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Thu May 17, 2018, 05:27 PM

 

An IMHO important passage in the recent DC Manafort court opinion

As you may recall, there are two criminal proceedings going on against Paul Manafort - one in the US District Court for the District of Columbia (The DCDC), and one in the US District Court for the Eastern District of Virginia (The EDVA).

Both prosecutions were brought by Mueller, but involve different sets of transactions and consequent alleged crimes arising from Manafort's profitable relationships with the former Russian-backed government of Ukraine.

In both cases, Manafort's defense has filed motions seeking to dismiss the indictments on the grounds that they were out of scope of the special counsel's mandate, that relevant DoJ guidelines were not followed, and various other theories.

There was something of a mass freakout at DU over the recent hearing on these similar motions in the EDVA. While the EDVA still has that motion under advisement, the DCDC issued its decision on the motion.

The DCDC found the indictment in that case to be within the mandate, that DoJ internal rules do not create third party rights, and that, in any event, the relevant DoJ guidelines were followed.

The full decision is here:

https://www.courtlistener.com/recap/gov.uscourts.dcd.190597/gov.uscourts.dcd.190597.301.0_2.pdf

...and it is organized by topic:

I. The investigation of Manafort was an appropriate exploration of a “link” between a
person associated with the campaign and the Russian government.

II. The regulations do not create judicially enforceable rights.

III. The Appointment Order comports with the regulations.

IV. The Special Counsel received a specific factual statement of the matters assigned to
him, and the Acting Attorney General was the one who decided, as the regulations
require, that the Special Counsel’s jurisdiction includes the matters in the indictment.


Section II, starting at page 20, is interesting in part because it is not necessary. Because in Section III, the court finds that the appointment order was compliant with the regulations, then whether the DoJ internal rules create rights that outside parties may rely upon doesn't matter.

There are two reasons that a court will do something like that. One reason would be that if, on appeal, the appellate court were to find that part III was not valid, then part II provides the cure to that. In other words, even if on review it was determined that the appointment order did NOT comport with the DoJ internal rules, part II is a backstop which says "but it doesn't matter anyway".

The other reason a court may do that, is what makes Section II potentially interesting.

It starts with the conclusion:

Furthermore, Manafort cannot move to dismiss his complaint under the Federal Rules of
Criminal Procedure based upon a claimed violation of the Department of Justice Special Counsel
Regulations because those regulations are not substantive rules that create individual rights; they
are merely statements of internal departmental policy. This is an independent basis to deny his
motion.


...and then proceeds to take a look at the rule in question to see whether they are "substantive" rules, or rules of DoJ policy, organization, etc....

A close review of the regulations reinforces the conclusion that they are internal rules
intended solely to guide the Attorney General and other Department personnel. The regulations
describe the circumstances that may warrant the appointment of a Special Counsel, the alternatives
the Attorney General may consider when those circumstances arise, and the qualifications an
individual appointed to serve must bring to the task. 28 C.F.R. §§ 600.1–03. The regulation
singled out in Manafort’s motion statesthat the Attorney General will establish a Special Counsel’s
jurisdiction, and it provides that it will be the Attorney General who will determine whether to
grant additional jurisdiction or assign new matters that arise to the Special Counsel or elsewhere
within the Department


Before delving into applicable specific cases, the court makes a fairly broad and important statement:

The case law also makes it clear that internal agency regulations that were not required by
the Constitution or a statute are not enforceable by the defendant in a criminal prosecution.
See
United States v. Caceres, 440 U.S. 741, 749–54 (1979) (holding that IRS’s violation of internal
IRS electronic surveillance regulations did not require the court to suppress a tape recording of a
call between the taxpayer and the agency during the taxpayer’s trial for bribery); United States v.
Weisz, 718 F.2d 413, 435 n.137 (D.C. Cir. 1983) (rejecting defendant’s suggestion that failure to
comply with FBI regulations can require reversal of a conviction).


In other words, any internal DoJ regulations that aren't there in order to safeguard a particular Constitutional or statutory right of a criminal defendant, simply do not matter.

The court then proceeds to note that Manafort's defense took a line out of context from the dispute over whether Nixon could broadly assert executive privilege against the subpoena of a special prosecutor, and takes some time to flesh out why the defense's citation was out of context. Manafort had quoted a line from US v. Nixon to the effect that DoJ regulations "have the force of law"...


In support of this argument, Manafort lifts one sentence from United States
v. Nixon, 418 U.S. 683 (1974), the case in which the Supreme Court decided that a President’s
claim of executive privilege could be overcome by a prosecutor’s showing of need.
Def.’s Mot.
at 22. In that opinion, the Court stated that the regulation appointing the Watergate Special
Prosecutor had “the force of law.”
Def.’s Mot. at 22–23, citing Nixon, 418 U.S. at 695. But Nixon
concerned a different regulation promulgated for a different purpose, and the case does not stand
for the proposition that the regulations at issue should be read to confer any enforceable rights on
the defendant.

