During the entire investigation, I’ve written or stated that “collusion” is not a crime. But now I’m persuaded that Mueller has legal precedent and probably sufficient facts to convert knowing collusion into a criminal conspiracy charge. I agree with Randall Eliason’s commentary that Mueller has evidence to turn collusion into a conspiracy charge under 18 USC 371, and Mueller is using this approach in his indictments:
“For purposes of Section 371 conspiracies to defraud the U.S., fraud has a different and broader meaning. In 1924 in Hammerschmidt v. United States the Supreme Court held that conspiracy to defraud the U.S. includes schemes “to interfere with or obstruct one of its lawful government functions by deceit, craft, or trickery, or at least by means that are dishonest.’’ A conspiracy to defraud the U.S. under 371 does not need to result in a loss of money or property by the federal government.”
“This theory has been used in election fraud cases in the past. For example, in the 1990’s there was a scandal involving China’s attempts to promote its interests within the U.S. government and potentially influence the 1996 presidential election. Charlie Trie, a Chinese-American with ties to the Clintons, was convicted for violating various campaign finance rules by exceeding legal contribution amounts and concealing the true identity of donors. Among the charges in his indictment: conspiracy to defraud the U.S. under Section 371 by impairing and impeding the legitimate functions of the Federal Election Commission.”
This development is very serious. Obviously, Mueller needs more evidence, but the indictment of 13 Russians contains both this conspiracy charge and facts that might lead a path towards indicting Trump officials and Cambridge Analytics officials. Certainly the obstruction charges just got a lot more potent now that we know of underlying concrete crimes.
The basic facts alleged in the indictments of 13 Russians were not surprising generally to those following the news of Russian manipulation of Facebook and Twitter, but I was surprised by the details of identity theft and bank fraud. Those specific crimes are more concrete and more easily proven than violations of campaign finance law or election law, and that puts anyone who knowingly conspired with them in more serious legal jeopardy. These indictments do mention “unwitting” Americans, which seems exculpatory of the Trump campaign at this stage, but 1) it is a more careful and professional way of phrasing an indictment at this stage, 2) it is wise for Mueller and Rosenstein to avoid unnecessary politically contentious allegations now, and most importantly 3) Mueller unsealed a guilty plea by a “witting” American co-conspirator on the same day, showing that there is more behind this indictment of Russians than innocent mistake. Even if the indictment doesn’t specify Trump campaign knowing conspiracy, that doesn’t mean Mueller already has evidence of it or is on his way of finding it.
Finally, even if the 13 Russians are never arrested and tried, these indictments prevent them from traveling to countries with Interpol agreements with the US, by which these suspects would be extradited. If they were extradited and tried, their prosecution for identity theft and bank fraud could be “paper prosecutions,” meaning a relatively solid and clear case relying on documents much more than live testimony.
I agree with Dahlia Lithwick in Slate: Optically, it was strategically smart to have Rosenstein make the announcement himself. It presents a unified front at the DOJ, and it looks more obstructive if Trump tries to fire him. I just want to elaborate on the quote I provided for her:
As Mueller makes more progress in the investigation, it makes it more difficult legally to fire Mueller because it is more blatantly obstructive. On the other hand, as Mueller gets closer to where the “bodies are buried,” and because Trump may know where the bodies are buried, Trump might take his chances with obstruction charges in order to actually obstruct the revelations that would actually end his presidency. Until Congress passes a veto-proof bill to protect Mueller from firing without cause, what makes Trump think that there would be a significant immediate cost to firing Mueller or Rosenstein? Every indictment raises the stakes of obstruction but also increases the chance of a temper tantrum firing with no clear consequences until Congress changes hands. If Congress can’t pass a Mueller statute, in the very least the Senate intelligence committee needs to make a more public stance.
If Trump fires Mueller, I still think the Senate Intelligence Committee or NY AG Eric Schneiderman could hire him to continue the investigation with subpoena power. But Trump firing Mueller would still delay and disrupt the investigation. Congress needs to act by giving Mueller formal job security: by statute, DOJ officials should not be able to fire Special counsels without good cause. And the President should not have the power to fire special counsels at all.
I’ll have more to come on constitutional and legal arguments for such statutes.
That was 5 pm.
30 minutes later: told ya so. And more to come.
Three people I deeply respect and admire, Norm Eisen, Caroline Frederickson, and Laurence Tribe, argued yesterday in the New York Times that Devin Nunes is [potentially] guilty of the federal crime of obstruction of justice for his role in the memo. I don’t agree.
Frank Bowman, who has zero sympathy for Nunes, lays out a good rebuttal here. I don’t agree with everything Bowman says here, but I agree with most of it.
I’ll add the following points:
Continue reading “Nunes is nuts, but he’s not guilty of obstructing justice.”
Rachel Brand used to be the next in line after Deputy Attorney General Rod Rosenstein in supervising the Mueller investigation. The New York Times has just reported that she is resigning after nine months in the job. The question of Rosenstein’s job security has been enormous from the beginning, but it is bigger than ever. The DOJ regulations assign the power to supervise — and to fire — a special counsel to the Attorney General, and Rosenstein is the acting AG on this investigation after Sessions’s recusal.
If Trump fires Rosenstein, or if Rosenstein eventually has to recuse himself, who takes over the supervision of Mueller and the Russia investigation?
Continue reading “Associate Attorney General Rachel Brand is out. Who is next in line supervising the Mueller investigation?”
I’ve been writing about the possible criminal liability of the Trump administration: Trump’s criminal liability for obstruction of justice, and his and his advisors’ potential liability for various other federal and state crimes. These questions are relevant for impeachment, even though “high crimes and misdemeanors” are not limited to statutory crimes. And these questions are especially relevant if Trump hands out pardons to undermine the investigation, because the president cannot pardon state crimes, and if Trump fires Mueller, because state prosecutors could take over the investigation and prosecution on the state level.
In response to my posts, critics have suggested that I want to “jail Trump.” The implication is that I am a “Lock Him Up!” rejoinder to the Trumpian “Lock Her Up” chant. I write here to clarify that I am calling for criminal investigation, prosecution, and potentially conviction, but not jail time (at least not at this stage for what we know now).
Continue reading “Justice Without Jail”
Don’t underrate the Eagles’ defense. But here are two observations on each side of the ball that give the Patriots an edge:
Continue reading “Super Bowl prediction “