Case 1:17-cr-00201-ABJ Document 272 Filed 04/12/18 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
PAUL J. MANAFORT, JR.,

Defendant.

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Criminal No. 1:17-cr-00201-ABJ
Judge Amy Berman Jackson
ORAL ARGUMENT REQUESTED

DEFENDANT’S REPLY IN SUPPORT OF HIS
MOTION TO DISMISS THE SUPERSEDING INDICTMENT

Kevin M. Downing
(D.C. Bar #1013894)
601 New Jersey Avenue, N.W.
Suite 620
Washington, D.C. 20001
(202) 754-1992
kevindowning@kdowninglaw.com
Thomas E. Zehnle
(D.C. Bar #415556)
601 New Jersey Avenue, N.W.
Suite 620
Washington, D.C. 20001
(202) 368-4668
tezehnle@gmail.com
Counsel for Defendant Paul J. Manafort, Jr.
April 12, 2018

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TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................................... 1 
I. 

II. 

III. 

IV. 

The Appointment Order Exceeds the Acting Attorney General’s Authority Under
the Special Counsel Regulations ......................................................................................... 1 
A. 

The After-the-Fact Memorandum Confirms That the Jurisdiction Granted
by the Appointment Order Exceeded the Acting Attorney General’s
Authority ..................................................................................................................2 

B. 

Assurances of “Oversight” Are Insufficient ............................................................6 

C. 

The Special Counsel’s Textual Arguments Fail ......................................................7 

The Special Counsel Regulations Impose Binding Limits on the Acting Attorney
General’s Authority .......................................................................................................... 10 
A. 

The Acting Attorney General’s Appointment Authority Is Limited by 28
U.S.C. § 515 and the Special Counsel Regulations Implementing That
Statute ....................................................................................................................10 

B. 

The “Individual Rights” Disclaimer Does Not Preclude This Court from
Assessing Prosecutorial Authority and Its Own Jurisdiction .................................13 

The Special Counsel’s Investigation Exceeds the Appointment Order’s Purported
Grants of Jurisdiction ........................................................................................................ 16 
A. 

The Charges Could Not Have “Directly Arisen” from the Investigation
into Alleged Coordination Between the Trump Campaign and Russian
Officials..................................................................................................................16 

B. 

The Prosecution Is Unrelated to Any Alleged Coordination Between the
Trump Campaign and the Russian Government ....................................................18 

Dismissal Is Required ....................................................................................................... 19 
A. 

This Court Lacks Jurisdiction Because the Special Counsel Was
Appointed in Excess of Authority..........................................................................19 

B. 

The Special Counsel’s Participation in the Grand Jury Proceedings Was
Impermissible as Well............................................................................................21 

C. 

The Special Counsel’s Participation in the Grand Jury Proceedings
Prejudiced Mr. Manafort ........................................................................................22 

CONCLUSION ............................................................................................................................. 25

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TABLE OF AUTHORITIES
Page(s)
Allentown Mack Sales & Serv., Inc. v. NLRB,
522 U.S. 359 (1998) .................................................................................................................12
Bank of Nova Scotia v. United States,
487 U.S. 250 (1988) .....................................................................................................23, 24, 25
Barrick Goldstrike Mines Inc. v. Browner,
215 F.3d 45 (D.C. Cir. 2000) ...................................................................................................13
Caha v. United States, 152 U.S. 211 (1894) ..................................................................................25
Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006) ...........................................................................17
Erie Blvd. Hydropower, LP v. FERC,
878 F.3d 258 (D.C. Cir. 2017) .................................................................................................11
In re Espy, 80 F.3d 501 (D.C. Cir. 1996).......................................................................................17
In re Espy, 145 F.3d 1365 (D.C. Cir. 1998).............................................................................13, 17
Gustafson v. Alloyd Co., 513 U.S. 561 (1995).................................................................................6
Knapp Med. Ctr. v. Hargan,
875 F.3d 1125 (D.C. Cir. 2017) ...............................................................................................15
Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682 (1949) ...........................................................................................................10, 14
Lopez v. FAA, 318 F.3d 242 (D.C. Cir. 2003) ...............................................................................11
Mapp v. Ohio, 367 U.S. 643 (1961) .................................................................................................9
Mehle v. Am. Mgmt. Sys., Inc.,
172 F. Supp. 2d 203 (D.D.C. 2001) .........................................................................................20
Morrison v. Olson, 487 U.S. 654 (1988) ...................................................................................5, 17
Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987)..........................................................................11
People v. Munson, 150 N.E. 280 (Ill. 1925) ..................................................................................25
In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987) ...........................................................................11
State v. Hardy, 406 N.E.2d 313 (Ind. Ct. App. 1980)....................................................................25
United States v. Armstrong, 517 U.S. 456 (1996) .....................................................................7, 16

ii

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United States v. Bennett, 464 F. App’x 183 (4th Cir. 2012) ..........................................................21
United States v. Briggs, 514 F.2d 794 (5th Cir. 1975)...................................................................14
United States v. Fowlie, 24 F.3d 1059 (9th Cir. 1994) ..................................................................24
United States v. Groos, 616 F. Supp. 2d 777 (N.D. Ill. 2008) .......................................................14
United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006) ............................................................11
United States v. Male Juvenile, 148 F.3d 468 (5th Cir. 1998) .......................................................20
United States v. Nixon, 418 U.S. 683 (1974) .....................................................................11, 12, 21
United States v. Plesinski, 912 F.2d 1033 (9th Cir. 1990) .............................................................24
United States v. Providence Journal Co., 485 U.S. 693 (1988) ........................................13, 20, 21
United States v. Romans, 823 F.3d 299 (5th Cir. 2016) ................................................................20
United States v. Rosenthal, 121 F. 862 (C.C.S.D.N.Y. 1903) .................................................15, 21
United States v. Sells Eng’g, 463 U.S. 418 (1986) ........................................................................25
United States v. Tucker, 78 F.3d 1313 (8th Cir. 1996) ..................................................................15
United States v. Vance, 256 F.2d 82 (6th Cir. 1958) .....................................................................24
Wilderness Soc’y v. Norton, 434 F.3d 584 (2006) .........................................................................12
STATUTES AND RULES
18 U.S.C. § 3231 ............................................................................................................................21
28 U.S.C. § 510 ..............................................................................................................................22
* 28 U.S.C. § 515 ...................................................................................................................... passim
28 U.S.C. § 515(a) ........................................................................................................10, 20, 21, 22
28 U.S.C. § 516 ..............................................................................................................................21
44 U.S.C. § 1510(a) ........................................................................................................................12
Fed. R. Crim. P. 1(b)(1) .................................................................................................................22
Fed. R. Crim. P. 1(b)(1)(A)............................................................................................................22
Fed. R. Crim. P. 1(b)(1)(D)............................................................................................................22
iii

