[EL] “All the Mistakes Mueller Made in Declining to Prosecute Donald Trump Jr.”

Sun Apr 21 08:29:15 PDT 2019

"The investigation has not developed evidence that the participants in the
meeting were familiar with the foreign-contribution ban or the application
of federal law to the relevant factual context."

This sentence in the report is weird, since a planning meeting about a
significant independent *domestic* dirt unearthing operation would also be
illegal --right???

Whether participants knew specifically about the foreign assistance ban or
not would not necessarily be needed to prove they had knowledge that they
were contemplating a criminal enterprise (a campaign coordinating an
independent expenditure).

As principal surrogates and operatives for a presidential campaign entering
the general election, I am confident Manafort, Kushner, and Don Jr. had
been made aware of the existence of outside spending groups and how
coordinating with them is illegal.

I am also curious to what extent there was or was not  attorney client
privilege would shield an effort to assess how McGahn and other lawyers on
the campaign briefed senior staff about campaign finance law. It seems to
me that to the extent to which lack of knowledge of illegality is a
criminal defense, one ought to be forced to waive attorney client privilege
with respect to evidence that one's purported ignorance is legitimate.

Additionally, there was weird conversation in the memo about valuation.
Committing a campaign chairman and two principal surrogates like Don Jr. &
Jared to the same meeting constitutes a clear indication that the meeting
participants felt the discussion of Russia's "ongoing" efforts to assist
their campaign would be of considerable value. Furthermore, valuation in
politics of work product is typically done with respect to cost -- and I
think it is reasonably clear that GRU resources spent more than $25,000 on
their various hacking efforts.

On Sun, Apr 21, 2019 at 11:03 AM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> Perhaps they should have asked Don Jr to testify--I don't know the
> considerations that went into that decision.  But even if they had done so,
> do you really think they would've been able to establish probable cause
> (let alone proof beyond a reasonable doubt) that he knew this was
> unlawful?  Color me very, very dubious.
>
> On Sun, Apr 21, 2019 at 10:56 AM Rick Hasen <rhasen at law.uci.edu> wrote:
>
>> Marty, this is why my piece starts with this:
>>
>> To begin with, the special counsel’s report says that Trump Jr. “declined
>> to be voluntarily interviewed” about the meeting. The special counsel
>> should have called Trump Jr. before the grand jury, as he did with other
>> witnesses. It seems likely that he declined to do so as not to incur the
>> wrath of the president.
>>
>> Trump Jr.’s grand jury testimony would have been especially important
>> given one of the key reasons Mueller declined to prosecute the president’s
>> son for this crime: lack of willfulness. In order for a campaign finance
>> violation to constitute a criminal offense (rather than a civil problem
>> handled with fines by the Federal Election Commission), one must act
>> willfully. Willfulness is a question of mental state. Getting Trump Jr.
>> before a grand jury would have been a great way to get at his mental state,
>> because he would have been testifying under the risk of perjury. This was a
>> huge missed opportunity for Mueller.
>>
>> Rick Hasen
>> Sent from my iPhone. Please excuse typos.
>>
>> ------------------------------
>> *From:* Marty Lederman <martin.lederman at law.georgetown.edu>
>> *Sent:* Sunday, April 21, 2019 6:16 AM
>> *To:* Rick Hasen
>> *Cc:* Election Law Listserv
>> *Subject:* Re: [EL] “All the Mistakes Mueller Made in Declining to
>> Prosecute Donald Trump Jr.”
>>
>> Rick:  Wasn't Mueller right, though, about this "most significant[]"
>> barrier to brining charges against Don Jr.?:
>>
>> Even assuming that the promised "documents and information that would
>> incriminate Hillary" constitute a "thing of value" under campaign-finance
>> law, the government would encounter other challenges in seeking to obtain
>> and sustain a conviction. *Most significantly, the government has not
>> obtained admissible evidence that is likely to establish the scienter
>> requirement **beyond a reasonable doubt. To prove that a defendant acted
>> "knowingly and willfully," the government would have to show that the
>> defendant had general knowledge that his conduct was unlawful*.  . . .
>> On the facts here, the government would unlikely be able to prove beyond a
>> reasonable doubt that the June 9 meeting participants had general knowledge
>> that their conduct was unlawful.  *The investigation has not developed
>> evidence that the participants in the meeting were familiar with the
>> foreign-contribution ban or the application of federal law to the relevant
>> factual context. *
>>
>>
>> On Thu, Apr 18, 2019 at 2:07 PM Rick Hasen <rhasen at law.uci.edu> wrote:
>>
>>> “All the Mistakes Mueller Made in Declining to Prosecute Donald Trump
>>> Jr.” <https://electionlawblog.org/?p=104723>
>>>
>>> Posted on April 18, 2019 10:59 am
>>> <https://electionlawblog.org/?p=104723> by *Rick Hasen*
>>> <https://electionlawblog.org/?author=3>
>>>
>>>
>>>
>>> I have written this piece
>>> <https://slate.com/news-and-politics/2019/04/donald-trump-jr-mueller-report-campaign-finance.html> for
>>> Slate. It begins:
>>>
>>>
>>>
>>> *Robert Mueller let Donald Trump Jr. off the hook too easily for
>>> potential campaign finance violations that arose from the June 2016 meeting
>>> in Trump Tower with Russian operatives. Mueller’s questionable exercise of
>>> prosecutorial discretion is bad news for how campaigns and foreign entities
>>> might conduct themselves in the runup to the 2020 elections.*
>>>
>>>
>>> * Like many others, I am still poring over Mueller’s 448-page partially
>>> redacted report <https://www.justice.gov/storage/report.pdf>. My initial
>>> general impression of Volume 1—the part dealing with Russian interference
>>> in the 2016 elections and the connections between Trump—is that Mueller and
>>> his team did a thorough and fair job in investigating what happened and in
>>> describing the facts. But on the potential campaign finance violations,
>>> Mueller fell short in numerous ways…..*
>>>
>>>
>>>
>>> *I’m afraid that this flagging of the issue does more harm than good.
>>> Mueller has now given campaigns credible reason to believe they can accept
>>> help from foreign governments because they may have a constitutional right
>>> to do so. That’s even more troubling for what it says about 2020 than what
>>> it says about 2016.*
>>>
>>> [image: Share]
>>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D104723&title=%E2%80%9CAll%20the%20Mistakes%20Mueller%20Made%20in%20Declining%20to%20Prosecute%20Donald%20Trump%20Jr.%E2%80%9D>
>>>
>>> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>>>
>>>
>>>
>>>
>>>
>>> --
>>>
>>> Rick Hasen
>>>
>>> Chancellor's Professor of Law and Political Science
>>>
>>> UC Irvine School of Law
>>>
>>> 401 E. Peltason Dr., Suite 1000
>>>
>>> Irvine, CA 92697-8000
>>>
>>> 949.824.3072 - office
>>>
>>> rhasen at law.uci.edu
>>>
>>> http://www.law.uci.edu/faculty/full-time/hasen/
>>>
>>> http://electionlawblog.org
>>>
>>> [image: signature_1852422790]
>>> _______________________________________________
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>>
>>
>>
>> --
>> Marty Lederman
>> Georgetown University Law Center
>> 600 New Jersey Avenue, NW
>> Washington, DC 20001
>> 202-662-9937
>>
>>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
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