I never understood why Manafort’s legal team made such weak legal arguments in the DC district court challenging the authority of Special Counsel Mueller’s power to prosecute.
In their oral argument in the Virginia district court, they made stronger arguments, edging closer toward the claim that Mueller is a de facto US Attorney and therefore unlawfully appointed.
They didn’t use the argument I posited on here a few months back, that the DOJ cannot on the one hand purport to vest in Mueller per the language of the regulations the full power of a US Attorney but on the other hand fail to comply with the requirements of the US Code that a US Attorney must be appointed by the president and confirmed by the senate.
Nor did they use the argument Steve Calebresi made the other day in the WSJ that Mueller is a principal officer, not an inferior officer, under constitutional jurisprudence and therefore must be appointed by the president and confirmed by the senate.
Furthermore, the provision of DOJ regulations that claims Mueller’s power cannot be challenged by anyone other than the DOJ was never fully argued. The DC judge swallowed this whole. But this cannot stand when the defect goes to whether Mueller has power in the first place to prosecute in the federal courts. It would be like a guy coming into court off the street, falsely claiming to have the power of a US Attorney and filing a criminal indictment against someone. It’s not acceptable to say the defendant can’t challenge the authority of such person to prosecute.
And Manafort’s legal team doesn’t seem to be delving into the question of back-dating - even assuming the two appointment letters are valid, did Mueller have the authority to obtain search warrants against Manafort before the date of the second letter having to do with matters granted only in the second letter?
And any claim that Rosenstein gave Mueller earlier oral authority should result in both Mueller and Rosenstein being made to give sworn testimony in open court.
The judge would probably rule that unless the President and the Senate object under those Contitutional circumstances to Mueller as acting as an official US attorney, she might rule that there has been tacit agreement by all parties concerned that he continue to so act!
Should an objection be raised by either the Senate or the President to Mueller acting as defacto US attorney with broad powers, then it becomes a different ball game!