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Fed. R. Crim. P. 16(d) ....................................................................................................................25
Fed. R. Crim. P. 6 ..........................................................................................................................22
Fed. R. Crim. P. 7 ..........................................................................................................................22
REGULATIONS
28 C.F.R. § 600 ..............................................................................................................................11
28 C.F.R. § 600.1(a) .........................................................................................................................5
28 C.F.R. § 600.3 .....................................................................................................................11, 22
28 C.F.R. § 600.4 ...................................................................................................................3, 5, 22
* 28 C.F.R. § 600.4(a) ............................................................................................................... passim
28 C.F.R. § 600.4(b) ...............................................................................................................2, 8, 10
28 C.F.R. § 600.6 .............................................................................................................................4
28 C.F.R. § 600.7 ...........................................................................................................................12
28 C.F.R. § 600.8(b) .........................................................................................................................4
28 C.F.R. § 600.10 .......................................................................................................10, 13, 14, 15
ADMINISTRATIVE MATERIALS
* Office of the Deputy Att’y Gen., Appointment of Special Counsel To Investigate Russian
Interference with the 2016 Presidential Election and Related Matters
(May 17, 2017)................................................................................................................. passim
* Office of Special Counsel, 64 Fed. Reg. 37038 (July 9, 1999) .............................................. passim
OTHER AUTHORITIES
Carol D. Leonnig, Tom Hamburger & Rosalind S. Helderman, FBI Conducted Predawn
Raid of Former Trump Campaign Chairman Manafort’s Home, WASH. POST
(Aug. 9, 2017) ...........................................................................................................................3

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INTRODUCTION
Defendant Paul J. Manafort, Jr. respectfully submits this reply in support of his motion to
dismiss the Superseding Indictment.

Far from demonstrating that the Special Counsel has

authority to bring those charges, the Special Counsel’s opposition confirms the opposite. As a
result, this Court lacks jurisdiction, and the Superseding Indictment must be dismissed.
I.

THE APPOINTMENT ORDER EXCEEDS THE ACTING ATTORNEY GENERAL’S AUTHORITY UNDER THE SPECIAL COUNSEL REGULATIONS
The text of the Special Counsel Regulations is clear: The Acting Attorney General has

authority to grant the Special Counsel “[o]riginal jurisdiction” to investigate “a specific factual
. . . matter.” 28 C.F.R. § 600.4(a) (“The Special Counsel will be provided with a specific factual
statement of the matter to be investigated.” (emphasis added)); see Opp. 13 (“The Special Counsel regulations structure the definition of a Special Counsel’s jurisdiction.”). Paragraphs (b)(i)
and (b)(iii) of the Appointment Order identify such “original jurisdiction.” They authorize the
Special Counsel to investigate “any links and/or coordination between the Russian government
and individuals associated with the campaign of President Donald Trump,” as well as efforts to
obstruct that investigation. Appointment Order ¶¶ (b)(i), (iii). But paragraph (b)(ii) of the
Appointment Order goes further, issuing broad jurisdiction to investigate and prosecute “any
matters that arose or may arise directly from the investigation.” Id. ¶ (b)(ii) (emphasis added).
The Special Counsel does not claim that paragraph (b)(ii) is a “specific factual statement
of the matter to be investigated.” To the contrary, he asserts that paragraph (b)(ii) was meant to
encompass “matters that were not necessarily known or fully understood at the time of the
original appointment.” Opp. 27. That is the opposite of a “specific factual statement”—it is the
sort of vague catch-all the Regulations do not authorize. The Regulations, moreover, provide a
mechanism under which the Acting Attorney General can grant jurisdiction over matters not

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previously “known . . . at the time of the original appointment”: The Acting Attorney General
can grant the Special Counsel “additional jurisdiction” following consultation.

28 C.F.R.

§ 600.4(b); see Mot. 5-6. But the Special Counsel does not assert that the Acting Attorney
General ever granted him “additional jurisdiction” as permitted by 28 C.F.R. § 600.4(b).
The Special Counsel thus effectively concedes the case. The prosecutorial authority
exercised by the Special Counsel in the Superseding Indictment is not within a specific factual
statement that can confer “original jurisdiction.” And the Special Counsel was never given
“additional jurisdiction.” While the Special Counsel makes a series of arguments about other
events to support his conduct, none comes close to showing a valid grant of prosecutorial
authority to bring the Superseding Indictment.
A.

The After-the-Fact Memorandum Confirms That the Jurisdiction Granted
by the Appointment Order Exceeded the Acting Attorney General’s
Authority

The Special Counsel’s primary argument is that, months after the Appointment Order
and unauthorized paragraph (b)(ii) issued, the Acting Attorney General “clarified” the scope of
the Special Counsel’s jurisdiction. Opp. 12. He points to an August 2, 2017 Memorandum from
the Acting Attorney General that, according to the Special Counsel, “specifically confirm[s]”
that the “charged conduct is clearly included within [his] jurisdiction.”

Opp. 17; see id.

Attachment C (“Mem.”). The Memorandum, however, confirms that paragraph (b)(ii) exceeds
the Acting Attorney General’s authority—that far from being a “specific factual statement” of
the matter to be investigated, it was a blank check to be filled in after-the-fact.
The August 2, 2017 Memorandum asserts that paragraph (b)(ii) of the Appointment
Order “was worded categorically in order to permit its public release,” and that it “provides a
more specific description of [the Special Counsel’s] authority” under that Order. Mem. 1 (emphasis added). The Memorandum then lists issues encompassed within “matters that arose or
2

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may arise directly from the investigation”: (i) “crimes arising out of payments” Mr. Manafort
“received from the Ukrainian government before and during the tenure of President Viktor Yanukovych,” and (ii) other allegations contained in redacted paragraphs. Id. at 1-2. Those matters,
the Memorandum asserts, “were within the scope of the Investigation at the time of [the Special
Counsel’s] appointment and are within the scope of the Order.” Id. at 1 (emphasis added).
That provision confirms that paragraph (b)(ii) represents a capacious catch-all that was
beyond the Acting Attorney General’s authority to grant under the Special Counsel Regulations.
The vague phrase “matters that arose or may arise directly” came to include, months after the
fact, a potpourri of purported misdeeds. If the Acting Attorney General did not want to include
certain information in the Appointment Order, he could have issued a separate, confidential grant
of “original” jurisdiction with the requisite specific factual statement; or he could later have
issued a confidential order granting “additional” jurisdiction over specified matters. See 28
C.F.R. § 600.4. But nothing in the Special Counsel Regulations authorizes vague grants of “and
anything else” authority as part of original jurisdiction, followed by a “clarification” of included
matters nearly three months into the Special Counsel’s investigation—much less issuance of
such “clarification” well after the Special Counsel had executed search warrants on Mr.
Manafort’s home. See Carol D. Leonnig, Tom Hamburger & Rosalind S. Helderman, FBI
Conducted Predawn Raid of Former Trump Campaign Chairman Manafort’s Home, WASH.
POST (Aug. 9, 2017) (“FBI agents raided” Manafort’s home “on July 26, signal[ing] an
aggressive new approach by special counsel Robert S. Mueller III.”). The Special Counsel
Regulations authorize grants of original jurisdiction that are limited to a “specific factual
statement”; they do not authorize unbounded grants followed by after-the-fact clarifications. 28

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C.F.R. § 600.4(a); see Office of Special Counsel, 64 Fed. Reg. 37038, 37038-39 (July 9, 1999).1
The Special Counsel’s position defies the purpose of the Special Counsel Regulations.
Following a disastrous experiment with unaccountable independent counsels, Congress undertook a bipartisan project to consider how to prevent similar abuses going forward. See Mot. 3-5.
Born of that project, the Special Counsel Regulations accommodated the desirability of appointing outside “special counsel” where ordinary prosecutors may have conflicts of interest, with the
need to ensure that ultimate responsibility rests with politically accountable officials. See Office
of Special Counsel, 64 Fed. Reg. at 37038. The requirement that the Acting Attorney General
provide a “specific factual statement” of the matters to be investigated, and approve expansions
of jurisdiction, ensures political accountability. The Special Counsel’s position is anathema to
those goals. It would permit the Acting Attorney General to grant the Special Counsel sweeping
jurisdiction at the outset, without meaningful limits; fail to communicate purported limits on that
jurisdiction to anyone; and then later decide, at an unspecified time, what is actually within the
grant of original jurisdiction. In this case, for example, no one can be sure what else might

