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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@RickPildes 3/ Barrett picked up on the Special Counsel's argument of the absurdity that crim statutes need a clear statement, if only a tiny number of statutes include (she said only three or so). Surely Congress did not mean for presidents to be broadly immune so generally from crim law.
At @FedSoc National Student Convention, @NoahRFeldman is telling this audience that the formalist separation of powers & Scalia’s Morrison dissent are anti-originalist and dangerous…
And he’s crushing it. He is quoting Madison Federalist 47-51 and the audience is uncomfortable.
@FedSoc @Harvard_Law 3/ @NoahRFeldman says the Constitution’s original structure is functionalism and “checks and balance,” not formal “separation of powers.”
I haven’t put the point this strongly, but my research shows he’s more right than wrong.
And more historically correct than Scalia.
Thank you @NotreDameLRev (Vol. 100) for accepting "Venality and Functionality: A Strangely Practical History of Selling Offices, Administrative Independence, and Limited Presidential Power."
I'm deeply honored & excited to work with you!
#newlawrevarticles papers.ssrn.com/sol3/papers.cf…
3/ My @SSRN draft "Freehold Offices v. Despotic Displacement" has more detail on:
The Opinions Clause;
The Ratification Debates;
Common law default rules for "good cause" removal; Charts on the Founders' Bookshelf & 18th C. English dictionaries: papers.ssrn.com/sol3/papers.cf…
My good friend Jeff Cohen (@BCLAW prof. former prosecutor) persuaded me that I was wrong about a criticism of the @ManhattanDA case against Trump:
These purely internal records like paystubs could count for intent to defraud.
1/
2/ Last April, I wrote in @nytimes:
"What, in practice, is the meaning of 'intent to defraud'? If a business record is internal, it is not obvious how a false filing could play a role in defrauding if other entities likely would not rely upon it and be deceived by it."
See below:
@nytimes 3/ The statutes 175.05 & .10 require:
"falsifying business records...with intent to defraud."
A false tax return or FEC filing would defraud the govt, but I asked how a pay stub would defraud anyone if no one ever relies on it or even looks at it: nytimes.com/2023/04/05/opi…
I know legal commentators are saying "Judge Merchan denied Trump's motions and has scheduled a trial for March 25, and this is now real and happening."
Hang on. There is a real chance that Trump's lawyers win a stay in federal court. (This gets technical about abstention). 1/
2/ I'm not revealing anything the lawyers don't already know.
They've sought these kinds of stays and injunctions in fed court before against NY prosecutors.
See Trump v. Vance on Manhattan DA subpoena for tax records. Trump lost every stage but won a 1-year delay, 2019-2020.
3/ Trump's lawyers can seek an injunction in fed district court (and a stay) on grounds of 1) no state jurisdiction 2) federal preemption 3) selective prosecution, partisan bias, violation of 14th A.