The Conspiracy to Defraud the United States Backbone of the Internet Research Agency and Manafort Indictments

In this post, I suggested there was an important parallel between the structure of the Internet Research Agency indictment rolled out Friday and the Paul Manafort and Rick Gates indictment.

Both use a conspiracy to defraud the US (of its ability to enforce campaign finance and transparency law) as their backbone.

Just as way of comparison, Charge 1 in the IRA indictment alleges conspiracy to defraud the US because defendants impaired the lawful functions of the FEC, DOJ, and State in administering disclosure about foreign involvement in US politics.

From in or around 2014 to the present, in the District of Columbia and elsewhere, Defendants, together with others known and unknown to the Grand Jury, knowingly and intentionally conspired to defraud the United States by impairing, obstructing, and defeating the lawful functions of the Federal Election Commission, the U.S. Department of Justice, and the U.S. Department of State in administering federal requirements for disclosure of foreign involvement in certain domestic activities.

Charge 1 in the Manafort indictment alleges conspiracy to defraud the US because the defendants impaired the lawful functions of DOJ and Treasury to require disclosures about foreign political activity in US politics.

From in or about and between 2006 and 2017, both dates being approximate and inclusive, in the District of Columbia and elsewhere, the defendants PAUL J. MANAFORT, JR., and RICHARD W. GATES III, together with others, knowingly and intentionally conspired to defraud the United States by impeding, impairing, obstructing, and defeating the lawful governmental functions of a government agency, namely the Department of Justice and the Department of the Treasury, and to commit offenses against the United States, to wit, the violations of law charged.

Whatever else is true, both indictments start there, and go onto other related crimes (compellingly money laundering for Manafort and identity theft for IRA) from there.

Several people have already commented on the use of the conspiracy to defraud as backbone in the IRA indictment. Jamil Jaffer (not the Knight Foundation civil liberties guy, but the hawkish former DOJ NatSec guy) argued that this structure might provide a way to charge Americans who help foreigners interfere with our elections.

Today’s indictment also represents a significant step forward for the Mueller investigation and, in many ways, breaks new ground for a federal indictment. The conspiracy charge is significant because if upheld by a federal court, it shows how additional conspiracy charges might be brought against individuals–even Americans–that help foreigners interfere with our electoral system.

The Democrats’ campaign finance guru Bob Bauer laid this out in considerable more depth. He starts by observing that while evidence of campaign finance violations is abundant, Mueller instead uses only the backbone.

The indictment alleges facts that support charges of federal campaign finance law violations—such as the prohibition on foreign national contributions—but does not charge any such offenses. This is clearly not for want of evidence, since the indictment sets out in considerable detail the millions in foreign national spending to influence the 2016 election.

While it’s not clear that this is why Mueller approached it this way, Bauer notes that foreigners aren’t going to comply with campaign finance laws and the FEC is largely dysfunctional anyway.

Now, of course, those engaged in illegal campaign finance activity, such as spending from foreign national sources, won’t ever make an exception and comply with self-incriminating reporting requirements. And the irony of the premise–that the FEC would get the job done if given the needed facts–will not be lost on those who have observed the agency’s decline.

So, while in that paragraph, he didn’t go that far, Bauer implies that Mueller couldn’t charge campaign finance violations because the legal infrastructure for enforcing our country’s campaign finance laws has been shredded.

When I pointed out this parallel on Twitter, Jaffer argued the difference was that the Manafort indictment charged FARA violations (counts 3 through 6) in addition to the conspiracy to defraud backbone.

Plus in the Manafort case, it isn’t just a pure bootstrap because they they also charge the underlying crimes. Here, not so.

But let’s look at what Paul Manafort lawyer Kevin Downing argued after his arraignment: the surprising thing about the Manafort indictment is that Mueller charged Foreign Agents Registration Act, because it had so rarely been charged before and only once led to a conviction.

Today, you see an indictment brought by an office of Special Counsel using a very novel theory to prosecute Mr. Manafort regarding a FARA filing. The United States government has only used that offense six times since 1966 and it only resulted in one conviction.

Downing doesn’t dispute the letter of the law. He instead credibly disputes that Manafort could be expected to believe the law means what it says because it has never been enforced.

Admittedly, immediately after the indictment, there was a surge of compliance with FARA.

The number of first-time filings like SCL Social Limited’s rose 50 percent to 102 between 2016 and 2017, an NBC News analysis found. The number of supplemental filings, which include details about campaign donations, meetings and phone calls more than doubled from 618 to 1,244 last year as lobbyists scrambled to avoid the same fate as some of Trump’s associates and their business partners.