1

The Special Counsel suggests (at 2) that the Acting Attorney General had “authority to clarify
[his] jurisdiction during regular consultation.” But the Memorandum was not “clarify[ing]”
some purported ambiguity. It was an effort to insert additional content that simply was not there.
The original grant is so extraordinarily broad—“any matters that arose or may arise”—as to be
clearly unauthorized. Appointment Order ¶ (b)(ii). The Memorandum represents a months-afterthe-fact effort to provide additional material found nowhere in that broad grant. Moreover, the
regulations the Special Counsel cites, 28 C.F.R. §§ 600.6, 600.8(b), do not authorize supposed
“clarification.” Section 600.6 provides that the Special Counsel “shall exercise, within the scope
of his or her jurisdiction, the full power and independent authority to exercise all investigative
and prosecutorial functions of any United States Attorney,” and “shall determine whether and to
what extent to inform or consult with the Attorney General or others within the Department.” Id.
§ 600.6. And the only arguably relevant provision of § 600.8 provides that “[t]he Special
Counsel shall notify the Attorney General of events in the course of his or her investigation in
conformity with the Departmental guidelines with respect to Urgent Reports.” Id. § 600.8(b).
None of those provisions authorizes the Acting Attorney General to “clarify” the scope of the
Special Counsel’s original jurisdiction mid-stream.

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retroactively be deemed part of the original grant, no matter how far removed from the mission
of investigating alleged coordination between the Trump campaign and the Russian government.
In the Special Counsel’s view, the Acting Attorney General can always issue a later
“clarification,” making virtually anything that can be stuffed within the language of paragraph
(b)(ii) (i.e., virtually anything) fair game for the Special Counsel.

The Acting Attorney

General’s departure from the limits on his appointment authority—attempting to fill in the blanks
later—is particularly problematic here.

Special counsel are reserved for cases involving

“conflict[s] of interest . . . or other extraordinary circumstances.” 28 C.F.R. § 600.1(a). But no
such circumstances prevented the DOJ from investigating the charged conduct—as evidenced by
the fact that the DOJ in fact investigated it, presumably in 2014. See p. 22-23, infra.
The Special Counsel Regulations have a specific structure: The Acting Attorney General
can grant only specific, limited original jurisdiction; he can add further matters only through
specific grants of additional jurisdiction. See 28 C.F.R. § 600.4. As a result, the Acting Attorney
General—a politically accountable officer—is responsible for each grant of jurisdiction before it
is exercised. In the Special Counsel’s words, “a Special Counsel’s jurisdiction is defined at the
outset.” Opp. 22. But the Special Counsel’s position would turn that on its head, allowing the
Acting Attorney General to deputize the Special Counsel’s office as a fourth branch of
government with broad, independent authority, subject to after-the-fact approval (or plausible
deniability if the need arises). See Opp. 24-25 (explaining separation-of-powers and politicalunaccountability problems under independent counsel statute). But the creation of that sort of
“mini-Executive”—“operating in an area where so little is law and so much is discretion, . . .
intentionally cut off from the unifying influence of the Justice Department, and from the
perspective that multiple responsibilities provide”—is what the Special Counsel Regulations
were designed to prevent. Morrison v. Olson, 487 U.S. 654, 732 (1988) (Scalia, J., dissenting).
5

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B.

Assurances of “Oversight” Are Insufficient

Invoking the Acting Attorney General’s testimony before Congress, the Special Counsel
asserts that he has been subject to politically accountable “oversight.”

Opp. 16.

Those

assurances are legally and factually insufficient.
1.

The Special Counsel’s reassurances are legally irrelevant. The Special Counsel

Regulations do not say that the Acting Attorney General can disregard limits on his appointment
authority so long as he offers mid-prosecution assurances of oversight. The Special Counsel
Regulations are clear and unequivocal: The Acting Attorney General is authorized to grant
special counsel “original jurisdiction” only for the “specific . . . factual matter” identified. 28
C.F.R. § 600.4(a); see Mot. 5, 15. The notification and consultation requirements the Special
Counsel identifies (at 13-14) impose obligations in addition to that specific limit on authority.
The Special Counsel cannot choose the provisions of the Special Counsel Regulations he likes
and ignore the others. See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995).
2.

Factually, the supposed reassurances of oversight fall short.

For example,

repeatedly asked whether he ever “expand[ed] the scope of the original . . . jurisdiction” set out
in the Appointment Order, the Acting Attorney General testified that he did not know. Opp.
Attachment A (“Rosenstein Testimony”) at 29, 31 (“I’ll need to check and get back to you as to
whether or not we considered particular issues to be a clarification [of the Special Counsel’s
original jurisdiction] or an expansion.”). To the extent the testimony is relevant, it demonstrates
that the grant of original jurisdiction in the Appointment Order was in excess of the Acting
Attorney General’s authority: The Acting Attorney General testified that “the specific matters
[to be investigated] are not identified in the order.” Id. at 29. That is exactly the opposite of
what the Special Counsel Regulations require: “The Special Counsel will be provided with a
specific factual statement of the matter to be investigated.” 28 C.F.R. § 600.4(a).
6

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Tellingly, the Special Counsel has produced no evidence, aside from the August 2
Memorandum, of any communications between the Special Counsel and the Acting Attorney
General. The Special Counsel cannot rely on unsupported representations about “dialogue
between the Acting Attorney General and the Special Counsel” to prove “oversight” by the
Acting Attorney General instead of actually producing that evidence. Opp. 8. At the very least,
Mr. Manafort is entitled to discovery about those other communications.
3.

Finally, the Special Counsel insists that he “can be presumed to carry out his

responsibilities and confer with the Attorney General if he encounters the need.” Opp. 15. This
case concerns the Acting Attorney General’s authority to issue the Appointment Order—
paragraph (b)(ii) in particular—itself. The promise of presumably “confer[ring]” if there is
“need” cannot overcome the absence of authority.
The presumption of regularity applies only “in the absence of clear evidence . . . that
[prosecutors] have [im]properly discharged their official duties.” United States v. Armstrong,
517 U.S. 456, 464 (1996) (quotation marks omitted). This case begins and is replete with
irregularity. The Acting Attorney General admitted that “the specific matters [to be investigated]
are not identified in the [Appointment] order.” Rosenstein Testimony 29. The Special Counsel
admits that the matters encompassed by paragraph (b)(ii) of the Order “were not necessarily
known or fully understood at the time of the original appointment.” Opp. 27. The Special
Counsel Regulations require the opposite—for the Special Counsel’s jurisdiction to be “defined
at the outset.” Id. at 22. Here, the Acting Attorney General exceeded his authority by purporting
to grant undefined original jurisdiction that extended beyond any “specific factual statement of
the matter to be investigated.” See pp. 1-5, supra. Regularity this is not.
C.

The Special Counsel’s Textual Arguments Fail

The Special Counsel’s effort to address the Regulations’ text falls short.
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1.

