The Mueller Report’s Errors

In Politico, I wrote a piece calling for one or two expert lawyers to ask the questions at the Mueller hearing, rather than the members of Congress. That model worked in Watergate and Iran Contra. In that piece, I put together some of the errors in the Mueller Report.

Here is a concise list all in one place:

Error #1: Campaign Coordination. The DOJ assigned him to investigate “coordination.” His report stated “‘Coordination’ does not have a settled definition in fed criminal law. We understood coordination to require an agreement—tacit or express.” Wrong.
Congress explicitly rejected such a permissive interpretation. In 2002, Congress passed a statute declaring that campaign finance regulations “shall not require agreement or formal collaboration to establish coordination,” and any knowing and willful violations are criminal.  The FEC followed through accordingly: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” w/o any requirement to prove agreement. And the Supreme Court validated these rules in 2003: “Expenditures made after a wink or nod often will be as useful to the candidate as cash.” And the Supreme Court also explained that this was a long standing rule: “An agreement has never been required under §315(a)(7)(B)(i), which uses precisely the same language as the new provision to address coordination with candidates, and which has survived without constitutional challenge for almost three decades.”

Error #2: Mueller’s failure to clarify which legal standards he was using: Beyond a reasonable doubt? This created a lot of confusion,  which enabled Barr and Trump to mislead. By preponderance or by “substantial credible” evidence, Mueller found conspiracy and illegal coordination. See my New York Times op-ed on this problem.

Continue reading “The Mueller Report’s Errors”

To get Mueller to answer, don’t have Congress ask the questions. Use the Watergate/Iran-Contra Model.

My piece in Politico:

“If recent history is any guide, Robert Mueller’s much-anticipated Capitol Hill appearance on Wednesday will fizzle into a mix of political grandstanding by the questioners and frustratingly narrow answers from the star witness. Congress’s biggest public chance to highlight the links between the Trump campaign and Russia, and the president’s acts of obstruction, will become a chance for members to showcase their wit, score politcial points and maybe even go viral with a dramatic exchange. This one was originally scheduled for last week, and a main reason for its delay is that the junior members of the Judiciary committee wouldn’t have enough time to get their own questions in.

So far, the solution has been to expand the hearing time. Here’s a better one: None of the members should ask the questions at all.

Their expert staffers should ask all the questions—not just to resolve the battle of egos, but to give Congress its only chance to make any real progress on the issues…

For more, follow this link.

Mueller Missed the Crime: Trump’s Campaign Coordinated With Russia

My new piece.

“Mueller’s legal errors meant that:

1) he failed to conclude that the Trump campaign criminally coordinated with Russia;

2) he failed to indict Manafort & Gates for campaign crimes (see concise timeline);

3) the 10 acts of obstruction in Volume II fell flat among the general public because it lacked compelling context of these underlying crimes between the campaign and Russia. On top of these errors, the former special counsel said he deliberately wrote the report to be unclear because it would be unfair to make clear criminal accusations against a president.

Here is a short, concise timeline of 10 events to show that Mueller found criminal coordination in the back-and-forth between the Trump campaign and the Russian government. Puzzlingly, Mueller omitted some of these events from Volume I, but revealed them in other Mueller team indictments or from Volume II, another strange error…

See especially August 2 on Manafort sharing 70 pages of polling data with Russian spy Kilimnik, highlighting target states Wisconsin, Michigan, Minnesota, and Pennsylvania:

“In fact, this episode leads to one of the most dumbfounding passages in the report: “The Office could not reliably determine Manafort’s purpose in sharing internal polling data with Kilimnik during the campaign period.” Mueller entertains Manafort’s assertion that this sharing was “good for business.” Because the polling showed off Manafort’s skills with color graphics? No, because it was valuable coordination between the campaign and Manafort’s oligarch sponsors.

Even if one takes the most charitable interpretation of Manafort’s denial of coordination (to “resolve [Deripaska’s] outstanding lawsuits”), Manafort is essentially confessing to conspiracy/quid pro quo. This is the Mueller Report in a microcosm: he has evidence that Manafort committed two different kinds of crimes, yet he bends over backward to a known liar to conclude that instead of both crimes, it was neither.”

NY Times Op-Ed: “How Mueller Can Fix His Mistakes”

My NY Times op-ed today on how the Mueller Report’s stunning legal errors on “opposition research” and “coordination” create huge loopholes for worse violations in 2020. The FEC also bears responsibility for vague regulations that leave the rules vulnerable to the Supreme Court invalidating them entirely.

These mistakes are a big part of why his Report failed to clarify that Trump’s campaign violated the law, and they are a reason why Trump recently signaled that he will repeat the same conduct in 2020. These errors appear deliberate, because Mueller himself appears to be ideologically conservative on campaign regulation, the First Amendment, and presidential power. (“Remarkably, Mr. Mueller showed more deference to a White House Office of Legal Counsel memo (on not indicting a sitting president) than to Congress and the F.E.C. (on campaign finance law). Members of Congress should press him on these backward assumptions.”)

House committees should not treat Mueller as a cooperative witness on July 17. He will be as deliberately unclear as ever. He will be reticent & defensive. It is crucial that they assign questions to committee lawyer experts, because members of Congress will fail in choppy 5-minute slots.

