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

Sun Apr 21 16:52:09 PDT 2019

There was the additional the note that the "government has not obtained
admissible evidence" with respect to willfulness, which is an intriguing
and seemingly non-accidental inclusion. (that phrase is not some form of
ubiquitous trope within the report)

On Sun, Apr 21, 2019 at 7:46 PM Trevor Potter <tpotter at capdale.com> wrote:

> Yes, that is true. But he also concluded that the activity was in fact
> illegal... just uncertain whether it could be proved to a jury “ beyond a
> reasonable doubt” that the violation was knowing and willful.
>
> Sent from my iPhone
>
> On Apr 21, 2019, at 6:59 PM, Marty Lederman <
> Martin.Lederman at law.georgetown.edu<mailto:
> Martin.Lederman at law.georgetown.edu>> wrote:
>
> 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<mailto:
> 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<mailto:
> law-election-bounces at department-lists.uci.edu>] on behalf of Jeff Hauser [
> jeffhauser at gmail.com<mailto: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
> <mailto: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<mailto:
> 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://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<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://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<
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>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
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> >
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>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
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> --
> Marty Lederman
> Georgetown University Law Center
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> Washington, DC 20001
> 202-662-9937
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> David Schultz, Professor
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