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

Sun Apr 21 10:33:08 PDT 2019

Dear Colleagues:
Here is an advanced preview of my Counterpunch essay coming out Tuesday.

My latest blog:  The Mueller Report: Why Trump is so inept he cannot even
obstruct justice effectively
https://schultzstake.blogspot.com/2019/04/the-mueller-report-why-trump-is-so.html

On Sun, Apr 21, 2019 at 10:47 AM <larrylevine at earthlink.net> wrote:

> Is this the gang that couldn’t shot straight. From Trump on down, they
> kept trying to break the law and bungling it. Sure, there appear to have
> been some who just disobeyed Trump’s directives and saved him from himself.
> But others just seem to have tripped all over themselves in inept attempts
> to do illegal stuff.
>
> Larry
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Jeff Hauser
> *Sent:* Sunday, 21 April 2019 8:29 AM
> *To:* Marty Lederman <Martin.Lederman at law.georgetown.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] “All the Mistakes Mueller Made in Declining to
> Prosecute Donald Trump Jr.”
>
>
>
> "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
>
>
>
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-- 
David Schultz, Professor
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
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http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Presidential Swing States:  Why Only Ten Matter
https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
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