But that is, itself, testament to the fact that, at least when charged, no one believed FARA was a law. FARA, like other prohibitions on foreign campaign donations, didn’t work because those donating the money didn’t give a fuck and the agencies — FEC, DOJ, State, Treasury — mandated with protecting us from foreign tampering couldn’t do their jobs without the required reporting.

So we have a range of dysfunctional campaign transparency and finance laws, and two indictments charged as conspiracy to defraud the agencies empowered to oversee those laws, and only thereafter substantiated with more traditional crimes like money laundering and identity theft.

You see the parallel yet?

After arguing that FEC doesn’t work anymore anyway, Bauer argues you’re not going to charge foreigners with campaign finance violations because that would break too much legal ground.

Mueller and his team may have concluded that straight statutory campaign finance allegations rest on too much untested ground and would complicate what may well be the next phase of their investigation.  This consideration would not affect the foreign national side of the case: Foreign nationals are plainly prohibited from spending in the manner detailed in the indictment. But how the law reaches American co-conspirators is less certain, and the special counsel’s theory of the case, pleading the campaign finance aspect of the case through conspiracy-to-defraud, may allow more securely for the prosecution of American actors.

So to sum up thus far: campaign finance expert Bob Bauer, after admitting the FEC has been gutted, further argues that the theory of the conspiracy to defraud is necessitated by the involvement of foreign actors. His argument is based largely on the exclusion of FEC charges.

Yet Bob Mueller omitted any direct charge for violations of the Federal Election Campaign Act.

Instead, the indictment builds the campaign finance issues into a conspiracy to defraud the United States—it alleges that the Russians conspired to obstruct the capacity of the Federal Election Commission (FEC) to enforce the law.  The act of obstruction was a failure to report their illegal expenditures. If the FEC did not know about the expenditures, it could not enforce the law.

Click through to read that part of Bauer’s argument. Bauer seems to argue (I’m not convinced) that Mueller left off the FEC violations because he was only indicting foreigners.

But Bauer turns immediately to an invented necessity (having already proven that the underlying law is basically defunct) of sucking in Americans’ complicity that otherwise might hypothetically be covered by FEC.

If, however, Mueller possesses evidence of Americans’ complicity in these violations, he may have decided on a different theory of the campaign finance case that more reliably sweeps in U.S. citizen misconduct.

On the face of it, the law prohibits a U.S. campaign or person from “soliciting” something “of value” from a foreign national, and it bars rendering “substantial assistance” to illegal foreign national spending. It seems clear that the facts known to date implicate these rules. It is also true that there is little precedent and arguably an increased risk of a defense grounded in the “vagueness” of these prohibitions.  Some commentators have expressed unease about the constitutional limiting principle that would govern the enforcement of these provisions. I do not share this view, but it is held strongly in some quarters and, therefore, appropriately and respectfully noted.

The Mueller indictment is conceivably one way to solve this problem.

Bauer argues, breathtakingly, that instead of using America’s defunct campaign finance and transparency law, Mueller can use America’s insanely overbroad conspiracy law.

It alleges a conspiracy to prevent the FEC from taking up and addressing the regulatory issues, and American co-conspirators may be brought in on any overt act in furtherance of this illegal scheme. Any U.S. citizen who intentionally supported the Russian electoral intervention could be liable. Examples would include U.S. citizens engaged in conversations like those in Trump Tower in summer of 2016, or Don, Jr.’s communications with WikiLeaks about the timing of the release of stolen emails.  The conspiracy to defraud the United States could also envelop any Americans who helped cover the Russians’ illegal electoral program by lying to federal authorities about the campaign’s Russian contacts.

That is, Bauer is imagining Mueller might charge Trump associates in a conspiracy with IRA because they did really attenuated things — things like meeting with Russian lawyers in Trump Tower — that are associated with the conspiracy. That’s effectively what Jaffer argued, thought not in as unattenuated a way. “It shows how additional conspiracy charges might be brought against individuals–even Americans–that help foreigners interfere with our electoral system. ”

Maybe Bauer, who has the advantage of actually being an expert and a lawyer and a muckety muck, is right on this point.

But my guess is Mueller is, thus far, doing something more modest and more exciting.

To understand why, consider what Manafort is both alleged, in his indictment, to have done, and what is hanging over his head. He is alleged to have laundered both political influence (via some subordinate lobbying firms, including Tony Podesta’s) and money. The allegation is that this money and influence stems from misrepresenting the interests of his pro-Russian Party of Regions work in influence-peddling in the United States.

