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

Sun Apr 21 12:44:45 PDT 2019

Oh — spending money in coordination with others.   That’ a far cry from being eager to accept proffered information absent coordination its production, so I was confused

> On Apr 21, 2019, at 3:29 PM, Jeff Hauser <jeffhauser at gmail.com> wrote:
> 
> 
> " "a planning meeting about a significant independent *domestic* dirt unearthing operation would also be illegal --right???”
> 
> that can’t be true,  In fact, it’s an industry.  See GPS."
> 
> Huh?
> 
> After its GOP funding ended, GPS was paid by the Clinton Campaign and DNC. How that constitutes an independent expenditure is... beyond my understanding. Indeed, the GPS incident underscores how campaigns pay considerable sums for research at estimable market rates, and thus Russia's hacking was something of unquestioning value to Trump--a massive in kind contribution that only occurred after the Trump campaign signaled its willingness to accept such dirt on Clinton by taking the June 9th meeting. 
> 
> "The Hillary Clinton campaign and the Democratic National Committee helped fund research that resulted in a now-famous dossier containing allegations about President Trump's connections to Russia and possible coordination between his campaign and the Kremlin, people familiar with the matter said.
> 
> Marc E. Elias, a lawyer representing the Clinton campaign and the DNC, retained Fusion GPS, a Washington firm, to conduct the research.
> 
> After that, Fusion GPS hired dossier author Christopher Steele, a former British intelligence officer with ties to the FBI and the U.S. intelligence community, according to those people, who spoke on the condition of anonymity.
> 
> Elias and his law firm, Perkins Coie, retained the company in April 2016 on behalf of the Clinton campaign and the DNC. Before that agreement, Fusion GPS's research into Trump was funded by an unknown Republican client during the GOP primary.
> 
> The Clinton campaign and the DNC, through the law firm, continued to fund Fusion GPS's research through the end of October 2016, days before Election Day."
> https://www.washingtonpost.com/world/national-security/clinton-campaign-dnc-paid-for-research-that-led-to-russia-dossier/2017/10/24/226fabf0-b8e4-11e7-a908-a3470754bbb9_story.html?utm_term=.8c55d8773958 <https://www.washingtonpost.com/world/national-security/clinton-campaign-dnc-paid-for-research-that-led-to-russia-dossier/2017/10/24/226fabf0-b8e4-11e7-a908-a3470754bbb9_story.html?utm_term=.8c55d8773958>  GPS was 
> 
> On Sun, Apr 21, 2019 at 3:20 PM John Tanner <john.k.tanner at gmail.com <mailto:john.k.tanner at gmail.com>> wrote:
>  "a planning meeting about a significant independent *domestic* dirt unearthing operation would also be illegal --right???”
> 
> that can’t be true,  In fact, it’s an industry.  See GPS
> 
>> On Apr 21, 2019, at 1:33 PM, Schultz, David <dschultz at hamline.edu <mailto:dschultz at hamline.edu>> wrote:
>> 
>> 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 <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 <mailto: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 <mailto: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 <mailto:Martin.Lederman at law.georgetown.edu>>
>> Cc: Election Law Listserv <law-election at uci.edu <mailto: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 <mailto: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 <mailto: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 <mailto: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 <mailto: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.
>> 
>> <image001.png> <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
>> 
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>> 
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>> 
>> 949.824.3072 - office
>> 
>> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>> http://www.law.uci.edu/faculty/full-time/hasen/ <http://www.law.uci.edu/faculty/full-time/hasen/>
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>> <image002.png>
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>> 
>> --
>> 
>> Marty Lederman
>> 
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>>  
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>> 
>> 
>>  
>> 
>> --
>> 
>> Marty Lederman
>> 
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>> 
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>> 
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>> 
>> 202-662-9937
>> 
>>  
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>> -- 
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