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

[Marty Lederman]

Uh, oh:  Brad and I agree on something!  Not that there's "nothing
there"--there might well be, so I'm
not willing to go that far--but that Mueller reasonably concluded that
proving knowledge of illegality would have been a tall order.

Sent from my iPhone

On Apr 21, 2019, at 6:50 PM, Smith, Brad <BSmith at law.capital.edu> wrote:

A lot of people--including the Mueller team--are jumping past an important
step here.

But first, ...

Jeff is wrong when he says that young Trump should have known he couldn't
take oppo research from a Russian agent. It's not even clear that that is
true, and it's certainly not true that a he would have even known that that
might or likely could be true. We used to wrestle with this question fairly
often at the FEC--whether something given to a campaign constituted a
"thing of value." As Eugene Volokh has pointed out, surely (?) it is not a
"thing of value" if a person approaches a campaign with a story about the
candidate's past--say, calling attention to his college year book in which
he appears to be posed in blackface and given the nickname "Coonman." That
almost certainly is covered by the first amendment. More formal opposition
research may be a different result, but to suggest that this is a obvious
and any reasonable person in young Trump's position would know this is
wrong. And you'd still have the valuation issue that the Independent
Counsel raised.

Rick tries to elaborate by suggesting that because they had a good campaign
counsel in Don McGahn, they should have known that this might constitute a
violation (again, it's not at all clear that it would), but even if true
that doesn't really change much. Even if one were briefed on campaign law
generally, it is doubtful that this type of situation would have come up,
and so we're back to square one on intent.

Jeff then falls back on a coordination argument. But here's where everyone
is overlooking a key step--even if accepting info from the Russians were
illegal, and even if young Trump understood that to be true (which, again,
as a matter of law if not clear)--he still has to either solicit or accept
a contribution.

It is not illegal to meet with someone who offers you a product, service,
or information that the person claims will be extremely valuable to your
campaign. If a Hungarian fortune teller convinces a campaign to meet with
her where she will inform them of a way to use telepathy to gain votes,
there is no illegal activity in taking the meeting. You have to accept or
solicit a contribution. Young Trump and others met with the Russians,
learned that they didn't haven anything, and left. That is neither
soliciting nor accepting a foreign contribution. For example, if the
Russians had appeared to have good information, the Trump team might have
said, "How much does this cost us?" That would be perfectly legal. For
example, you can hire a foreign national--say a former British spy--to dig
up dirt on your opponent or write up a salacious, fictional report and feed
it to the media and the FBI. Or the Russians might have offered a tip that
the Trump people would have to research/verify themselves (that would
probably be fine, see the example in the first long paragraph of this
post). Or perhaps they thought the source of the information might be a
lawful permanent resident who would be contributing within the legal limit.
One can think of several other plausible, innocent scenarios. Some might
say here, "that's preposterous, we know that's not what young Trump and the
others intended." Really? Prove it. Not so easy, is it?

You have to have an actual solicitation or an actual acceptance of a
contribution. That simply did not occur,  based on the facts presented in
the Mueller report.

So you need to add this to the problems that the independent counsel
already identified. In my view, having sat in the enforcement chair, there
really is nothing to this allegation of a campaign finance violation.

*Bradley A. Smith*

*Josiah H. Blackmore II/Shirley M. Nault*

*   Professor of Law*

*Capital University Law School*

*303 E. Broad St.*

*Columbus, OH 43215*

*614.236.6317*

*http://law.capital.edu/faculty/bios/bsmith.aspx
<http://law.capital.edu/faculty/bios/bsmith.aspx>*
------------------------------
*From:* Law-election [law-election-bounces at department-lists.uci.edu] on
behalf of Jeff Hauser [jeffhauser at gmail.com]
*Sent:* Sunday, April 21, 2019 4:02 PM
*To:* John Tanner
*Cc:* Law and Courts list; Election Law Listserv
*Subject:* Re: [EL] “All the Mistakes Mueller Made in Declining to
Prosecute Donald Trump Jr.”