It is illegal to act as an agent of a foreign principal engaged in certain United States influence activities without registering the affiliation. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to provide a detailed written registration statement to the United States Department of Justice. The filing, made under oath, must disclose the name of the foreign principal, the financial payments to the lobbyist, and the measures undertaken for the foreign principal, among other information. A person required to make such a filing must further make in all lobbying material a “conspicuous statement” that the materials are distributed on behalf of the foreign principal, among other things. The filing thus permits public awareness and evaluation of the activities of a lobbyist who acts as an agent of a foreign power or foreign political party in the United States.

Effectively, the Manafort indictment argues that Manafort illegally hid the influence of Russian money and persuasion on US politics — in the form of face-to-face lobbying, among other things — in the same way that IRA obscured the financial backing and persuasion of Russia in the 2016 operation. The hidden object, Russian money and influence, is the same in both conspiracies to defraud the US indictments.

One of the biggest complaints from Republicans about the Manafort indictment, including from the President, is that Manafort’s Party of Regions work has nothing to do with his campaign. But once you define it as a conspiracy to hide Russian involvement in our politics, it goes right to the heart of whether the people running the Trump campaign, via their one-time campaign manager Paul Manafort, were honest about whose interest the campaign served.

Which brings us to the stuff hanging over Manafort’s head, the stuff Mueller seems to be trying to flip him to get. Manafort is suspected of acting as Trump’s campaign manager during key periods of staffing and policy commitment while serving the interests of Russia via some oligarch cut-outs, notably but not exclusively Oleg Deripaska.

It’s not clear how you’d charge this, in an era where campaign finance and transparency are dead. Particularly given that Manafort worked for free, bypassing every law imposed on actual donations, and therefore making it really easy for a foreign country to pay you to run a campaign.

Until you get to the conspiracy to defraud framework, to Manafort’s role in a conspiracy to hide the fact that the Russians were actually paying him to ensure Trump got elected.

I don’t actually think Don Jr will be charged (as Bauer surmised might be possible) with conspiracy to defraud based off the IRA indictment because he attended that June 9 meeting; the campaign’s data people might be different.

Which is to say that Mueller is not going to name Trump or his spawn in a conspiracy to defraud the government based off really attenuated claims that the conspiracy all derived from the IRA operation. The import of the Manafort charges (even in the limited form they exist) is that Mueller seems to be larding on the “conspiracy to defraud” charges from multiple directions, from Russians and whatever co-conspirator intermediaries to those who paid Manafort’s bills for getting Trump past the challenge of the Republican convention. Though I expect once that Marine running SCO gets all his leverage points into place they might all have that conspiracy to defraud structure. Including, I suspect, the foreign policy priorities implemented, at Jared Kushner’s direction, immediately after the election.

There are many acts, starting with the June 9 Trump Tower meeting, where principals might have criminal liability directly. But the IRA indictment made me realize why the Manafort indictment was so solidly within the scope of Mueller’s authority: because the larger project is to demonstrate that, by bypassing the agencies mandated with preventing foreign sabotage of our democratic process, the Russian-backed efforts broke a more fundamental law.

And I’m certain they’ll get there with far more evidence than Mueller laid out in the IRA indictment. But I suspect they all will use that conspiracy structure as backbone.

Update: Cleaned this up for clarity purposes.

97 replies
  1. dc says:

    This is provocative:
    “Particularly given that Manafort worked for free, bypassing every law imposed on actual donations, and therefore making it really easy for a foreign country to pay you to run a campaign.”

    How to get whole with Deripaska and get a few more carpets for the missus.

    • Trip says:

      I’m not so sure Deripaska ever made an actual ‘loan’. I’m thinking it was an investment instead (toward more personal income out of the laundry), or funds toward a bribe (per Navalny), or actual income payments (on a job that didn’t get done the way he wanted)?

      • Dev Null says:

        Perhaps I shouldn’t be commenting here because I don’t have the encyclopedic knowledge of the scorecard (so feel free to ignore what follows) …

        … but this is too opaque for me to grok.

        Are you perhaps suggesting that Deripaska somehow (with malice aforethought) set up Manafort years in advance by paying Manafort for tasking that Deripaska knew Manafort could not deliver?

        I mean, it wasn’t a loan in any real sense, amirite? Deripaska tasked Manafort, and Manafort failed to deliver (as you suggest in your last parenthetical clause.)

