Why Manafort's Attempt to Nix Mueller's Prosecution Is Going Nowhere

This article first appeared on Just Security in two parts. Renato Mariotti's article is here and Steve Vladeck's is here.

Renato Mariotti writes: What should we make of former Trump campaign chief Paul Manafort's lawsuit against Special Counsel Robert Mueller, Deputy Attorney General Rod Rosenstein, and the Justice Department? Here are some initial thoughts.

First of all, Manafort's charge that Mueller acted outside of his authority by indicting him is an extremely unusual move. 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. 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.

This suit has almost no chance of success. Even if it succeeded, another federal prosecutor could indict Manafort for the same crimes, so it's a pointless suit.

He's counting on the public (or conservative allies) to take this publicity stunt seriously. Don't.

Steve Vladeck writes:

For the second time in as many months, "Younger abstention" is in the news.

Last month, it was as a legal concept sufficiently foreign to one of President Trump's district court nominees as to turn him into a viral Internet meme (and, ultimately, lead him to withdraw from consideration).

Now, it's because of the… odd… lawsuit filed on Wednesday by Paul Manafort, seeking to invalidate the authority of Special Counsel Mueller to prosecute him.

I already tweeted about why, on the merits, there's very little to Manafort's substantive claim until and unless the Supreme Court actually wants to revisit Morrison v. Olson —and perhaps not even then:

The only way that this complaint has a chance is if there really is a majority of the current #SCOTUS that wants to, and will, overrule Morrison v. Olson. And as Eric Posner and I testified before the Senate in September, we just don't see that happening.

and

Indeed, even if a majority of the current Justices would overrule Morrison in an appropriate case, the Special Counsel regulation is much less intrusive (and less problematic) than the Independent Counsel statute was, as I explained in my testimony.

In this brief post, I want to explain why, without even getting to the merits, Manafort's suit is doomed—and why, once again, Younger (or, at least, the broader equitable principle it reflects) figures prominently.

Younger v. Harris is part of most Federal Courts syllabi because it's a canonical case concerning the power of federal courts to block ongoing state criminal proceedings.

And what Younger holds, at its simplest, is that federal courts should not (and will not) entertain lawsuits effectively seeking to block ongoing state criminal prosecutions absent a "showing of bad faith, harassment, or any other unusual circumstance . . . where the danger of irreparable loss is both great and immediate."

But whereas Younger itself is a case all about "Our Federalism," as Justice Black put it, the deeper principle it reflected had nothing at all to do with federal-state relations.

As the Court explained, the rule stemmed from

The basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.

The doctrine may originally have grown out of circumstances peculiar to the English judicial system and not applicable in this country, but its fundamental purpose of restraining equity jurisdiction within narrow limits is equally important under our Constitution, in order to prevent erosion of the role of the jury and avoid a duplication of legal proceedings and legal sanctions where a single suit would be adequate to protect the rights asserted.

In other words, the doctrine of "equitable restraint" precludes collateral attacks on ongoing criminal proceedings absent some showing that there is no adequate remedy available to the plaintiff within the ongoing criminal proceeding ( e.g. , a motion to dismiss the indictment or disqualify the prosecutor).

And there is no dispute that equitable restraint applies with equal force to suits to enjoin ongoing federal criminal proceedings — where there will often be far less of a concern about the availability of an adequate remedy within the criminal process.

In that regard, what is striking about the complaint in Manafort v. U.S. Dep't of Justice is what it has to say about the absence of a meaningful remedy for Manafort's claims within his ongoing criminal proceeding: Absolutely nothing.

Instead, Manafort is asking a different judge of the same district court to provide relief that is unquestionably available to him, if appropriate, from the trial judge, without any allegation of the type of bad faith or misconduct by that court (to say nothing of irreparable harm stemming from the same) that would justify an exception.

I'd put this scenario on my Federal Courts exam this semester, but it's far too easy an issue… Whether or not there's any substance to Manafort's claims (I'm more than a little skeptical), this particular complaint offers nary an argument about why it's not barred by equitable restraint.

Renato Mariotti is a partner at Thompson Coburn LLP , and was a federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney's Office.

Steve Vladeck is co-editor-in-chief of Just Security. He is a professor of law at the University of Texas School of Law, a senior editor of the Journal of National Security Law & Policy , a contributing editor to the Lawfare blog, a Distinguished Scholar at the Robert S. Strauss Center for International Security and Law, a fellow of the Fordham University School of Law Center on National Security, the Supreme Court Fellow for the Constitution Project and an elected member of the American Law Institute.