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

Jeff Hauser jeffhauser at gmail.com
Sun Apr 21 13:29:18 PDT 2019 

I think Mueller will be able to show that it is overwhelmingly likely that
Don Jr. had been briefed that it was illegal to coordinate with outside
groups. (same with Jared & (especially) Manafort)

I am extremely skeptical a jury would find Don Jr. credible in denying that
claim.

On Sun, Apr 21, 2019 at 4:12 PM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> 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>
>>>>>
>>>>> _______________________________________________
>>>>> Law-election mailing list
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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
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>>>>>
>>>>> _______________________________________________
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>>>>
>>>>
>>>>
>>>> --
>>>> David Schultz, Professor
>>>> Hamline University
>>>> Department of Political Science
>>>> 1536 Hewitt Ave
>>>> MS B 1805
>>>> St. Paul, Minnesota 55104
>>>> 651.523.2858 (voice)
>>>> 651.523.3170 (fax)
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>>>> http://works.bepress.com/david_schultz/
>>>> 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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>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
>
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