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Civil Actions to Restrain Criminal Prosecutions

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There is some reason to doubt whether Deputy Attorney General Rod Rosenstein was within his authority when he gave Special Counsel Robert Mueller a scope of investigation and prosecution that exceeds the scope of Attorney General Sessions's recusal.  Only the Attorney General and Acting Attorney General can appoint a special counsel (28 CFR ยง 600.1), and Mr. Rosenstein is Acting Attorney General only as to those matters on which Mr. Sessions is recused.  Business dealings of Paul Manafort that have nothing to do with the 2016 political campaign are not within that scope.  So Mr. Manafort may well have a legitimate claim that the Special Counsel has no authority to prosecute him for unrelated matters.

Even so, filing a separate civil suit to restrain prosecution was doomed to failure, and today Judge Amy Jackson dismissed it.

But a civil case is not the appropriate vehicle for taking issue with what a prosecutor has done in the past or where he might be headed in the future. It is a sound and well-established principle that a court should not exercise its equitable powers to interfere with or enjoin an ongoing criminal investigation when the defendant will have the opportunity to challenge any defects in the prosecution in the trial court or on direct appeal. Therefore, the Court finds that this civil complaint must be dismissed.
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For all of these reasons, Manafort's civil case will be dismissed, and his concerns regarding the Special Counsel's investigation will be taken up in the criminal case.
The opinion also discusses the Younger abstention doctrine, which is partly based on federalism (which is not applicable here) and partly on the traditional rule that equity will not enjoin a criminal prosecution (which is).

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The problem, of course, is that the APA is not "equity"--it's statutory. I think his APA claim should have been allowed to go forward.

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