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.”


Barr’s Spin, not Mueller’s Report

My Slate piece on the Barr letter on Sunday:

On Sunday, Attorney General William Barr introduced his letter to the Senate and House Judiciary Committees by saying: “I am writing today to advise you of the principal conclusions reached by Special Counsel Robert S. Mueller and to inform you of the status of my initial review of the report he has prepared.” This introduction does not fit his letter, though: If one wanted to advise of the report’s “principal conclusions,” one would expect that more of the “principal conclusions” actually be shared.

Instead, Barr distributed parts of four of Mueller’s sentences throughout his letter—three of which offer any kind of conclusions, and none of which even appear to be complete sentences from Mueller’s text. Those sentences are obviously helpful for Trump legally and politically, but Barr’s short letter—one page on Russia, one page on obstruction—raises more questions than it even tries to answer.

What Barr put out on Sunday was not Mueller’s summary, nor a summary of Mueller. It literally contains more of Barr’s legal conclusions—after just 48 hours of review—than of Mueller’s own conclusions over almost two years of investigation. In contained zero details of the evidence that led to either man’s conclusions. Mueller surely wrote an executive summary of his findings for Barr, and it clearly would have been easier for Barr simply to give Congress and the public Mueller’s summary than to write this letter himself. The question is why Barr didn’t… [For more, follow the link]

New York State Should Investigate Trump Organization (plus an argument for either the feds or state prosecutors to indict)

My op-ed in the New York Times on Monday, March 11 is here.  I am happy to report that the New York attorney general later that day issued a series of crucial subpoenas to DeutscheBank related to the fraud Michael Cohen reported in his House testimony, and also related to older loans which may or may not address long-standing suspicions of money laundering of illegal Russian assets through DeutscheBank (the only western bank that would continue loaning money to Trump after his many bankruptcies, and a bank that has been criminally fined for laundering enormous amounts of illegal Russian money).

I note that Attorney General James had only been in office for about two months, and surely been working on those subpoenas before my op-ed, so I am not suggesting a causal link, just noting my appreciation that she is making up for former and disgraced Attorney General Eric Schneiderman’s dereliction of duty on many of these matters. It is, um,  concerning that Eric Schneiderman did not take this step in his time in office, and that delay – while Congress was held by Republicans blocking such investigations – may have permanent consequences. Barbara Underwood had only a short time as Acting AG, and to her credit, she also did something that Schneiderman failed to do: file for the Trump Foundation’s dissolution with state supervision of its assets. This move succeeded and sets the stage for further investigation.  These steps by Underwood and James are  important pieces of larger process of bringing Trump to justice.

My op-ed is behind a paywall. I am going to focus on a few main points:

“The public record establishes probable cause for campaign finance felonies, and a potential case for criminal tax fraud, bank fraudinsurance fraud and suborning perjury to hide shady business dealings — a staggering mix of state and federal crimes implicating a range of Trump Organization officials.

State attorneys general — especially New York Attorney General Letitia James — should not wait for any Justice Department official to hold Trump accountable for potential crimes. They also do not need to wait to build a case for criminal indictments. The appropriate immediate path is a special state civil proceeding against the Trump Organization and its officials.

Legal status as a corporation endows businesses like the Trump Organization with great powers, and with those powers come specific responsibilities. To police these privileges, almost every state in the country has a statute that gives its attorney general the power to bring civil actions to investigate corporations for fraud and to go to court to dissolve the ones that persistently break the law. This statutory power descended from an old English proceeding called “quo warranto,” meaning “by what authority do you exercise legal power?” The question in this case is whether the Trump Organization has so abused its privileges that it has lost this legal authority.

The Trump Organization is incorporated only in New York and Delaware, so New York officials have a unique role and responsibility. New York attorneys general have not used their power to dissolve corporations often, but as recently as 1994, they brought a civil action leading to the dissolution of a fraudulent entity. New York’s highest court has described this remedy of civil dissolution as a “judgment of corporate death,” and for the state to invoke such a corporate death penalty, the corporation’s “transgressions” must not be merely incidental, but “material and serious; and such as to harm or menace the public welfare.”

If a state civil investigation turned up more evidence of criminal fraud, state and federal prosecutors could use these findings to indict the Trump Organization and its officials, including Mr. Weisselberg.

In addition to allegations of campaign finance felonies, Mr. Cohen also alleged that Mr. Weisselberg, along with the Trump Organization officials Mr. Lieberman and Mr. Calamari, engaged in insurance fraud, bank fraud and tax fraud by dishonestly inflating and then deflating the valuation of Trump assets for insurance, banking and tax advantages. Keep in mind that the Southern District of New York, when it was headed by Rudolph Giuliani in 1988, indicted a state legislator for overvaluing property and submitting false financial statements…

Mr. Weisselberg is more likely to cooperate if the New York attorney general and state prosecutors have already begun to investigate his conduct. President Trump cannot use a pardon to rescue Mr. Weisselberg from state prosecution; presidential pardons do not affect state criminal liability. Moreover, unlike federal prosecutors at the Southern District of New York or in Robert Mueller’s office, Mr. Trump cannot fire or interfere with them.

The window for these prosecutions to move forward is closing. The states are a complementary law enforcement system, and they can do what Mr. Mueller might not be able to do: Send a message that the president is not above the rule of law.