        • Trip says:

          I think he set him up (Manafort) with funds believing he could deliver. My parentheses indicating he (Deripaska) might not have gotten what he wanted out of it. He’s still on the oligarch ‘list’ and the US hasn’t eased up on the Ukraine situation. Or perhaps Manafort spent all the money not laundering it and giving it back ironed and folded to Deripaska? Or, Deripaska earmarked some of the money toward campaign funding, but again, might not have gotten the exact result he wanted (still on the list).

          Or, maybe he did. Filing suit against Manafort could be a signal to keep his mouth shut.  I haven’t a clue. Perhaps it’s all every ‘innocent’. *(Just a stream of consciousness)*

  2. RS says:

    Isn’t it possible to extend the conspiracy backbone concept to the acts of “obstruction”? This potentially gets around the issues of POTUS executive branch rights over the DOJ and may also be the reason why Rosenstein has not needed to recuse himself from the investigation. In other words, the acts of obstruction were all just part of the conspiracy.

    • emptywheel says:

      Yes, I think so. I hadn’t included it here (I did add in the foreign policy priorities, though), but I think you’re right.

    • Falls says:

      Huh. Interesting.

      And then assuming SCO is using indictments as its “reports,” or its “paper trail,” as Marcy argued in her first IRA analysis, this would really reinforce the strength and validity of those reports if they end up relating to the President and his immediate family and (more of his) associates. That is, if SCO isn’t going to indict the President, and it’s not going to submit a report to Congress (per Justice rules and statute, as some have interpreted), they are on much better political footing labelling him as un-indicted co-conspirator in a conspiracy to defraud the United States than they are with merely obstruction, and to let Congress sort it out from there. (Not suggesting that SCO is out to get the President – just that if they find or have found evidence of crimes committed by the President and associates, they are probably making decisions today that reflect the possibility of needing to take some sort of action against the President and to deter pardons by the President).

      And it’s a small point, but I do think that the articulation of “conspiracy to defraud the United States” would just be so much stronger politically and in the court of public opinion (which will be tightly connected if it ever comes down to this) rather than “obstruction” on its own. Fighting obstruction charges yourself or pardoning someone for obstruction would seem to be a lot easier than pardoning someone for conspiracy to defraud the United States. Particularly when the counterargument would likely be, “sure – we did it, but we saved you from Hillary so the ends justified the means.” The GOP media apparatus is incredibly strong, so who knows if all this would work.


    • SpaceLifeForm says:

      I think it is important to see the forest (conspiracy) instead of only seeing the trees (obstruction).

  3. Avattoir says:

    Between these 2 cases, which one would you rather prosecute?

    A. A case that includes a melange evidence, of:
    1. actual crimes that have been prosecuted as such,
    2. codified illegal conduct that has never been prosecuted before,
    3. overt acts which a significant % of American voters either wouldn’t see as crimes or else think that they ought not be treated as crimes,
    4. overt acts which are clearly legal BUT FOR the head charge being conspiracy and those clearly legal acts being alleged by the prosecutor as lawful acts aimed at furthering the overall unlawfulr purpose,
    5. that you’ll probably be forced to argue before appellate judges that acts which U.S. law ALLOWS Americans to do, are magically transformed into crimes where those Americans doing or agreeing to do those legal things, know or ought to know that they’re doing them to further the interests of a foreign entity.


    B. A case involving a charge of a criminal conspiracy towards achieving some really big deal illegal aim, object or purpose, where every time your opposing attorney, say Dershowitz, or election law prof Hasen, jumps up and starts ranking about That’s Not A Crime!, you get to say, Frankly, Al / Rick the law does’t give a fuck for your objection, whether you’re right or wrong, so long as twere done or twere agreed to be done to further the unarguable crime of impermissible interference in a U.S. election?

    A. __
    B. __

    • emptywheel says:

      There will be both. But as I noted, the advantage of charging the conspiracy is it will quickly get to people who did stuff knowing others were breaking the law.

      • Avattoir says:

        And that’s one of the ‘magic’ features that charging a criminal conspiracy brings to forefront.

        It’s not necessary for conviction that a co-conspirator be in on agreement right from its formation.

        It’s no answer to a charge of criminal conspiracy for a ‘founder’ to leave, abandon, or even denounce the conspiracy: that person’s initial commitment to the umbrella agreement to pursue  whatever is the ultimate illegal aim, goal or purpose, suffices to make out the case.