If you don’t have a subscription, here are my intro and conclusion:

Intro: When Robert Mueller testifies on July 17, members of Congress should not expect new revelations. Instead, they should ask tough questions about his legal errors and the loopholes he created.

President Trump’s recent comments about foreign meetings and opposition research (“I think I’d take it”) produced controversy and confusion across the political spectrum. But he is not the only one to blame for the confusion about campaign-finance law. The Mueller report and the Federal Election Commission bear responsibility, too.

Conclusion: The F.E.C. must clarify that merely talking to foreigners is protected by the First Amendment, but receiving their substantial “opposition research” is not. Then it must set some clear standards for what significant investment of resources would constitute “opposition research.”

For Congress, an unrealistic path is to pass legislation to resolve these ambiguities. A more practical path begins July 17 with testimony from Mr. Mueller. Then Congress should subpoena officials from both the Trump and Clinton campaigns (there are plenty of questions on foreign contacts to go around). Finally, an official impeachment inquiry might strengthen such subpoena efforts and produce some clarifying votes.

Mr. Trump has shown his intent to exploit Mr. Mueller’s errors and ambiguities. The 2020 campaign has already begun under a cloud of legal confusion. Congress now must ask Mr. Mueller to fix his mistakes, and the F.E.C. must clean up this mess.



NY Times Op-ed: The Trump Campaign Conspired With the Russians. Mueller Proved It.

Here’s the first section of my op-ed today below. I’m also linking two podcasts I did for Slate: The first with Dahlia Lithwick (Amicus) two hours after the report was released, and a second with Virginia Heffernan (TrumpCast) the next morning in more detail. I started developing the point on that interview that I spell out here.

The op-ed: (Or at least the first quarter of it)

In his first letter after receiving the Mueller report, Attorney General William Barr accurately quoted it as saying that “the investigation did not establish” that the Trump campaign “conspired or coordinated with the Russian government in its election interference activities.”

But the opposite is also true: The Mueller report does establish that, in fact, members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.

How is this possible? It’s the difference between the report’s criminal prosecution standard of proof “beyond a reasonable doubt” and a lower standard — the preponderance standard of “more likely than not” — relevant for counterintelligence and general parlance about facts, and closer to the proper standard for impeachment.

There is confusion about the Mueller report’s fact-finding because he used the wrong coordination standard, obstruction probably obscured the evidence of crimes, and the summary was unclear about evidentiary standards. The report’s very high standard for legal conclusions for criminal charges was explicitly proof “beyond a reasonable doubt.” So the report did not establish crimes beyond a reasonable doubt. But it did show a preponderance of conspiracy and coordination.

The Mueller report is best understood as two reports, and not just in its organization of one volume on Russia and one on obstruction. Each volume is one report on facts, and another on applying criminal law to those facts. When the report explains its prosecution decisions and interprets the legal questions of conspiracy and coordination, it repeatedly clarifies that its standard is “whether admissible evidence would probably be sufficient to obtain and sustain a conviction.”

The “prosecution and declination decisions” part of the report uses proof “beyond a reasonable doubt” 10 times, particularly with respect to declining indictments for Russian contacts crimes for Paul Manafort and Donald Trump Jr.

UPDATE 4/29: I’m adding these key paragraphs five days later:

“Even without knowing what is redacted, the report offers “substantial and credible information” of the Trump campaign conspiring or coordinating with the Russian government. Under federal criminal law, “conspiracy” does not require direct proof or explicit words of agreement. It can be proven by action and circumstantial evidence from which the agreement may be inferred. And on campaign “coordination,” the Mueller report made a significant omission or oversight on this question when it stated that “‘coordination’ does not have a settled definition in federal criminal law. We understood coordination to require an agreement — tacit or express.”

As the election law expert Paul Seamus Ryan noted, Congress in its 2002 campaign finance law rejected that view: Federal law “shall not require agreement or formal collaboration to establish coordination.” The federal regulations followed this command: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” with no need to show any kind of agreement. Expenditures for coordinated communications are considered in-kind contributions, and foreign contributions — public or private — are illegal. In fact, the Federal Election Commission is reviewing a complaint along these lines.

The report states that Rick Gates, a campaign deputy, suspected that Mr. Manafort’s Russian associate, Konstantin Kilimnik, was a “spy,” a view that he shared with Mr. Manafort (and others). For months, Mr. Manafort informed Mr. Kilimnik about the campaign through internal polling data, even pointing out that Wisconsin, Pennsylvania, Michigan and Minnesota were target states. The Mueller report did not conclude their motives were criminal beyond a reasonable doubt, but by a preponderance in context, the motives were clearly campaign related and likely a coordination with Russia.

Despite being heavily redacted, the report seems to add context to Roger Stone’s indictment, implicitly suggesting that Mr. Trump may have directed officials to contact Roger Stone about WikiLeaks, and may have been in contact with Mr. Stone about WikiLeaks. It may not be proven beyond a reasonable doubt that they knew WikiLeaks was an extension of Russian hacking and a Russian campaign, but it is more likely than not a kind of indirect coordination with a foreign government prohibited by law. And Donald Trump Jr.’s continuing contacts with WikiLeaks in September and October 2016, long after the Trump Tower meeting and the July events made its connection to a Russian campaign clear, also were likely a coordination, even if not knowingly proven beyond a reasonable doubt.”