“The regulations,” the Special Counsel asserts, “do not provide that the factual

statement must be in an appointment order or otherwise made public.” Opp. 13. But the Regulations are clear that the specific factual statement of jurisdiction at least must be set forth. Here,
the Acting Attorney General did not do that in the Appointment Order or any contemporaneous
document. The Appointment Order itself instead includes an impermissible catch-all that cannot
qualify as a specific factual statement. See pp. 1, 3, supra. That catch-all is precisely what the
Regulations do not permit—carte blanche at the outset. See 28 C.F.R. § 600.4(a)-(b) (requiring
the Special Counsel to ask for additional jurisdiction item-by-item). The August 2 Memorandum
confirms the expansive scope of that grant. See pp. 2-5, supra.
The Special Counsel Regulations, moreover, distinguish between “additional” and
“original jurisdiction.”

The Regulations authorize the Acting Attorney General to grant

“[o]riginal jurisdiction” that encompasses the “specific factual statement of the matter to be
investigated.” 28 C.F.R. § 600.4(a). If the Acting Attorney General wishes to authorize the
investigation of “unrelated crimes by targets of [the Special Counsel’s] investigation,” Office of
Special Counsel, 64 Fed. Reg. at 37039 (emphasis added), he must grant the Special Counsel
“additional jurisdiction” to investigate those matters, 28 C.F.R. § 600.4(b).

The Special

Counsel’s view—that a delimited grant of “original jurisdiction” can be filled in through
“clarification” later—renders the provision for grants of “additional jurisdiction” meaningless.
Regardless, the Acting Attorney General must “establish[ ]” the Special Counsel’s original jurisdiction by “provid[ing]” a “specific factual statement of the matter to be investigated,”
28 C.F.R. § 600.4(a), so as to “define[ ]” the “Special Counsel’s jurisdiction . . . at the outset,”
Opp. 22. Here, the Special Counsel offers no evidence that the specific matters identified in the
Memorandum were “provided”—or even communicated to the Special Counsel—before
appearing in the August 2, 2017 Memorandum, months after the appointment. The Special
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Counsel studiously avoids making any such representation. See, e.g., Opp. 14 ([T]he Acting
Attorney General has . . . required consultation about ‘additional [unspecified] matters.’ ”); id. at
16 (“[T]he Acting Attorney General ‘discussed [unidentified specific matters] with [the Special
Counsel].’ ” (second alteration in original)). Even if the “[t]he regulations do not provide that the
factual statement must be in an appointment order or otherwise made public,” id. at 13, the specific factual statement that “establish[es]” original jurisdiction hasn’t been “provided” if it is
nowhere communicated to the Special Counsel before he begins his investigation.
2.

The after-the-fact Memorandum, moreover, was issued after the execution of four

search warrants and seizure of Mr. Manafort’s property. The later Memorandum cannot retroactively provide the “specific factual statement of the matter to be investigated” so as to authorize the warrants; jurisdiction must be established at the outset. 28 C.F.R. § 600.4(a); Opp. 22.2
3.

The Special Counsel attempts to justify grants of non-specific, uncabined original

jurisdiction as necessary to an “effective investigation.” Opp. 22. “Although a criminal investigation may start with a specific set of facts,” he urges, “the point of investigation is to explore
those facts, develop new ones, and continually reassess the direction of the inquiry.” Id. Whatever the process may be for ordinary criminal investigations, led by politically accountable employees, the Special Counsel Regulations provide a different approach for non-employee, outside
lawyers. Experience with the independent counsel statute taught that outside prosecutors, who
lack competing priorities and political accountability, have an artificial incentive to pursue any
conceivable impropriety no matter how far removed from their initial mandate. See p. 4, supra;
see also Mot. 3-7. The Special Counsel Regulations rein in those incentives by declaring that, if

2

At a minimum, the fruits of those warrants must be suppressed. See Mapp v. Ohio, 367 U.S.
643, 657 (1961).

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the Special Counsel wants to investigate a matter “beyond that specified in his or her original
jurisdiction,” he or she must obtain “additional jurisdiction.” 28 C.F.R. § 600.4(b) (emphasis
added). The Special Counsel seeks to read that structure out of the Regulations.
II.

THE SPECIAL COUNSEL REGULATIONS IMPOSE BINDING LIMITS ON
THE ACTING ATTORNEY GENERAL’S AUTHORITY
Attempting to downgrade the Special Counsel Regulations to friendly advice, the Special

Counsel asserts that the Regulations “are not[ ] enforceable by individual defendants” because
they are merely a “helpful framework.” Opp. 6, 29. But the Special Counsel Regulations are
regulations—regulations that implement a clear statutory directive and set binding limits on the
Acting Attorney General’s appointment authority. See Mot. 22-27. Because the Acting Attorney
General had no power to grant that authority, the Special Counsel lacked authority to exercise it.
Mr. Manafort is entitled to challenge the Special Counsel’s lack of authority, whether or not the
regulations create actionable private rights. See Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682, 690-91 (1949); see also Mot. 25 n.4; cf. 28 C.F.R. § 600.10.
A.

The Acting Attorney General’s Appointment Authority Is Limited by 28
U.S.C. § 515 and the Special Counsel Regulations Implementing That Statute

1.

The Special Counsel Regulations implement 28 U.S.C. § 515(a), which permits

“any attorney specially appointed by the Attorney General . . . when specifically directed by the
Attorney General, [to] conduct any kind of legal proceeding . . . , which United States attorneys
are authorized by law to conduct.”

Id. (emphasis added); see generally Office of Special

Counsel, 64 Fed. Reg. 37038 (identifying 28 U.S.C. § 515 as authority for Special Counsel
Regulations).

In the Special Counsel Regulations, the DOJ established specific limits and

requirements to implement § 515(a)’s requirement that special counsel be “specifically directed.”
The Special Counsel thus misses the point by observing that § 515(a) does not require the
Attorney General to “adopt any particular procedure or rules.” Opp. 29-30 (quotation marks
10

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omitted) (emphasis added). The fact is, the DOJ did adopt specific limits by promulgating
implementing regulations—the Special Counsel Regulations. Once it did so, those Regulations
acquired “the force of law,” binding the DOJ and its officers. United States v. Nixon, 418 U.S.
683, 695 (1974); see Erie Blvd. Hydropower, LP v. FERC, 878 F.3d 258, 269 (D.C. Cir. 2017)
(“[A]n agency is bound by its own regulations.” (quotation marks omitted)); see also Opp. 30
(quoting Nixon). Having promulgated the Special Counsel Regulations, the DOJ must abide by
them, even if § 515 did not require their promulgation in the first instance. See Lopez v. FAA,
318 F.3d 242, 246 (D.C. Cir. 2003) (Agencies must “follow their own rules, even gratuitous
procedural rules that limit otherwise discretionary actions.” (quotation marks omitted)); Padula
v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987) (similar).
The Special Counsel suggests that, “[o]n prior occasions, . . . the Attorney General or
Acting Attorney General . . . appointed Special Counsels or other specially appointed attorneys
. . . without invoking or relying on a regulation like 28 C.F.R. Part 600.” Opp. 30. Two of the
Special Counsel’s three cited examples—the Iran-Contra and Watergate special prosecutors—
were appointed decades before the Special Counsel Regulations were promulgated in 1999. See
Nixon, 418 U.S. at 694-95 (Watergate); In re Sealed Case, 829 F.2d 50, 51-53 (D.C. Cir. 1987)
(Iran-Contra). The third example—the appointment of a United States Attorney to investigate
the Valerie Plame leak—did not involve the Special Counsel Regulations because no outside
Special Counsel was appointed. United States v. Libby, 429 F. Supp. 2d 27, 29 (D.D.C. 2006);
see 28 C.F.R. § 600.3 (special counsel “selected from outside the United States Government”).
The “conferral . . .of the title ‘Special Counsel’ ” did not suggest that the already duly appointed
United States Attorney acting as “Special Counsel” was “limited by 28 C.F.R Part 600.” Libby,
429 F. Supp. 2d at 29. Besides, prior ultra vires conduct, unreviewed by the courts, does not

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authorize later ultra vires acts. See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,
374 (1998) (“[C]onsistent repetition of [a] breach can hardly mend it.”).
2.