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
>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fschultzstake.blogspot.com%2f2019%2f04%2fthe-mueller-report-why-trump-is-so.html&c=E,1,Gv2f4rBnsLpmK23nAWrofqbAdzS6vK77xeo1tJvV0EBYz6Dao14G6ZZGAT9uUt4_spaivt4geqyVuvvMy_x6OsXOe-_BJV3dGaazU6o2ZM9j7Gg9jzk,&typo=1>
>>
>> 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://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d104723&c=E,1,AAZYf1QdfX15xzeo7HIMBdsJtmXnT7gTcDUfrbolNp2xYQMWH9eP1Z-FQnLSc2ASPhqu6TtESRO84LoKWfEQDQEHLd9T6i1IvSmwsv7lR_uSaGw,&typo=1>
>>>
>>> Posted on April 18, 2019 10:59 am
>>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d104723&c=E,1,X-G0kcXtAHMW8XlfgDm6oGbHqzYXwRJcCfBrLf-CFThdQrsf-oLvhla3xJgDq2oLhHhwKl_KakreJ0Bx4d8O14Zb6JEKKGW8fWPN9jhNCgION1IQ5Q,,&typo=1>
>>>  by *Rick Hasen*
>>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,3iUO_uYi4v-5hGvIKOW2DR9O1sYhKHU6-Y_0tHkEmMXSSZ5qqIbuGsS2gNQ2uX_87aGMHH_2-DW0aw7ugkE2inj5uLqNGHeuNyKbNgRCMgQh&typo=1>
>>>
>>>
>>> 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://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d1&c=E,1,QMUF8-QvbGPJi2Nqg-RIP6fmo-NyPhubMBIehXdBsHTXdhEdJ9T2SMqAtyNRi0whScZuAFi1O7O8FEWZmLDNvIA9ikqs5KxhNe4ARq1ZNw,,&typo=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/
>>> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.law.uci.edu%2ffaculty%2ffull-time%2fhasen%2f&c=E,1,WZC8rOjzFXQdVURHt_Eis4IqYhvgwKULw4HaXv0jThDKdPtannFHbphecIm2EPMaRN2WV2BxGZHbG7vh9bG1108D_yauVe_X-kDa4jo4hLlFINMU&typo=1>
>>>
>>> http://electionlawblog.org
>>> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f&c=E,1,jz9ocqCrpP0rwFzR3v4DKz18QZQ1TTCPTWuTOwW0uwYcedRMi7PlZisHUZTXg6UAT5lJbxa_71qAjmjJ9FyfrZdPom8Cddp3RMhGD7Am8J0,&typo=1>
>>>
>>> <image002.png>
>>>
>>> _______________________________________________
>>> Law-election mailing list
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>>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fdepartment-lists.uci.edu%2fmailman%2flistinfo%2flaw-election&c=E,1,b7kMSGbWvcaJXfUsbWAPb1jsTblQUKLNfq5BuzAa4rRLkyqSxC1DPhDN2yFyZvnMvrOcs6WX6kSu4f-LiiOxC-nBycBaXGjJw4q9WBoXSN8Krz4,&typo=1>
>>>
>>>
>>>
>>>
>>> --
>>>
>>> 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
>> St. Paul, Minnesota 55104
>> 651.523.2858 (voice)
>> 651.523.3170 (fax)
>> http://davidschultz.efoliomn.com/
>> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fdavidschultz.efoliomn.com%2f&c=E,1,XIBSXXE9OWx2PIgexQOwyz8IxtL1tOf4FVQHlQnwWHWAa58RwX_MT_Z50quze9xRSaxu4eNb1aZjOODQryzqRF9FJBeOPqD8IAHAecmqY8JxbCHwOHKi00veaybf&typo=1>
>> http://works.bepress.com/david_schultz/
>> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fworks.bepress.com%2fdavid_schultz%2f&c=E,1,4T_nLjBgQYhxT3ESfauxkKNeTJYjVm2HG2x6kb4jcmZZ8sdGXHCVO30_CTkItox7g6gLwkptVVSCcZGuujl2Geo_k3p_0ioRL2hAAH4XaLrl-gRpzcW2fA,,&typo=1>
>> http://schultzstake.blogspot.com/
>> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fschultzstake.blogspot.com%2f&c=E,1,B5oAKinYWnrLsFXopjLD9ELwpwDmvI8I4fNz2T268jdb574SXAUsvhxy7kqzkafMYBWl74DfiBY3PWjRAAoDUulxlaaltRoXK7vklc72HE5WANiMa_DrKA,,&typo=1>
>> Twitter:  @ProfDSchultz
>> My latest book:  Presidential Swing States:  Why Only Ten Matter
>>
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>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2frowman.com%2fISBN%2f9780739195246%2fPresidential-Swing-States-Why-Only-Ten-Matter&c=E,1,WDQHqRWBLMo94TpIZKMp-qMBODSaWmYpfHO8_BSqudellkahtClMoy0k8B0Vs_vXSqlAKCGnotfJZ1Mx7sKz4K9TwYm50wwDplbC_QiZ4tqBsmGwtDDUkWL7&typo=1>
>> FacultyRow SuperProfessor, 2012, 2013, 2014
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