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.


Error #3: Under the right standard for “coordination,” Mueller should have found crimes by Trump campaign officials with Russia, & prosecuted Manafort & Gates for campaign felonies. Such findings would’ve made Trump’s obstruction more compelling and damning. (My Daily Beast piece).

Error #4: Other indictments highlighted the factual pattern of coordination: a Trump signal followed immediately by Russian hacking or leaking. But inexplicably, Volume I failed to note or emphasize many of these key moments. See details in my Daily Beast piece.

Error #5: Manafort’s own explanation for giving detailed polling data to a Russian spy – ostensibly a defense against such felony coordination – was essentially a confession to quid pro quo: the sharing would “resolve [Deripaska’s] outstanding lawsuits” over Manafort’s debts.

Why did Mueller bend over backward to accept Manafort’s explanation, when that explanation is actually more evidence of criminality, and when Mueller documented so many lies, coordination with Trump legal team in violation of cooperation agreement, and destroying of evidence?

Error #6: Concluding Manafort did not “have relevant knowledge of these legal issues,” thus didn’t meet the knowing/willful requirement. If Manafort – a lawyer & a veteran official or advisor of 4 presidential campaigns—can’t be assumed to have that knowledge, then who could?
Congress passed a statute with a criminal component but tried to be fair to defendants by requiring “knowing and willful” violation. But they weren’t trying to make the law a dead letter. Mueller’s error in favor of Manafort is a precedent that undermines this law.

Error #7: A giant loophole for donors & foreign govts to give campaigns unlimited “opposition research” if it’s “the recounting of historically accurate facts.” Ideological bias against campaign finance regulation. And it should be corrected Wednesday. (More detail in my New York times op-ed on opposition research.

Error #8: Did Trump know that Junior scheduled Trump Tower meeting with Russian spy? Within an hour or so, he announced “major speech” on Clintons in the same context. Other prosecutors would draw different inference from circumstantial evidence plus of lying & obstruction.

Error #9: Even if under DOJ policy and under Barr, Mueller would not be able to indict a sitting president, why not at least question the policy? The 2000 OLC memo relies on an erroneous assumption: No such thing as equitable tolling of criminal statutes of limitations. The OLC memo cites dicta, but not a single actual precedent, and I and others can’t find one either.
The OLC memo assumed a president could be indicted after leaving office even if statute of limitations had run, because judges could stop the clock on their own. But judges can’t, so a 2-term president will often be immune for crimes committed in the first campaign or for most the first term. Does Mueller realize this?

Error #10: Even if Mueller couldn’t indict Trump under OLC policy, why did this policy have a double-whammy of Mueller not even being able to make accusations? No legal conclusions about crimes? Deliberately writing cryptically? See Vol II p. 2. ( See Take Care blog).

Other seeming errors that may have other explanations: Why didn’t Mueller seek tax returns and financial records that may have explained Trump’s motives in coordinating with Russia? Why didn’t Mueller litigate for a live interview with Trump? There may be an explanation that Mueller wanted to avoid being fired and did not want to waste time on some litigation. I thought this was the careful strategy when I thought Mueller had strong evidence of campaign crimes in hand. I am more skeptical now of such choices, but it is hard to second-guess.

 

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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