Comparing “[t]he Special Counsel regulations” to “other internal guidance

documents promulgated to regulate DOJ procedures,” Opp. 31, the Special Counsel invokes
cases holding that the United States Attorneys’ Manual and various DOJ guidelines are
nonbinding. But the Special Counsel overlooks the critical difference. The Special Counsel
Regulations are regulations published in the Code of Federal Regulations—not non-binding
agency guidance in manuals or memoranda.

By statute, only “documents having general

applicability and legal effect ” are published in the Code of Federal Regulations; that is “[t]he
real dividing point between regulations and general statements of policy.” Wilderness Soc’y v.
Norton, 434 F.3d 584, 596 (2006) (quotation marks omitted); see 44 U.S.C. § 1510(a) (C.F.R.
contains government “documents . . . having general applicability and legal effect.”); see also 28
C.F.R. § 600.7 (special counsel to “comply with” the DOJ’s “rules [and] regulations”).
That difference is dispositive. If the DOJ had intended for the limitations now contained
in the Regulations to be nothing more than “a helpful framework,” Opp. 6, it could have included
them in a policy document or manual. But the DOJ instead chose to promulgate them as binding
regulations that “have the force of law.” Id. at 30 (quoting Nixon, 418 U.S. at 695). The DOJ is
bound by that law—and by the limitations on appointment authority the law imposes.
3.

The Special Counsel’s theory contravenes the history of the Special Counsel

Regulations. Those Regulations were promulgated to reassure Congress that the lack of political
accountability experienced under the independent counsel regime would not recur. See p. 4,
supra; see also Mot. 3-5. Having promulgated binding regulations to reassure Congress that the
excesses of the independent counsel regime would not be repeated, the Special Counsel cannot
now downgrade the Regulations to “helpful” advice. Opp. at 6. An agency may not use self12

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serving statements to strip legal effect from an otherwise binding rule. See Barrick Goldstrike
Mines Inc. v. Browner, 215 F.3d 45, 48 (D.C. Cir. 2000) (rule cannot “escape judicial review”
because agency “labels its action an ‘informal’ guideline”).
The Special Counsel’s view would render the Special Counsel Regulations a step
backwards in accountability from the independent counsel statute.

The Special Counsel

Regulations were designed “to replace the procedures set out in the Independent Counsel
[statute]” and “to address . . . the tendency of [independent counsel] investigations to sprawl
beyond the reason for their initiation” without proper political accountability. Mot. 14 (quotation
marks omitted). At least under the independent counsel statute, expansions of independent
counsels’ jurisdiction were reviewable. See Mot. 33 (citing In re Espy, 145 F.3d 1365, 1367
(D.C. Cir. 1998) (per curiam)); Opp. 25-26 (explaining review scheme).

In the Special

Counsel’s view, courts are now powerless to address whether a special counsel even has
jurisdiction. That moves us from too little accountability to even less.
B.

The “Individual Rights” Disclaimer Does Not Preclude This Court from
Assessing Prosecutorial Authority and Its Own Jurisdiction

The Special Counsel’s insistence that the Special Counsel Regulations “disclaim the
creation of individual rights,” Opp. 32 (citing § 600.10), fares no better. Mr. Manafort is not
asserting the violation of any individual right. He is not claiming the Regulations entitle him to
something. He is raising the Acting Attorney General’s and Special Counsel’s lack of authority.
See pp. 19-21, infra; see also Mot. 25 n.4. This Court is empowered—indeed, obligated—to
determine whether the Acting Attorney General validly conferred jurisdiction on the Special
Counsel to pursue the Superseding Indictment. If he did not, and the Special Counsel lacked
jurisdiction, this Court lacks jurisdiction as well. See United States v. Providence Journal Co.,
485 U.S. 693, 708 (1988).

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1.

The Supreme Court has long distinguished between actions based upon a federal

official’s “lack of delegated power,” on the one hand, and actions challenging a federal officer’s
actions as illegal, “whether or not [they] be within” the official’s “delegated powers.” Larson,
337 U.S. at 691-92. Under Larson, the former are permissible, even when the latter are not. Id.
The Special Counsel claims that Larson addressed a lack of “statutory authority,” not authority
under regulations. Opp. 34. That is a distinction without a difference. The key point in Larson
is that individuals can challenge an officer’s assertion of authority against them, whether that
limit on authority derives from a statute or a regulation with the force and effect of law. The
Special Counsel Regulations, moreover, reflect the DOJ’s interpretation of 28 U.S.C. § 515, a
statutory provision. See pp. 10-11, supra.
Nor is it true that Larson “contemplated a violation of an individual’s rights, not simply
an absence of an official’s authority.” Opp. 34. In Larson, the Supreme Court permitted the
challenge (despite claims of immunity) to determine whether the federal officers or agencies
acted “in excess of . . . authority or under an authority not validly conferred,” 337 U.S. at 690-91,
without mentioning any “contemplated . . . violation of an individual’s rights,” Opp. 34. And
although the Special Counsel points out (at 34-35) that Larson was a civil, not criminal, case,
nothing in the case suggests that unauthorized civil conduct is off-limits but unauthorized
criminal actions can be brought with impunity. Larson is often applied in the criminal context.
See, e.g., United States v. Briggs, 514 F.2d 794, 808 n.25 (5th Cir. 1975) (invoking Larson on
motion to strike language from indictment); United States v. Groos, 616 F. Supp. 2d 777, 785 n.8
(N.D. Ill. 2008) (similar).
2.

