Manafort’s flimsy lawsuit highlights Mueller’s problem of proving ‘collusion’ in court

In a move that appears to signal his desperation, Paul Manafort filed a civil lawsuit against Deputy Attorney General Rod Rosenstein and special counsel Robert Mueller on Wednesday, challenging the Justice Department’s investigation that resulted in a 12-count indictment against Manafort.

The suit alleges that Mueller exceeded the scope of his authority in indicting Manafort for crimes unrelated to his mandate and that Rosenstein failed to appropriately limit Mueller’s jurisdiction under the DOJ special counsel regulations. Both of these claims are likely to fail in court. Nevertheless, the lawsuit underscores a challenge Mueller will continue to face as people focus on whether there was “collusion,” namely, fitting a counterintelligence investigation into a criminal framework.

{mosads}As a purely legal matter, Manafort’s claims lack merit. Rosenstein’s appointment letter grants Mueller broad authority to investigate “any links and/or coordination between Russia and individuals associated with the campaign of Donald Trump” as well as any matters that “may arise directly from the investigation.”

Even if this latter grant of authority is relatively nonspecific, the special counsel regulations allow for Rosenstein to give Mueller permission to expand the scope of his investigation if it is warranted.

Rosenstein confirmed that he had done exactly this in his testimony to the House Judiciary Committee last month stating, “to the extent there was any ambiguity about it, [Mueller] has received my permission to include those matters in his investigation.” Mueller, it should be noted, would have also needed to get Rosenstein’s authorization to bring charges, which means that the deputy attorney general has blessed the entirety of the case against Manafort in accordance with DOJ regulations.

As a matter of public perception, however, Mueller still faces an obstacle in laying out the case of possible coordination between members of the Trump campaign and Russia during the 2016 election. This is because at its core, Mueller’s investigation is at least as much a counterintelligence investigation as a criminal one.

Notably, Mueller’s appointment letter lists investigating any “links and/or coordination” between Russia and the campaign as his primary jurisdiction; this is separate from his secondary jurisdiction to prosecute any crimes arising from the investigation, “if necessary and appropriate.” The bifurcation of these two angles of the Russia inquiry highlights that any criminal charges that come out of Mueller’s investigation will likely reveal only a sliver of the bigger counterintelligence story. 

To make sense of this, it’s important to understand that foreign intelligence services like Russia play the long game. Intelligence officers use the acronym MICE, which stands for “money, ideology, coercion and ego,” to broadly describe the spectrum of motivations that can drive an individual to work on behalf of a foreign intelligence service.

Further, as I explained with former CIA officers John Sipher and Alex Finley, foreign spies recruit their assets over time, slowly identifying an individual’s vulnerability (the parts of MICE they are most likely to respond to) and exploiting it through a series of interactions.

Some actions in the recruitment process may run afoul of the law, but many will not. As a result, trying to make sense of a counterintelligence storyline by looking only at the criminal charges that stem from it is like trying to make sense of a full-length movie by watching only a few scenes: The full story will not be apparent, because key characters and events and plot lines are missing.

The indictment against Manafort is a perfect example. Manafort is charged with, among other crimes, a $75 million money laundering scheme going back to 2005. He is also charged with acting as an unregistered foreign agent for Ukraine. Viewing these charges in isolation, there is no smoking gun case that Manafort, in his capacity as the chairman of the Trump campaign, was tied to Russian intelligence in their efforts to meddle in the 2016 election — which is precisely Manafort’s claim in his recent lawsuit.

From a counterintelligence perspective, however, these are just a few “scenes” from what could have been a long term effort by Russian intelligence to recruit and develop Manafort as an asset, first by enticing him (money) and later by having leverage over him as a result of knowing about his illegal financial activities (coercion). In fact, when juxtaposed with the FISA orders the FBI had on him from 2014 until 2017, the picture of Manafort as an asset who was recruited and developed by Russian intelligence and directed to join the Trump campaign comes into clearer focus.

Filling in all the gaps of the story, however, is impossible for Mueller to do in a criminal case alone, since each charge only lists the facts relevant to that crime. But here’s where Manafort’s lawsuit might have just opened up an opportunity for Mueller. By arguing that Mueller has exceeded his mandate by charging him with crimes unrelated to Russia’s election meddling and his role as chairman of the Trump campaign, Manafort has opened the door for Mueller’s team to provide a response: Mueller’s team can, if it chooses, explain to the court exactly how each of the charges in Manafort’s indictment is tied to his investigation into Russian collusion, adding the characters, scenes, and plot lines that might otherwise never make it inside of a criminal courtroom.

Given the flimsy basis for Manafort’s lawsuit, however, it’s unlikely that Mueller will need to go this route — the case will likely get thrown out just on the basis that Mueller’s investigation is consistent with DOJ regulations. 

He also may not want to flesh out the narrative, since revealing the full picture risks disclosing sensitive methods and sources in what is still an ongoing investigation. That leaves Mueller in the position of continuing to fit a square peg of intelligence-related collusion into the round hole of the criminal process, potentially obscuring some of the most problematic aspects of Russia’s efforts against the United States. 

Asha Rangappa is a former special agent in the Counterintelligence Division of the FBI in New York City. She is a senior lecturer at Yale’s Jackson Institute for Global Affairs. Follow her on Twitter @AshaRangappa_.