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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🧵 from @jdmortenson on Sai Prakash & Aditya Bamzai is devastating.
It has serious legal implications - and it is actually much worse.
Julian & I have asked questions for years privately & politely.
I regret that it has come to this.
I regret I didn't call them out 4 yrs ago. 1/
2/ I emailed Prakash questions about his use of sources in May 2020, early in Covid, in his article "New Light on the Decision of 1789," while Seila Law was pending.
He never addressed them. Instead, he & @adityabamzai repeated them & added new misuses: papers.ssrn.com/sol3/papers.cf…
3/ I sent drafts to Prakash detailing my concerns.
In 2020, I co-organized a conference at Stanford & invited Prakash (Covid pushed to 2022).
He accepted, but when he asked if I would be debating past work, he cancelled w/ no explanation.
It gets worse. law.stanford.edu/events-archive…
This scare tactic - that the GOP will challenge any new nominee - is meritless nonsense, belied by Speaker Johnson's inability to specify any legal argument.
(See election law experts like @rickhasen in thread)
It tells you the GOP is desperate to keep Biden on the ballot. 1/
“I don’t put any credence into it,” says @RickHasen. “Biden is not the party’s nominee now, and states generally point to the major party’s nominee as the one whose name is on the ballot.”
I've read Judge Cannon's dismissal of the Mar-a-Lago case, ruling Special Counsel Jack Smith's appointment was invalid.
I am shocked but not surprised.
Clearly she was desperate to dismiss the Watergate case US v. Nixon & DC Cir. precedents in order to dismiss this case.
1/
2/ Cannon's decision is mostly statutory interpretation, not con law, ruling Smith's appointment does not have a statutory basis.
She doesn't rule directly on the constitutional issues, but she sneaks them in through "clear statement" rules, a now infamous Roberts Court move.
3/ I acknowledge the statutory basis for Smith's appointment is not textually obvious.
Judge Cannon actually does a good job explaining that the statutes that the DOJ relies on are not clear or leave questions.
But what do judges do when they have such doubts?
Trump v. US thread.
Opinion below.
Bottom line #1: I agree that a Jan 6 trial cannot happen before the election (That was almost certain when the Court took this case)
2/ The Court remanded the case.
Commentators are overlooking the Court's emphasis on "presumptive immunity," rather than "absolute immunity."
See Chief Justice Roberts's concise summary at p. 6 below.
This presumption still opens a big door for trial court evidentiary hearings.
3/ The Court holds "absolute immunity" for "core constitutional powers" (p. 6 above).
But what are those "core" powers?
p. 8: "Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his 'conclusive and preclusive' constitutional authority."
I'll be live-tweeting tonight's debate, to the extent that I can keep up and have the stomach for it.
🧵 1/ I note that Donald Trump has already lost the expectations pre-game, which may (or may not) be a big deal. politicalwire.com/2024/06/27/mor…
2/ "A @nytimes Siena College poll found 60% of registered voters thought Trump would perform 'very' or 'somewhat' well in tonight’s debate. Only 46% said the same of Biden.
Overall, nearly half of voters anticipated a poor showing for Biden."
Low expectations. Maybe good news?
@nytimes 3/ I'm sorry this matters, but Biden has a frog in his throat, and even when he cleared the frog, his voice is flat and monotone. His answer on inflation is fine substantively, but the vocals are really not good.
His answer was good.
But he sounds weak.
@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.