In Nixon, the Attorney General had issued a regulation delegating authority to a Special
Prosecutor to investigate “all offenses arising out of the 1972 Presidential Election.” 418 U.S. at
694 n.8. As part of his investigation, the Special Prosecutor issued a subpoena to the President for
the tape recordings of conversations in the Oval Office, and the President resisted compliance on
the basis of executive privilege. Id. at 686–89. When the Special Prosecutor filed an action to
enforce the subpoena in court, the President argued that the court had no jurisdiction to hear the
case because the assertion of privilege was an intra-branch dispute between the President and a
subordinate involving a political question. Id. at 692–93. President Nixon also argued that because
the Executive Branch has exclusive authority and absolute discretion to decide whether to
prosecute a case, the President, as head of the branch, has the final word in determining what
evidence is to be used in any particular criminal case. Id.


The Supreme Court rejected the President’s arguments. In reaching its decision that the
judiciary had the responsibility under the Constitution to decide the question of the availability of
the privilege, it began by eschewing the parties’ formulations and characterizing the nature of the
dispute for itself. The starting point of the analysis was that the evidence was being sought in
connection with a pending criminal prosecution being brought in the name of the United States.
Nixon, 418 U.S. at 694. The Attorney General of the United States had, pursuant to the federal
statutes that authorized him to appoint subordinate officials, delegated the authority to represent
the United States in that case to the Special Prosecutor. Id. And given “these specially delegated
duties,” the regulation gave the Special Prosecutor “explicit power” to address issues unique to
“these particular matters,” such as “to contest the invocation of executive privilege.”
Id. at 694–
95.

The Court then said, “[s]o long as this regulation is extant, it has the force of law,” and the
Executive Branch was bound by it. Id. at 695.


In other words, the relevant regulation having "the force of law" was the regulation allowing appointment of the special prosecutor itself, but that, once the special prosecutor was appointed, the special prosecutor had the power to:

address issues unique to "these particular matters," such as "to contest the invocation of executive privilege."

Okay, so why am I fascinated by this passage of the decision?

Who can name some OTHER statement of DoJ policy which has received a lot of attention lately as to whether it does, or does not, establish a right on which a prospective defendant might attempt to rely?

"The case law also makes it clear that internal agency regulations that were not required by
the Constitution or a statute are not enforceable by the defendant in a criminal prosecution."


Let that sink in for a bit.

11 replies, 1589 views

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Replies to this discussion thread
Arrow 11 replies Author Time Post
Reply An IMHO important passage in the recent DC Manafort court opinion (Original post)
jberryhill May 2018 OP
GusBob May 2018 #1
jberryhill May 2018 #2
Kirk Lover May 2018 #3
malaise May 2018 #4
jberryhill May 2018 #5
Kirk Lover May 2018 #6
pnwmom May 2018 #8
jberryhill May 2018 #9
dhill926 May 2018 #7
panader0 May 2018 #10
Duppers May 2018 #11

Response to jberryhill (Original post)

Thu May 17, 2018, 05:42 PM

1. So for Guiliani to claim that Trump cannot be indicted....

Is that what you are implying?

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Response to GusBob (Reply #1)

Thu May 17, 2018, 05:51 PM

2. Ding, ding, ding...

 



IMHO, she went out of her way to say that, and in the context of the Nixon dispute in which there were unusual and exceptional circumstances.

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Response to jberryhill (Original post)

Thu May 17, 2018, 06:04 PM

3. Jberry be busy...I command this be kicked. nt

 

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Response to Kirk Lover (Reply #3)

Thu May 17, 2018, 06:07 PM

4. and Rec'd n/t

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Response to Kirk Lover (Reply #3)

Thu May 17, 2018, 06:30 PM

5. I'm wondering if I should have titled it "Judge Rules Trump Can Be Indicted"

 

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Response to jberryhill (Reply #5)

Thu May 17, 2018, 06:32 PM

6. No reason to wonder. Jberry get busy! nt

 

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Response to jberryhill (Reply #5)

Thu May 17, 2018, 08:22 PM

8. Yes, please!

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Response to pnwmom (Reply #8)

Thu May 17, 2018, 08:30 PM

9. Well, let's see what the EDVA does with it

 


The DCDC and the EDVA have separate appeal routes (Oddly, DC is its own circuit in addition to its own district).

The EDVA can avoid the issue, and the DCDC has provided a first crack at it.

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Response to jberryhill (Original post)

Thu May 17, 2018, 07:12 PM

7. gotta kick this...

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Response to jberryhill (Original post)

Thu May 17, 2018, 08:35 PM

10. Thanks for this---very educational.

Recced.

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Response to jberryhill (Original post)

Thu May 17, 2018, 11:17 PM

11. K & R

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