        Co-conspirators don’t actually need to meet, or know, or even know ABOUT all their fellow co-conspirators; it’s enough to attract a proper finding of guilty by a jury that a given participant was even just generally aware that the illegal aim, goal or purpose was being pursued, & that he, she or they were consciously acting to contribute to achieving that illegal end.

        Co-conspirators can be unwitting, or actually ‘innocent’, or even government and private actors just doing their jobs without knowing how that might contribute to the end of the illegal agreement. The unwitting, ‘innocent agents’, and such government and private actors just doing their jobs oblivious to how their work has been corrupted or suborned, obviously should not be convicted, or even charged (tho sometimes they are: I’ve seen it happen), yet NONETHELESS they’ve made their contribution to the agreement to pursue the ultimately illegal goal.

        A criminal conspiracy can be found in an agreement to achieve an illegal aim, goal or purpose even by entirely legal means –  and can also be found in an agreement to obtain an LEGAL outcome by ILLEGAL means.

        One of my particular favorites among the features of prosecuting or defending against a charge of criminal conspiracy is that the prosecution gets to relate the whole story. That’s because trial court judges are directed, by the law as interpreted by appellate courts, to grant a sort of conditional admissibility of all the various elements & features of the case, i.e. to suspend questions of relevance until the whole story’s been put before the jury.

        At that point, it’s not that the government just gets to say to the jury, Look at all this dirt we’ve piled up here, now go back to your room and find these people guilty of whatever dirt you think stuck and whatever criminal agreement you choose to make of that – even tho this type of charge can be, and has been, abused in the past.

        Rather, at the point the trial judge should turn to the government and say, Okay, now you need to articulate to the court the nature of the conspiracy, in particular on where the illegality lies; and you need to identify each participant’s role in it, and point out to the court the admissible evidence that shows not just that things were done that furthered the ultimate goal but that they were done with the necessary intent to further that goal.

        And the defending attorney(s) then (should) have the opportunity to argue how the government hasn’t met the burden of proof, hasn’t shown an ultimately illegal purpose, has failed to show that this or that overt act might have contributed to achieving that.

        • bmaz says:

          Say, I  dunno, how about a meeting of the very top campaign officials with Russian agents for the purpose of acquiring dirt on Clinton in a proposed quid pro quo if Trump gets elected, all supported by email chains? Think that might fit?

        • earlofhuntingdon says:

          It is elegant how conspiracy can be found by acts in furtherance of it, work done toward a common purpose, even in the absence of an overt meeting or spoken or written agreement.  Concurrent action can be sufficient, with adequate supporting facts.

          But if you have a meeting in the favorite wired conference room of the principal’s trademark building, involving his son and closest advisers, where the cover story doesn’t hold as much water as a Dixie cup, the odds of proving conspiracy improve.

          Once upon a time this sort of thing was used in antitrust actions against airlines.  Their CEOs never met, but their ticket prices for comparable flights put them within pennies of each other.  Now, such things are written off as the magic of the market.

        • Palli Davis Holubar says:

          “Co-conspirators can be unwitting, or actually ‘innocent’, or even government and private actors just doing their jobs without knowing how that might contribute to the end of the illegal agreement.”

          How long will GOP personalities weigh strategies: wait it out hoping for unnamed co-conspirator status; recognize an impetus to retire to a non-extradition vacation spot; preemptive call for presidential impeachment; stand and fight? Any other strategy?

          • Dev Null says:

            @Palli Davis Hlubar: Thinking the 2nd para should not be quoted.

            (Yes, I’m stating the obvious. Took me a couple of minutes of searching to be sure. Thinking I might save someone else those two minutes.)

            • Palli says:

              Sorry! Did not notice the quotation command continued. Or now how to edit it correctly into 2 voices (EW who knows what she is talking about & me-the other-who can only grasp small parts of the whole at a time.

  4. pdaly says:

    Thanks for the analysis. It is like having the synopsis before the play begins. Curtains up!

    Possible word correction.
    ‘defraud’ instead of defend ?: “once that Marine running SCO gets all his leverage points into place they might all have that conspiracy to defend”

    • earlofhuntingdon says:

      Mueller and his team will be in the appellate courts for a host of reasons, principally the desire of those prosecuted to avoid the natural and logical consequences of their conduct.  The novelty of their legal arguments will not be high among them.

      • bmaz says:

        See, that is the thing though….federal conspiracy application is not particularly novel in the least. Done every day and the appellate courts have taken VERY broad application of it forever.

