Mueller made significant legal errors, but the right way to question and correct them is for members of Congress to hand over the microphone. It's worked before.
The Watergate & Iran Contra model: expert lawyers ask the questions. My piece in @politico:
politico.com/magazine/story…
2/ A list of the Report's errors:
#1: Campaign Coordination.
The DOJ assigned him to investigate “coordination.” His report stated “‘Coordination’ does not have a settled definition in fed criminal law. We understood coordination to require an agreement—tacit or express.”
Wrong.
3/ Congress explicitly rejected such a permissive interpretation. In 2002, Congress passed a statute declaring that campaign finance regulations “shall not require agreement or formal collaboration to establish coordination,” and any knowing and willful violations are criminal.
4/ FEC: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” w/o any requirement to prove agreement.
SCOTUS validated 2003: “Expenditures made after a wink or nod often will be as useful to the candidate as cash.”
5/ Error #2: Mueller's failure to clarify which legal standards he was using: Beyond a reasonable doubt?
A lot of confusion, enabling Barr and Trump.
By preponderance or by "substantial credible" evidence, he found conspiracy and illegal coordination. nytimes.com/2019/04/25/opi…
6/ #3: Under the right standard for "coordination," Mueller should have found crimes by Trump campaign officials with Russia, & prosecuted Manafort & Gates for campaign felonies.
Such findings would've made Trump's obstruction more compelling and damning. thedailybeast.com/robert-mueller…
7/ #4: Other indictments highlighted the factual pattern of coordination: a Trump signal followed immediately by Russian hacking or leaking.
But inexplicably, Volume I failed to note or emphasize many of these key moments.
See details here: thedailybeast.com/robert-mueller…
8/ Error #5: Manafort’s own explanation for giving detailed polling data to a Russian spy - ostensibly a defense against such felony coordination - was essentially a confession to quid pro quo: the sharing would “resolve [Deripaska’s] outstanding lawsuits” over Manafort’s debts:
9/ Why did Mueller bend over backward to accept Manafort's explanation, when that explanation is actually more evidence of criminality, and when Mueller documented so many lies, coordination with Trump legal team in violation of cooperation agreement, and destroying of evidence?
10/ #6, Concluding Manafort did not “have relevant knowledge of these legal issues,” thus didn't meet the knowing/willful requirement.
If Manafort - a lawyer & a veteran official or advisor of 4 presidential campaigns—can't be assumed to have that knowledge, then who could?
11/ Congress passed a statute with a criminal component but tried to be fair to defendants by requiring "knowing and willful" violation. But they weren't trying to make the law a dead letter. Mueller's error in favor of Manafort is a precedent that undermines this law.
12/ Error #7: A giant loophole for donors & foreign govts to give campaigns unlimited "opposition research" if it's “the recounting of historically accurate facts.”
Ideological bias against campaign finance regulation.
And it must be corrected Wednesday.
nytimes.com/2019/06/27/opi…
13/ Error #8: Did Trump know that Junior scheduled Trump Tower meeting with Russian spy? Within an hour or so, he announced "major speech" on Clintons in the same context. Other prosecutors would draw different inference from circumstantial evidence plus of lying & obstruction.
14/ Error #9: Even if under DOJ policy and Barr, Mueller couldn't indict a sitting president, why not at least question the policy? The 2000 OLC memo relies on an erroneous assumption: No such thing as equitable tolling of criminal statutes of limitations.
slate.com/news-and-polit…
15/ OLC memo assumed a president could be indicted after leaving office even if statute of limitations had run, b/c judges could stop the clock on their own.
But judges can't, so a 2-term president will often be immune for 1st campaign /1st term crimes.
Does Mueller realize this?
16/ The 10th & final error I'll list:
Even if Mueller couldn’t indict Trump under OLC policy, why did this policy have a double-whammy of Mueller not even being able to make accusations? No legal conclusions about crimes? Deliberately writing cryptically?
See Vol II p. 2.
FIN.
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