Wednesday, April 4, 2018
The Government's 53 page Memorandum (with an additional 230 pages of exhibits), Response in Opposition to Motion to Dismiss, in United States v. Manafort provides another window into the prosecution of Paul Manafort. In his motion to dismiss, Manafort challenges the validity of the Acting Attorney General’s order appointing the Special Counsel and defining the Special Counsel’s jurisdiction (Office of the Deputy Att’y Gen., Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters, May 17, 2017), available here.
According to the Government, any constitutional claims underlying Manafort's arguments regarding the current Special Counsel Appointment Order result from a "fundamental misunderstanding of the way in which this regime differs from the former Independent Counsel Act." In Morrison v. Olson, 487 U.S. 654 (1988), while the Court sustained the constitutionality of the Independent Counsel Act in which independent counsel was appointed by the judicial branch, the Court held that the power of the judicial branch to determine that independent counsel's own powers (and jurisdiction) was valid only to the extent of the appointment power. Thus, as the Government's memo phrases it, to "ensure that the court’s jurisdiction-defining power remained “truly ‘incidental’” to its constitutional justification," the Court in Morrison held that “the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General’s investigation and request for the appointment of the independent counsel in the particular case.”
But the Independent Counsel Act is expired. And the Special Counsel was not appointed by a court, but by the Justice Department. Thus, according to the Government's Memorandum, "Unlike the former statutory scheme that authorized court-appointed independent counsels, the definition of the Special Counsel’s authority remains within the Executive Branch and is subject to ongoing dialogue based on sensitive prosecutorial considerations" In other words, there are no constitutional considerations - - - and certainly no separations of powers issues - - - in "the wholly Executive-Branch regime created by the Special Counsel regulations" under which Special Counsel was appointed and directed.
For LawProfs looking for a relatively succinct discussion of the Special Counsel, this Government memo is a good example, especially given its clear and crisp writing style.
[image: Caricature of Paul Manafort by Donkey Hotey via]