          • earlofhuntingdon says:

            The establishment abandoned Nixon – he would say they were never with him.  The CIA, in effect, obstructed justice by stonewalling Walsh’s investigation in Iran-Contra.  Ollie North’s convictions were overturned on appeal.  Bush the Elder pardoned six of the other highest-ranking people allegedly involved in it, scotching further investigation.

            I imagine that most top federal prosecutors learn such things by heart, and that Mueller has people on his team working hard to avoid the same end to their work.

  5. earlofhuntingdon says:

    Downing doesn’t dispute the letter of the law. He instead credibly disputes that Manafort could be expected to believe the law means what it says because it has never been enforced.

    A reporter or her sources would be ill-advised to rely on that logic to avoid, say, an Espionage Act prosecution.

      • earlofhuntingdon says:

        No.  My choice of a feminine pronoun was to avoid the prior uniform use of the male, as I might in saying that God should strike down her enemies.  The reference to a reporter was tied to my example, not to our host.

        I disagree with Downing’s argument against the use of the FARA and impliedly used Obama’s use of the Espionage Act to refute it.  Because a statute is “old” or hasn’t been used, or used in a while, or used for the purpose a prosecutor now seeks to use it, does not mean that it can’t be employed effectively today.  The Obama administration was deft at resurrecting old laws and finding new uses for them.  Its use of the Espionage Act against reporters and their sources is one example.

  6. earlofhuntingdon says:

    Hiding the influence of Russian money and persuasion also attacks the idea that “volunteering” to do something is really acting without interest or compensation.  It might also be a workaround to the logic that the S.Ct. has used to  wall off charges such as bribery from being used against any but the most stupid of politicians.

  7. Trip says:

    “Moscow is laughing their asses off”.
    Perfectly appropriate response for a public servant with loyalty to the US, and not the Kremlin.

    Jokes on the US, right Donald?

  8. Charles says:

    Marcy says,

    “Bauer argues, breathtakingly, that instead of using America’s defunct campaign finance and transparency law, Mueller can use America’s insanely overbroad conspiracy law.”

    That’s actually the usual pattern. Don’t arrest them for murder; arrest them for the gram of coke in their pants pockets and threaten them with 10 years to life for distribution of a controlled substance. They might cop to the murder as part of a plea.

    The real danger in this approach is that Americans need to understand what seems to have happened: A corrupt political figure acted as a Trojan horse to let a dangerous rival nation take power over this country. He was able to do so because of weak campaign finance laws, weak anti-corruption laws, concentration of wealth, and a decayed Fourth Estate.

    That’s the lesson America needs to take from this. Just as in Watergate, a lot of people didn’t learn what they needed to because Nixon was never charged with crimes like ordering arson and murder, we are in danger of having Trump thrown out of office without exposing the complicity of our own oligarchy and how they have corrupted politics and the media.

    • earlofhuntingdon says:

      Another lesson we need to relearn is that Nixon was never charged with crimes because Gerald Ford, his Republican vice president and successor, gave him a pardon.

      The argument then, as it will be again, is that he did so to unify the country and to heal its wounds.  Nice headline.  A lot of people were outraged, because it meant that many of Nixon’s crimes remained buried. What he did, how he did it and how he kept it secret remained buried, too. He would not be punished for them, which would encourage others eventually to follow suit.

      Mueller knows the history.  I hope he’s doing his best to avoid repeating it.  We need to do the same.

  9. Charles says:

    While I am late to this conversation, I am skeptical that these indictments are a good signal. I called Rosenstein’s presentation of them The Tale of the Immaculate Deception. As he presented it, the Russians were the only bad guys; Americans were at worst dupes.

    Spinning this narrative was possible only because Ricky Pinedo’s case was severed from Rosenstein’s presentation. Despite Pinedo’s protestations, it’s hard to believe he didn’t know who was paying him.  Once one American is a witting accomplice, the narrative dissolves.

    Pinedo had to be a much more central figure than is being acknowledged because Mueller’s office chose not to refer his case–which, at bottom–is just penny-ante financial fraud (apparently) without a sympathetic victim– to a federal prosecutor down the chain.  They apparently want to keep a leash on him.

    The fact that the backbone is fraud against the US is disappointing to me. It may be a great legal strategy, but the public needs to know that this was the supreme crime against their liberty.  If the will of the People can no longer be effectively exercised through elections, then they have no choice but to take it to the streets. On Lawfare, there is already talk that we will never see the full range of what the special counsel has discovered. But unless the whole nation sees the full range, understands the gravity of the crimes, and observes heavy punishment of the malefactors, we will not escape a full breakdown of our constitutional system. There have been too many outrages already. The system needs radical reform to protect it from corruption, from our own oligarchy and extremists, as well as from our international rivals.

