Two speaking events in September

September 15, 5:00 – 6:30:

League of Women Voters:

Is our Constitution working?

How is our Consitution holding up?  Is there still a balance of powers among the three branches of government? Is the Supreme Court still an independent branch of government or should structural changes be made? What about the independence of the Fed, the Attorney General, and the Department of Justice?  Are we near a constitutional crisis? See details here.

Kendrick-Durand House and Grounds

286 Waverley Avenue
Newton, MA 02458
 

September 24: The Future of the Supreme Court

JCC Boston Hot Buttons, Cool Conversations Series

We will examine the shift in the Supreme Court and its power to determine the direction of hot button issues including reproductive rights, gun laws, and immigration. We will look at the Court as a bellwether of this nation and examine the power as the highest court. Does the Court reflect the views of the country and where it’s headed?

With Kate Shaw, Gary Lawson, me, and moderator Robert Barnes (Washington Post)

Tuesday, September 24, 2019 at 7:30pm

Riemer-Goldstein Theater, Leventhal-Sidman Center

More info here. Tickets here.

Three podcasts: TrumpCast on Mueller, Embedded, and Throughline on Mass Incarceration.

Just linking to three podcasts I was honored to be a part of over the last few weeks. I love the podcast format because it allowed each story to go into more depth and analysis. And I was particularly impressed with the depth and engagement of each of these hosts and producers.

“Which Volume of the Mueller Report are you?”: TrumpCast with Virginia Heffernan on Mueller’s testimony here.

NPR’s Embedded “Worse than Willie Horton” on Judicial Elections here.

NPR’s Throughline on Mass Incarceration here with Khalil Gibran Muhammed, John Pfaff, and Emily Bazelon.

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.