Section 600.10 is both limited and clear. It says that that the Special Counsel

Regulations do not create individual rights. It does not say that the Regulations impose no limits
on the authority to appoint special counsel or the scope of jurisdiction special counsel can ex14

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ercise. The federal courts have a long history of determining whether they have a properly
appointed prosecutor before them. When they do not, jurisdiction is wanting. See, e.g., United
States v. Rosenthal, 121 F. 862 (C.C.S.D.N.Y. 1903); Mot. 25 n.5 (collecting cases). To contravene that tradition, the DOJ at the very least had to include language in § 600.10 that would disclaim such challenges. That it did not, disclaiming only rights-creation instead, speaks volumes.
In Mr. Manafort’s civil action, the Special Counsel urged that the Special Counsel’s lack
of authority should be raised on a motion to dismiss the Superseding Indictment. Now that such
a motion has been filed, the Special Counsel insists that the Court cannot consider the challenge
at all. But the Special Counsel cites no case holding that prosecutors can purport to wield
unchecked power and that the courts in which they attempt to exercise that power are powerless
to question their legal authority. There is a “ strong presumption that Congress intends judicial
review of administrative action.” Knapp Med. Ctr. v. Hargan, 875 F.3d 1125, 1128 (D.C. Cir.
2017) (quotation marks omitted)). Only a “clear statement of congressional intent” otherwise
can “preclude review.” Id. at 1128. There is no such clear evidence here.3
Invoking policy, the Special Counsel declares that “[s]everal of the reasons supporting
the general rule against judicial review of the exercise of prosecutorial discretion have salience
here.” Opp. 32. None of them do. The issue is not whether the Special Counsel has properly
exercised discretion that has been granted to him. It is whether the Special Counsel has valid
authority to pursue the Superseding Indictment at all. Nothing about that question raises any
3

For that reason, United States v. Tucker, 78 F.3d 1313 (8th Cir. 1996), which found referral
decisions under the independent counsel statute unreviewable, has no relevance. See Opp. 33 &
n.10. As the Special Counsel admits, the court found referrals under that statute unreviewable
due to “irrefutable” legislative history weighing against judicial review. Id.; see Tucker, 78 F.3d
at 1318. Consequently, Tucker in no way supports the assertion that an ultra vires appointment
of special counsel is beyond judicial purview even in the very court where the Special Counsel
purports to exercise unauthorized power.

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issue of discretionary decision-making. See Armstrong, 517 U.S. at 464.
III.

THE SPECIAL COUNSEL’S INVESTIGATION EXCEEDS THE APPOINTMENT ORDER’S PURPORTED GRANTS OF JURISDICTION
A.

The Charges Could Not Have “Directly Arisen” from the Investigation into
Alleged Coordination Between the Trump Campaign and Russian Officials

The Special Counsel claims that the charges in the Superseding Indictment were within
the scope of his jurisdiction as set out in paragraph (b)(ii), which purports to grant jurisdiction
over matters that “arose or may arise directly from the investigation,” Appointment Order
¶ (b)(ii). Opp. 19. For the reasons given above (at 1-10), the Acting Attorney General lacked
authority to grant such jurisdiction; the Special Counsel thus lacked authority to exercise it. See
Mot. 14-21. The Superseding Indictment in any event does not even fall within the authority that
paragraph (b)(ii) purports to grant.
First, the Superseding Indictment’s allegations do not “arise directly from” the Special
Counsel’s investigation: Lawfully appointed DOJ prosecutors knew about the alleged conduct
years ago and chose not to pursue it. See p. 22, infra; see also Mot. 30, 35. Already-known
conduct cannot “arise from” a later investigation.
otherwise.

The Special Counsel does not suggest

The Special Counsel instead drops a footnote observing that the Superseding

Indictment accuses Mr. Manafort of certain reporting violations in 2017. Opp. 42 n.13 (citing
Superseding Indictment ¶¶ 2-4, 27, 43). But that cannot rescue other charges. And even those
supposed reporting violations concern the same conduct—consulting work in Ukraine—already
known to the DOJ in July 2014. See Superseding Indictment ¶¶ 27, 43. Because that conduct
was known to the DOJ before the Special Counsel began his work, charges based on that conduct
cannot “arise directly from” his investigation. See Mot. 31-36.4
4

The charges thus could not have arisen from the FBI’s investigation either. See Opp. 3-4.

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Moreover, the phrase “arose or may arise directly from,” at a minimum, requires that any
new charges the Special Counsel brings cover conduct he learns of because of his original
investigation. Dolan v. U.S. Postal Serv., 546 U.S. 481, 489 (2006); see Mot. 32-33. And, under
Espy, the new charges must be “demonstrably related to” the original investigation. 145 F.3d at
1368 (emphasis added) (quotation marks omitted); see Mot. 33-34. The stale accusations here—
with no connection to Russian coordination—meet neither standard. See Mot. 34-36.
The Special Counsel denies Espy’s relevance, claiming it addressed “constitutional
concerns” about “the judiciary’s ability to assign prosecutorial jurisdiction” under Morrison v.
Olson. Opp. 24-25. Under the independent counsel regime, court referrals to the independent
counsel were limited, avoiding “constitutional difficulties” that might arise from judges
assigning prosecutorial authority. Id. at 25-26 (quoting In re Espy, 80 F.3d 501, 507 (D.C. Cir.
1996)). According to the Special Counsel, no such concerns exist here. Opp. 26. But this is not
an abstract constitutional case. It concerns the binding text of the Regulations and Appointment
Order. Under Espy, the “aris[ing] directly from” language in the Appointment Order limits the
Special Counsel to matters that causally resulted from and demonstrably related to the authorized
investigation. The Superseding Indictment goes well beyond that. There are important constitutional—separation-of-powers—principles at issue here. The Special Counsel Regulations
seek to ensure that a politically accountable official retains control, issue by issue, of the
investigation. Granting the Special Counsel a blank check—and construing it more broadly than
Espy would allow—threatens creation of the unaccountable fourth branch Justice Scalia warned
of in Morrison. See p. 5, supra.
The Special Counsel also objects that “constru[ing] the phrase ‘arises directly from’ ”
according to precedent “is misplaced” because the Order “is not a statute, but an instrument for
providing public notice.” Opp. 20. But the Special Counsel Regulations say nothing about
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giving “public notice.” They impose binding limits on authority to ensure “accountability” and
prevent free-wheeling investigations by individuals without political accountability. Office of
Special Counsel, 64 Fed. Reg. at 37038. There is no justification for disregarding settled judicial
usage when determining the meaning of the terms that the DOJ itself—fully aware of those
terms’ history—chose to use when establishing those limits.
B.

The Prosecution Is Unrelated to Any Alleged Coordination Between the
Trump Campaign and the Russian Government

Apparently recognizing the vulnerability of paragraph (b)(ii), the Special Counsel
alternatively argues that the conduct charged in the Superseding Indictment falls “within the
scope of paragraph (b)(i),” which extends to “ ‘coordination between the Russian government
and individuals associated with the campaign of President Donald Trump.’ ” Opp. 18 (quoting
Appointment Order ¶ (b)(i)). The Special Counsel insists that the charges against Mr. Manafort
relate to supposed “ties” between Mr. Manafort and “Russian-associated” or “Russian-backed”
persons. Opp. 18-19. But that defies the August Memorandum, which purports to categorize the
conduct in the Superseding Indictment as falling within a purported “clarifi[cation],” id. at 12 &
17 n.7, of the “categorically” worded paragraph (b)(ii), Mem. 1. And the charges cannot fall
within (b)(i) because they have nothing to do with alleged coordination between Russian
officials and the Trump campaign in any event. See Mot. 26-27.
The charges in the Superseding Indictment stem from consulting work in Ukraine that
began nearly a decade before the Trump campaign launched. They address years-old allegations
from 2008 to 2014, long before Mr. Manafort’s brief involvement in the campaign. See Mot. 2627. They cover work in Ukraine, not Russia. See id. And they say nothing about any supposed
coordination between the Russian government and the Trump campaign. See id.

