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.

 

 

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor and Joseph Lipsitt Scholar at Boston University School of Law. He was at Fordham Law School 2013-2022. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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

  1. When you write “Trump,” you mean “Clinton,” correct?

    Because she was the candidate who paid for and exploited foreign opposition research.

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