This state investigation might turn up evidence that President Trump committed crimes himself. If the Justice Department will not indict a sitting president, we must ask what is worse: the potential distraction of states indicting presidents, or the crisis for the rule of law of presidential immunity, especially during a re-election when those crimes may recur with the goal of four more years of impunity. If the specter of state indictments is unsettling, that is a reason to allow federal prosecutors to bring indictments instead, perhaps building on state officials’ findings.

Indictments, even if trials are long delayed, at least serve an important message from law enforcement to society about legal norms. Even if justice is delayed, no one will be above the law.”

Can Congress Subpoena the Trump-Putin Translator? Thinking 4-dimensionally about 3 branches

I’m stuck in bed with some kind of unpleasant bug this morning, so if my approach here is nuts, chalk it up to the bug.  And I had a hard time sleeping last night, not only because of the bug, but because of this outrageous story:

“President Trump has gone to extraordinary lengths to conceal details of his conversations with Russian President Vladi­mir Putin, including on at least one occasion taking possession of the notes of his own interpreter and instructing the linguist not to discuss what had transpired with other administration officials, current and former U.S. officials said.”

There is a robust debate about whether the House or Mueller can subpoena the translator or whether Trump could invoke executive privilege. On the one hand, the Supreme Court in U.S. v. Nixon clearly approached executive privilege as a balancing test, not a blanket rule.

On the other hand, dicta in U.S. v. Nixon indicate a special protection of diplomatic/foreign executive communication, and Eric Columbus flagged this remarkable twist: an OLC opinion recognizing this concern was written by AG nominee Bill Barr. See Eric’s thoughtful thread here. The counterargument is that these circumstances are so extraordinary, and the basis for suspicion of criminal conduct are so valid, that the normal rules no longer apply.

I have thought about the balance of these two positions, and how to make sense of them through the lens of separation of powers. I think one answer is to think four-dimensionally about the three branches, meaning that they work out stages over a sequence of time back-and-forth.

  1. In ordinary circumstances with normal presidents, privilege applies.

In the US v. Nixon balance, one would need some strong reason to override executive privilege in regular White House communications, but especially extraordinary circumstances to override privilege in dlplomatic/foreign national security communications

2. What kinds of especially extraordinary circumstances? When there is already existing evidence of gross maladministration/misconduct/potential criminal conduct, fiduciary misdemeanors of self-serving conduct. In short, one would need evidence of some level of high crimes or high misdemeanors to pierce the privilege in diplomatic/foreign contacts.

3. And now, we have that evidence in spades.

4. Once we have that level of evidence, the appropriate process under our Constitution is impeachment and removal. That process might be necessary before overriding executive privilege.

5. The Court might say something like this: “This is a close case. But rather than have the judiciary intrude on the executive branch’s privileges when we have sufficient evidence of misdemeanor (or worse), let’s follow constitutional structure of impeachment first. Give the political branches the opportunity to address this sufficient evidence first.”

7. By January 2020, it’s no longer an impeachment/removal case. It becomes a criminal investigation. (And I’ve explained recently in Slate why prosecutors must be able to indict a sitting president: many crimes have statutes of limitations that would run out in a first or second term, and there is no such thing as equitable tolling of criminal statutes).
9: Message from Court: We are going to give the political branches the first opportunity to address probable cause of high crimes and misdemeanors, without crossing into executive privielge. But Senate, don’t make us have to step in. If you, the Senate, are so dysfunctional, partisan or corrupt to do your job, we will be forced to take extraordinary measures.

Qui Tam like Agnew: Could you, a taxpayer, sue Trump and family for fraud? [Updated]

Ok, so after helping my wife and kids get onto the ski hill on Christmas, I’m back in our rental condo, listening to podcasts while walking the dog and reading about old English writs that might apply to Trump. Seriously. I’m having the most fun: using English legal history as a strategy to hold the madness of King Donald accountable.

I listened to Rachel Maddow’s podcast “Bag Man” on the rise and fall of Spiro Agnew, and it’s absolutely a must-listen. Spoiler: Agnew resigned in 1973. Second spoiler: he pleaded no contest, served no jail time, and kept his bribes. But I was particularly intrigued in Episode 6 by the interview with George Washington Law Professor John Banzhaf, famous for activist public-interest litigation, and the students from his class (John McMillan, Reina Chassy and Suzanne Saul) who brought a private citizen taxpayer lawsuit against Agnew and two co-conspirators in 1976 (third spoiler…) and won.  In 1982, in Agnew v. State, 51 Md.App. 614, 446 A.2d 425,  a Maryland appellate court upheld the lower court order for Agnew to repay the state of Maryland about $250,000. (Bonus trivia: Diana Motz was on the brief for Maryland as the assistant attorney general, before she became esteemed and Honorable Judge Motz on the 4th Circuit). Here are two Washington Post stories here and here. If you read that Agnew might get a tax deduction for these repayments, note that he did not get a big state tax refund for these repayments.

The Maddow podcast explains that these student/taxpayers used an old civil proceeding from English law, but understandably doesn’t specify on the podcast. NBC provides sourcing here (but some of it is pay-walled). The available court records and news reports don’t provide such details – perhaps because that old English proceeding was codified into statute. But I have a feeling they are talking about qui tam. Should we start talking about it again?

Continue reading “Qui Tam like Agnew: Could you, a taxpayer, sue Trump and family for fraud? [Updated]”