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That Mr. Manafort was at one point “ ‘associated with the [Trump] campaign,’ ” Opp. 18,
is not enough. The charges have no connection to the campaign or his involvement. The
Superseding Indictment nowhere alleges that Mr. Manafort had anything to do with alleged
“coordination [with] the Russian government” while he was associated with the Trump
campaign—indeed, the Special Counsel has not even suggested that he is investigating Mr.
Manafort on that subject. Without any allegations about Russian coordination, the Superseding
Indictment cannot plausibly fall within paragraph (b)(i)’s grant of jurisdiction.
Nor does paragraph (c) of the Appointment Order, which empowers the Special Counsel
to prosecute crimes “ ‘arising from the investigation,’ ” Opp. 19, authorize the charges.
Paragraphs (b)(i)-(iii) limit the Special Counsel’s investigative authority.

The authority to

prosecute under paragraph (c) is no broader. Appointment Order ¶ (c). “[F]ollow[ing] the
money trail” from Mr. Manafort’s consulting work for Ukrainian politicians is not within the
scope of the Special Counsel’s original investigatory jurisdiction because it does not relate to the
specific factual matter of alleged coordination between the Trump campaign and Russia. Opp.
19; see p. 18, supra. It thus does not fall within the scope of the Special Counsel’s prosecutorial
jurisdiction either.
IV.

DISMISSAL IS REQUIRED
A.

This Court Lacks Jurisdiction Because the Special Counsel Was Appointed
in Excess of Authority

For over a century, courts have agreed that, absent a properly appointed prosecutor,
courts lack jurisdiction. See Mot. 21-25 & n.5. Defying that precedent, the Special Counsel
insists that “any error in assigning these matters to the Special Counsel” does not “deprive[ ] this
Court of jurisdiction.” Opp. 36. Not so. The Special Counsel lacks authority to conduct legal
proceedings unless “specifically directed by the Attorney General” or Acting Attorney General.

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28 U.S.C § 515(a).

The Special Counsel Regulations limit the Acting Attorney General’s

authority to appoint outside lawyers. See pp. 10-16, supra. Here, the Acting Attorney General
did not have authority under the Special Counsel Regulations to grant the jurisdiction set forth in
paragraph (b)(ii) at all. Because the Acting Attorney General had no power to grant that
jurisdiction, the Special Counsel lacks authority to exercise it. 28 U.S.C. § 515(a). Without “a
proper representative of the Government as a [party] in this criminal prosecution,” “jurisdiction
is lacking.” Providence Journal, 485 U.S. at 708.
The Special Counsel attempts to distinguish Providence Journal as resting on a statute
(not a regulation) that denied the special prosecutor authority to petition for a writ of certiorari.
Opp. 37. But this case is not meaningfully different: Here, the Acting Attorney General
exceeded his authority by issuing a blank check instead of the “specific[ ] direct[ions]” § 515 and
the implementing Special Counsel Regulations require. That deprives this Court of the “proper
representative of the Government” needed to secure jurisdiction. See Providence Journal, 485
U.S. at 708. The Special Counsel insists that, in Providence Journal, the Supreme Court’s
jurisdiction required “a formal step”—a petition for a writ of certiorari. Opp. 37. But this
Court’s jurisdiction requires such a step as well: The criminal jurisdiction of federal courts “is
invoked by an indictment.” United States v. Romans, 823 F.3d 299, 315 (5th Cir. 2016). If a
prosecutor lacks authority to bring that indictment—just as the special prosecutor in Providence
Journal lacked authority to file the certiorari petition—the “formal step” needed to invoke
jurisdiction is missing. 485 U.S. at 708; see Mot. 24-25 & n.5.5
5

The Special Counsel claims that, although the cases cited in the motion to dismiss refer to the
court’s “ ‘jurisdiction[ ],’ ” the cases really meant “an attorney’s statutory authority to represent
the government,” and that other cases “concerned the court’s authority to adjudicate the case.”
Opp. 38 & n.11. But these too are other ways of saying the courts lacked jurisdiction. In Mehle
v. American Management Systems, Inc., 172 F. Supp. 2d 203 (D.D.C. 2001), and United States v.

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Relying exclusively on cases that pre-date the 1999 Special Counsel Regulations, the
Special Counsel argues that, under § 515(a), “officers need not be given specific authorization to
appear in particular criminal cases.” Opp. 35-36 (citing cases from 1975 and 1976). But the
Regulations created specific limits on the power to appoint outside lawyers to ensure that all
special counsel are “specifically directed,” id. at 5, within the meaning of § 515(a). See id. at 35.
Unless the DOJ revokes the Regulations, they have the force of law and cannot be disregarded.
See Nixon, 418 U.S. at 696; see also pp. 10-16, supra.
Nor does 18 U.S.C. § 3231, which provides jurisdiction over “ ‘offenses against the laws
of the United States,’ ” cure the defect. Opp. 36 (quoting § 3231). As the Special Counsel
admits, only “ ‘officers of the [DOJ], under the direction of the Attorney General,’ ” may conduct
federal criminal proceedings. Opp. 35 (quoting 28 U.S.C. § 516). The Special Counsel is not
such an officer because his appointment exceeded the Acting Attorney General’s authority. See
pp. 1-10, supra. An invalidly appointed prosecutor cannot be an “officer of the United States.”
See, e.g., Rosenthal, 121 F. at 874 (dismissing indictments because proceedings were “conducted
without authority”). Dismissal is required. See Providence Journal, 485 U.S. at 708.
B.

The Special Counsel’s Participation in the Grand Jury Proceedings Was
Impermissible as Well

Because the Special Counsel lacks authority to bring these charges, he is also not a

Male Juvenile, 148 F.3d 468 (5th Cir. 1998), for example, the courts dismissed cases because
they were brought by unauthorized prosecutors, depriving the courts of jurisdiction. That is the
case here too. The Special Counsel lacks authority to represent the United States. As a result,
this Court lacks jurisdiction. See pp. 16-20, supra. The Special Counsel points out that, in
United States v. Bennett, 464 F. App’x 183 (4th Cir. 2012), the signature of an unauthorized
prosecutor on an indictment was harmless error. But there, too, the court confirmed the general
principle that “[a] federal court is without jurisdiction in a criminal prosecution where the
Government lacks an authorized representative.” Id. at 184-85. Besides, there can be no claim
of harmlessness here. See pp. 22-25, infra.

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lawfully appointed “[a]ttorney for the government” entitled to appear before the grand jury, or
sign the indictment, under Federal Rules of Criminal Procedure 6 and 7. See Fed. R. Crim. P.
1(b)(1) (defining “[a]ttorney for the government”). The assertion that the Special Counsel has
“statutory authority under Section 515,” Opp. 39, again misses the mark: The Acting Attorney
General’s appointment authority is limited by § 515(a) and its implementing regulations, i.e., the
Special Counsel Regulations. See pp. 10-16, supra. Because the Appointment Order exceeded
the Acting Attorney General’s authority, the Special Counsel is neither an “authorized assistant”
of the Attorney General, nor an “attorney authorized by law to conduct proceedings under these
rules as a prosecutor.” Fed. R. Crim. P. 1(b)(1)(A), 1(b)(1)(D); see also Mot. 27-31.
That result leads to no “untenable consequences.” Opp. 40. Cases would not, for
example, be dismissed if brought by the wrong division within the DOJ. Id. The problem here is
that the Special Counsel is not a DOJ attorney at all. He was “selected from outside the United
States Government.” 28 C.F.R. § 600.3 (emphasis added). For that reason, the scope of the
Acting Attorney General’s appointment authority, and the Special Counsel’s authority under the
appointment, are sharply limited by binding regulations. Id. § 600.4. By contrast, the Attorney
General has considerable latitude to delegate prosecutorial functions to line DOJ attorneys. 28
U.S.C. § 510. Indeed, § 515(a)’s requirement that the Attorney General “specifically direct[ ]”
authority, id. § 515(a), applies only to special appointments, not line-attorney assignments.
C.