      • Charles says:

        I know more is to come. But, as you pointed out in your post above on Nixon, the failure to punish specific crimes meant that others would think he got away with it.

        Which was  true. And which led people like Reagan to think he could get away with selling arms to the Ayatollah and mine Corinto harbor.

        People see these prosecutions in various ways. One is that they might help to stop Russian attacks. That’s valid (and the indictment probably gives the Russians some pause. i wouldn’t be surprised if they’re engaged in a mole hunt to figure out how Mueller got the details of who ran their effort).

        A second might be to force Trump out of office and stop his depredations. While that would probably be a good thing, it would  people in power (starting with Mike Pence) who may be more predictable, but are just as awful.

        But the highest value of prosecutions is to produce systemic change. So unless the character of the indictments starts to include things like bribery, self-enrichment, aiding espionage, and other crimes that Americans can see as crimes per se…and unless the indictments start to include–even as unindicted co-conspirators– people like Devin Nunes and Dana Rohrabacher who see themselves as above the law, this systemic change is unlikely to occur.

        • Rayne says:

          I’ll point to the prosecution of Al Capone as an example of prosecuting one crime rather than another to successfully remove a criminal from the public sphere and punish them; the evidence was solid compared to that for any other crime Capone committed. We might want to see every possible criminal charge but Team Mueller will go with those which stand the best chance of a conviction and the least chance of being overturned on appeal.

          Assuming the GOP snaps out of its complicit and moribund state to look at impeachment, some of the crimes which Team Mueller might not prosecute could still appear in the articles of impeachment. Assuming Democrats take back Congress, the public should ask for an investigation’s summary to include all crimes charged and uncharged to appear in the congressional record so that we have a benchmark to work from for corrective legislation.

          But you know what they say about assumptions…

          • bmaz says:

            At this point, I’d say that the mueller team is very selectively charging what they want and need to only to protect the core of their investigation. it is crystal clear there is so much more that could be charged. The contents of the affidavits and plea proffers is but a tiny fraction.

            • Rayne says:

              Agreed, they are protecting the investigation in process, leaving the team with maximum leverage for flipping. But…

              What we see now is the development of a narrative with deliberate partitions, like chapters in a book. The next chapter will build on this one and take the public along with it. If they dumped too much at once, not only might they damage their efforts, they might lose public support.

              IIRC that was a factor in the Capone case as well since he had curried a lot of favor with the impoverished public after the Crash. They nailed him not only on that which had rock solid evidence but the public saw as unfair — the equivalent of a billion or more in income without paying taxes? Hard limit.

          • earlofhuntingdon says:

            This GOP would pass lobbying reforms and ban handguns except before voting to impeach Donald Trump.  If they won’t pass DACA legislation or ban assault rifles with a veto-proof majority after Florida, they won’t impeach the Don.

            • Rayne says:

              Depends. If they’ve been promised the mid-term elections are in the bag — manipulated — they won’t bother to lift a finger. But if there is no such promise, I am willing to bet Parkland is the turning point; it’s the death knell of the GOP as it exists today.

              When children are more rational and articulate than senators, representatives, and a president, when their parents and teachers are willing to back them up, tectonics have changed. There are roughly 53 million kids in K-12, along with roughly 8 million teachers. The kids have sympathetic older siblings in college. The size of walkouts and marches to come may dwarf the Women’s Marches, and the first one had approximately 6 million participants.

              If you haven’t been watching Parkland students on Twitter and cable news, you are missing the first flames of the fire to come.

    • SpaceLifeForm says:

      The russian meddling was not a ‘supreme crime’, nor an attack against anyones liberty.

      The people that were not really paying attention have now had their wakeup call.

      They will vote after contemplating whether or not they were manipulated last election via fakenews and troll bots.

      The people still have their liberty to use their brains.

      The meddling is just a very small part of the big picture, and the full picture will likey take another decade or so to come out.

      Radical reform is not going to happen.

      • Wm. Boyce says:

        We live in a nation of idiots, who increasingly don’t read or understand much. This blog is a refreshing antidote for those of us who are still interested in thinking and being aware. Ms. Wheeler and colleagues are to be complimented and I certainly look forward to the next act of “Constitutional Crisis II”.

