jurisdiction of Special Counsel Robert Muller for having filed a criminal action against him.

More specifically, Manafort acknowledges that Special Counsel Mueller was appointed to investigate whether there were improper connections between Trump's presidential campaign and the Russian efforts to influence the outcome of the 2016 presidential election, but Manafort contests the authority of Mueller to investigate his lobbying activities with Ukraine years earlier.

Manafort's civil action seeks for the court to declare Mueller's appointment "invalid, arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law." Also to set aside the indictment as improperly issued, and to enjoin Mueller from investigating him further.

Manafort's lawsuit provoked swift response from attorneys across the political spectrum, and few were complimentary of Manafort's counsel— Kevin Downing and Thomas Zehnle, experienced attorneys —for their action. To the contrary, knowledgeable commentators, not to mention common sense, raise many questions about this action, with the answers all suggesting why it should, and will, fail.

Manafort's civil lawsuit offers no explanation of why such a unique action was taken. The lawsuit has been assigned to US District Court for the District of Columbia Judge Ketanji Brown Jackson.

The first question the civil action raises is why these issues are not being addressed in the motion filed in the criminal action against Manafort, which is currently pending before US District Court for the District of Columbia Judge Amy Berman Jackson.

(The docket indicates that there was an effort by a third party to intervene in the criminal case, which was rejected by Judge Jackson. But the nature of the intervention—thus whether it addressed issues now raised by Manafort's civil action—is not disclosed by the docket.)

Former Trump campaign chairman Paul Manafort (left) arrives at a federal courthouse with his attorney Kevin Downing (right) November 2, 2017 in Washington, DC. Alex Wong/Getty

Attorney, legal-writer, and senior fellow at American Progress Ian Millhiser points out in his essay, " 4 fatal flaws in Paul Manafort's lawsuit claiming Mueller can't prosecute him," that this "strange tactic" of filing a civil action "risks annoying the trial judge assigned to hear his criminal trial—judges typically don't appreciate it when you go behind their back—and there are legal doctrines in place that normally prevent the same matter from being litigated simultaneously before different judges."

Millhiser also notes the fact that the Justice Department regulation Manafort's action relies upon expressly states it " may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative."

Appropriately, Millhiser takes issue with Manafort's reading of the facts, and finally points out that all Mueller needs to do is consult with his superior—here Deputy Attorney General Rod Rosenstein, who appointed him—to add to his jurisdiction, if that were necessary—which Millhiser does not believe to be the situation.

In fact, Neal Katyal, the former Justice Department attorney who wrote the special counsel regulations, explained on the Rachel Maddow Show that Rosenstein had already testified on December 13, 2017, before the House Judiciary Committee that Mueller had sought and received approval for expanding his inquiry to cover Manafort's investigation, precisely as called for by the special counsel regulations.

More specifically, as the CNN transcript for the hearings shows, Rosenstein had the following exchange with Congressman Lamar Smith of the committee:

SMITH: … My question was, has he [Special Counsel Mueller] asked you or consulted with you about a desire to expand the investigation beyond the original scope?

ROSENSTEIN: Well, the consultation, actually, is much more detailed than that. He consults with me, his office consults with me about their investigation, both within and without the scope. So, I know what they're authorized to do.

SMITH: I know you know what they're doing, but has he requested to expand the scope of the original—of the original jurisdiction?

ROSENSTEIN: The scope of the original jurisdiction, as you know, is publicly set forth…

SMITH: Right.

ROSENSTEIN: … in that order. But the specific matters are not identified in the order. So, I discussed that with Director Mueller when he started, and we've had ongoing discussion about exactly what is within the scope of his investigation. And, to the extent there was any ambiguity about it, he's received my permission to include those matters within his investigation.

Neal Katyal explained that Mueller had already done what was called for under the regulations, which is why he found the Manafort civil lawsuit not merely frivolous but "silly."

Slate's Mark Joseph Stern was even blunter: " Paul Manafort's Ridiculous Lawsuit Against Robert Mueller Is a Pure Publicity Stunt," his analysis concluded. Stern reviews the many reasons the civil lawsuit will fail, and then asked: Why file it?

His answer strikes me as correct, but he is missing a key fact. Stern's answer: "Most likely, the lawsuit constitutes a kind of publicity stunt designed to change the narrative around his prosecution. It allows Manafort to defend himself publicly—to reframe his indictment as an egregious abuse of Mueller's power, and paint the investigation as a sweeping witch hunt. This spin may persuade his Republican sympathizers. But it will not hold much sway in the federal judiciary."

To Stern's conclusion I would add: The civil lawsuit gives Manafort's lawyers a way to talk about his prosecution by the special counsel without violating the gag order imposed by Judge Amy Jackson on November 8, 2017.

"In order to safeguard defendants' rights to a fair trial, and to ensure that the court has the ability to seat a jury that has not been tainted by pretrial publicity, all interested participants in the matter, including the parties, any potential witnesses, and counsel for the parties and the witnesses, are hereby ordered to refrain from making statements to the media or in public settings that pose a substantial likelihood of material prejudice to this case," the judge stated.

Admonishing counsel, who had been giving press conferences on the courthouse steps, "This is a criminal trial. It is not a public relations campaign."

Manafort's lawsuit is so weak there is no other explanation, making this an effort to get around Judge Amy Jackson's gag order to discuss the case. The lawsuit is an attack—not well founded but the partisans do not look at the law—on Special Counsel Mueller.

Hopefully Judge Ketanji Brown Jackson sees the civil action for what it is and dismisses the case soon rather than later. This strategy could also backfire on Manafort in the criminal trial, for it cannot please Judge Amy Jackson.

It is highly unusual behavior for such seasoned attorneys, and one of the judges may ask them to explain themselves.

John W. Dean is a former counsel to President Nixon.