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

Sun Apr 21 13:12:10 PDT 2019

Again:  Do you really think it's likely--let alone that Mueller would have
been able to adduce proof beyond a reasonable doubt--that Don, Jr. *knew *that
this was unlawful, as opposed to simply assuming it's "how hard-nosed
politics works," as Rudy G. even continues to say to this very day?

On Sun, Apr 21, 2019 at 4:03 PM Jeff Hauser <jeffhauser at gmail.com> wrote:

> John, the Trump Tower meeting was "part of Russia and its government's
> support for Mr. Trump."
>
> That support was *uncompensated."  If a domestic outlet wants to help a
> candidate with oppo they can surely do so (e.g., American Bridge, America
> Rising) -- but having a private meeting about private oppo in advance of
> publication would not, I would think, be legal.
>
> i.e., either of the two partisan oppo shops (or smaller such entities) do
> not have sneak peak preview meetings with campaigns. Because it would be
> illegal. Instead, they make stuff publicly available. So what about the
> Russian effort being foreign makes the effort any more legal?
>
>
> On Sun, Apr 21, 2019 at 3:45 PM John Tanner <john.k.tanner at gmail.com>
> wrote:
>
>> 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
>> GPS was
>>
>> On Sun, Apr 21, 2019 at 3:20 PM John Tanner <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>
>>> 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
>>>
>>> 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.*
>>>>
>>>> <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
>>>>
>>>> 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
>>>>
>>>> <image002.png>
>>>>
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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
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>>> Twitter:  @ProfDSchultz
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>>>
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-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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