The Special Counsel’s Participation in the Grand Jury Proceedings
Prejudiced Mr. Manafort

Finally, the Special Counsel argues that any violation of Rules 6 and 7 was “harmless,”
dismissing the contrary evidence as “speculation” and “imagin[ation].” Opp. 42-43. But the
Special Counsel does not deny that Mr. Manafort already disclosed his consulting activities to
DOJ prosecutors as early as 2014. See Mot. 30. Nor does he deny that prosecutors did not

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charge Mr. Manafort for that conduct. See id. With those critical facts undisputed, it is simple
history, not imagination, that demonstrates the Special Counsel’s “substantial influence” on the
charges here. Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988). That is sufficient
to show prejudice warranting dismissal. See id.; see also Mot. 29-31.
The Special Counsel insists that “the supervision and involvement of other DOJ career
attorneys” renders his participation “harmless.”

Opp. 41, 43.

But the Special Counsel’s

participation was undoubtedly at least a “substantial influence” in this matter. Bank of Nova
Scotia, 487 U.S. at 256. Indeed, the Special Counsel is the controlling force. The Special
Counsel does not contend otherwise. That only the Special Counsel signed the Superseding
Indictment on behalf of the government makes that clearer still.
The Special Counsel asserts that his “decision to seek an indictment was supervised and
approved by the Acting Attorney General.” Opp. 43. But the Acting Attorney General testified
only that he believed the Special Counsel had been “conducting himself consistently with [the
Department’s] understanding about the scope of his investigation,” and that he was “comfortable
with the process that was followed with regard to th[e] [initial] indictment.” Id. (alteration in
original) (quoting Rosenstein Testimony 28, 146). Those remarks do not establish that the
Superseding Indictment is within the scope of permissible original jurisdiction. They establish
nothing about the Superseding Indictment at all. The Superseding Indictment is dated February
23, 2018, more than two months after the Acting Attorney General’s December 13, 2017
testimony.

And those remarks surely do not show that, absent the Special Counsel’s

impermissible participation, the Acting Attorney General would have chosen the same course
himself. The prior decisions by long-time prosecutors not to pursue these charges prove the
opposite. The requisite “substantial influence” undeniably exists.
Moreover, other than invoking the Acting Attorney General’s purported “comfort[ ],”
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Opp. 43, the Special Counsel nowhere explains what supposed “supervision and involvement”
other “DOJ career attorneys” offered the Special Counsel. Id. at 41. He points to the fact that
“the Senior Assistant Special Counsel in charge of this prosecution is a long time, career
prosecutor with the internal authority to conduct this prosecution,” but fails to explain how that
person—the Special Counsel’s subordinate—could have “supervised” the Special Counsel’s investigative and charging decisions. Id. at 42. Those unelaborated assertions about other participants do not dispel the “substantial influence” the Special Counsel exercised here. Bank of
Nova Scotia, 487 U.S. at 256.6 Besides, if the Special Counsel does not have jurisdiction, the
subordinates in his office don’t either, regardless of where they were drawn from.
The cases the Special Counsel cites (at 41-42) offer no support. In United States v.
Plesinski, 912 F.2d 1033 (9th Cir. 1990), the defendant sought to dismiss an indictment based on
the presence of improperly appointed prosecutor before the grand jury. Id. at 1038. But the
attorney “ ‘did not say or do anything nor did anyone make reference to him in front of the grand
jury.’ ” Id. at 1038 n.9. Similarly, in United States v. Fowlie, 24 F.3d 1059 (9th Cir. 1994), the
court concluded that a defendant was not prejudiced where the improperly appointed prosecutor
played a “minimal” role. Id. at 1066. That is hardly the situation here, where the Special
Counsel was the leader and driving force behind the charges. See Mot. 30-31.
The remaining cases (at 41-42) involve mistakes about which duly authorized
government attorney signed the indictment. See United States v. Vance, 256 F.2d 82, 83 (6th
Cir. 1958) (signature of Assistant United States Attorney, instead of United States Attorney,
6

Similarly, the Special Counsel’s assertion that “the applicable rules” required the Special
Counsel to obtain “approv[al]” from the National Security Division for the Foreign Agents
Registration Act charges and from the Tax Division for the tax-related charges does not show
that those Divisions did in fact approve the charges beforehand or that they would have brought
them absent the Special Counsel’s urging. Opp. 42.

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harmless); Caha v. United States, 152 U.S. 211, 221 (1894) (similar). In those cases, it was
undisputed that the prosecuting attorney had authority to prosecute. Here, by contrast, the person
who sought the Superseding Indictment in the first place, and signed it, lacked authority.
Courts regularly find prejudice warranting dismissal of an indictment where, as here, an
unauthorized prosecutor’s involvement in grand jury proceedings or the indictment process is
more than trivial.

See, e.g., State v. Hardy, 406 N.E.2d 313, 316 (Ind. Ct. App. 1980)

(unauthorized prosecutor’s “presence and active participation” in grand jury proceedings
prejudiced defendant); People v. Munson, 150 N.E. 280, 283 (Ill. 1925) (dismissing indictment
“procured directly through the assistance of ” unauthorized prosecutor). No “speculation,” Opp.
42, is needed to conclude that the Special Counsel’s extensive and unauthorized involvement
was, at the very least, a “substantial influence.” Bank of Nova Scotia, 487 U.S. at 256.7
Finally, the Special Counsel claims that finding prejudice here would “strike the wrong
balance between societal costs and the rights of an accused.” Opp. 44. But the Special Counsel
does not get to decide the appropriate “balance.” The Special Counsel Regulations do that.
They “strike” the “balance” “between independence and accountability.” Office of Special
Counsel, 64 Fed. Reg. at 37038. This Court should restore that balance by dismissing the
Superseding Indictment, confining the Special Counsel to his properly granted authority.
CONCLUSION
The Superseding Indictment should be dismissed.

7

To the extent there is any doubt about the level of the Special Counsel’s participation in the
grand jury process, the Court should order production of the grand jury transcripts. See Mot. 31
n.8 (citing United States v. Sells Eng’g, 463 U.S. 418, 443 (1986)). The Special Counsel’s
hyperbolic claim that such a production would “impose tremendous costs,” Opp. 44, is baseless:
Any possible risk of impairing grand jury secrecy could be prevented by appropriate protective
orders. See Fed. R. Crim. P. 16(d) (authorizing protective orders in criminal cases).

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 Case 1:17-cr-00201-ABJ Document 272 Filed 04/12/18 Page 31 of 31

Dated:

April 12, 2018
Washington, D.C.

Respectfully submitted,
/s/ Kevin M. Downing
Kevin M. Downing
(D.C. Bar #1013894)
601 New Jersey Avenue, N.W.
Suite 620
Washington, D.C. 20001
(202) 754-1992
kevindowning@kdowninglaw.com
/s/ Thomas E. Zehnle
Thomas E. Zehnle
(D.C. Bar #415556)
601 New Jersey Avenue, N.W.
Suite 620
Washington, D.C. 20001
(202) 368-4668
tezehnle@gmail.com
Counsel for Defendant Paul J. Manafort, Jr.

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