Lessons from Mueller

Lessons from the Mueller Report
(Report On The Investigation Into Russian Interference In The 2016 Presidential Election)
 

With the dropping of charges against General Flynn and with the Supreme Court’s hearing about the partial release of Grand Jury testimony gathered by Special Prosecutor, Robert Mueller, and with the recent opening of senate investigations, we are re-focusing on the Mueller investigation. There are some lessons for us still to learn from his report.

I will look in detail at several elements:

1.      Mueller’s failure to file charges for Finance Law violations (conspiracy with the Russians) arising from the June 9^th 2016 meeting between Trump campaign representatives and Russian operatives

2.      The obfuscation and contortions so evident in his discussion of why the President was not indicted on obstruction of justice charges.

No Charges for violations of the Campaign Finance Laws.

From his report, it is clear that he bent over backwards not to indict two members of the President’s family (Donald Jr. and Jared Kushner) and the then manager of his presidential campaign, Mr. Manafort. As is well known, the three confidants of Mr. Trump, responded positively to an invitation from a Russian lawyer to receive some dirt on Hilary Clinton. Mr. Trump Jr. is quoted by Mueller as saying: “if it’s [sensitive high level information] what you say I love it especially later in the summer.”

Mueller levies no charges because he thought he would have difficulty providing proof of a crime because of the question of whether there was anything of value being offered to the campaign and whether the participants in the meeting knew that they were breaking the law. Anything of value would have to be reported as a donation to the campaign and donations from foreigners are explicitly forbidden.

Mueller’s discussion of value [Chapter 5.B.3.a, b. i, iii) concludes like a brief provided by a defense attorney rather than a statement of the grounds for or against prosecution. He does begin by describing the kind of information that would be valuable: law enforcement reports, classified materials, confidential information on a competitive bid, grand jury information, and relevant here, “in the public corruption context … the value the defendant subjectively attaches to the items received.” In addition, the Federal Elections Commission has stated that value also resides in political membership lists, mailing lists, state-by-state lists of activists, polling data, and campaign materials. The law also specifies that value resides in what the participants expect to receive before the meeting took place.  However, Mueller dismissed all of this claiming that there was no way to establish the value of what was offered to the Trump team. This despite the fact that before the meeting, the Trump’s team was told and believed that the information would incriminate Hillary Clinton and that it would be helpful to Donald Trump’s campaign.  Mueller’s second reason for rejecting the idea that there had been a violation of the Election Law based on the value of a gift was the fact that “no judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign finance law.” The argument that compensation is required for the contribution to be a violation of the law seems bizarre.

Finally, he argues that he could not lay charges because the Trump representatives might not have known that they were breaking the law in receiving something of value from the Russians. Although ignorance of the law is usually not a defense, with campaign finance law, the potential wrongdoer must do so “knowingly and willfully.” Mueller thought that Trump’s team might be able to activate this defense so decided not to charge them. I would have thought that Manafort being both a lawyer and being the campaign manager should have been aware of the law and would have been worth charging.

Obfuscation on Obstruction of Justice

The saddest statement in the report comes in the introduction to the section on Obstruction of Justice. It reads: “Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

There is one reason and one reason only why Mr. Mueller did not draw the conclusion the President was a criminal: Justice Department rulings and memoranda that a sitting president could not be indicted. Recently several judges have questioned the applicability of these memoranda because they “do not constitute authoritative judicial interpretation of the Constitution concerning those issues.” Note that Mueller was concerned about the lack of such a ruling in the case of uncompensated gifts to a campaign; this weighed in his decision not to bring charges.

Mueller identified ten events that gave prima facie evidence that Mr. Trump, as President, obstructed justice. These include pressure on the FBI to go easy on General Flynn, through the firing of FBI Director James. Comey, through the attempts to hide the purpose and outcomes of the July 9^th. Meeting.

All clearly qualify as obstruction of justice.

Implications

From the whole report, we need to take Mr. Mueller’s warning seriously and erect cyber defenses against Russian interference. Both government, through election protection, and the private sector, through disabling bots, must do their parts.

Second, we must revise the election finance law so that it is harder for people to plead ignorance. At the very least, knowledge of the law should be assumed for the candidate, her or his family, the campaign manager, and the senior staff of the campaign.

Finally, the idea that the President cannot be indicted while in office needs intense scrutiny. Surely wrongdoing that increases the chance of a person becoming President should be indictable. Certainly the idea of Presidential immunity should be tested in the courts.