  10. RS says:

    This conspiracy framework might also be used to overcome legislative immunity for acts that people like Nunes, Gaetz and DeSantis (and their staff) may have perpetrated.

      • Charles says:

        You’re the lawyer, bmaz, but does Speech and Debate cover staff? The only precedent listed in Wikipedia is in the Mike Gravel (Pentagon Papers) case, where the lower courts allowed some questioning of Rodberg, and the Supreme Court was closely divided. Of course , now there are five firm votes of protecting any Republican.

        There’s also a question in my mind as to how far “legislative acts” stretches. The behavior of Nunes, especially, but also of other Republicans is so bizarre that it suggests motives outside of political ones. They act as if they are either bribed, blackmailed, or otherwise controlled by a foreign power. Granted, the Republican Party increasingly resembles an alien invasion, but could acts conducted in the furtherance of a bribe or knuckling under to blackmail be considered “legislative”?

        • bmaz says:

          Yes. General rule is that if the protection would inure to the congress member, it will to his staff as well. As ridiculous as Nunes has been, I cannot see how he is not so protected.

        • SpaceLifeForm says:

          “They act as if they are either bribed, blackmailed, or otherwise controlled by a foreign power.”

          Remove the word ‘foreign’ and ask yourself if your statement could still remain valid.

        • emptywheel says:

          Yes. The FBI’s top suspect in the Merlin leak was not actually Jeffrey Sterling, it was SSCI’s top staffer. SSCI refused to cooperate and that guy is still working in the Senate (albeit on a different committee).

  11. RS says:

    Sorry, I can’t seem to be able to post this under the last bmaz post.
    There is a criminal conduct exemption under Speech and Debate supported by case law. Bribery, to affect a vote, can be charged against a legislator even with S & D protection. If this is true, a crime to “defraud the United States” must surely be able to pierce the S & D protections. Defrauding the US should not be considered a legitimate use of legislative powers and thus not protected.

  12. Willis Warren says:

    Wouldn’t tRUmp be subject to FARA charges as well? if they can convincingly show he was a co conspirator in this, wouldn’t he also be an agent of a foreign gov’t?

  13. orionATL says:

    the overarching – political – importance of this move by the the office of special counsel cannot be overestimated. now the part of the nation that cares can read about methodical concrete actions taken by named russian individuals with the deliberate intent of affecting the outcome of the 2016 presidential election. the orangutang in the white house who has been screeching “fake news” will no longer have his cries met with silence.

    further, the ofc has protected itself by moving from partisan matters directly involving trump’s illegitimacy, which have threatened republican hegemony, to merely implicitly partisan matters. attention is now being placed on matters directly involving the russian government’s intervention in a central, critical governing process (presidential election) from which that foreign and hostile government stood to benefit.

    one would hope this would arouse wider and more passionate public support for the work of the special counsel and as well as arousing further skepticism from the public about the organgutang’s screeches.

  14. Charles says:

    OrionATL says,

    there was a “facebook” department where a very high degree of english competence was required.

    Weren’t they afraid that would out them as not being Republicans?

  15. earlofhuntingdon says:

    Re the Gates’s plea deal story in the WaPo, who is the leak, if not Green or Mueller’s team? Why leak other than to give a heads up to Trump?

    What does it suggest that Mueller has enough power not to put in writing how much of a sentence reduction Gates would get for full cooperation, presumably including giving court testimony? Is Mueller signaling to Manafort and others that the price for a lenient sentence is going up? Is he concerned about how much Gates would admit to or that he might waiver as the need for his testimony approaches? Or does he just have Gates over a barrel?

    Gates may not have information directly harming the president, but he has been a Manafort aid for some time and he was on the campaign months longer than was Manafort. If there’s a deal, he has enough to harm someone higher up rather badly. Manafort may be a bigger witness, he’s likely to know more, but he’s also likely to be more vulnerable to sanctions from those (non-Americans) whose secrets he might spill, which would make him reluctant to flip.

      • Rayne says:

        Pretty funny way to say, “Fuck you, partner, you’re going down and maybe you should have cut me in on a bigger piece of the action.” LOL

        I need to read the LAT’s report version filed this morning: Former Trump aide Rick Gates to plead guilty; agrees to testify against Manafort, sources say

        Wonder if there were any enhancements on that Fuck-You-Manafort from Gates.

        EDIT — 6:45 pm EST — Too funny, this bit from LAT is like the old gag in which someone’s handwriting is detected by the urine in the snow:

        “Rick Gates is going to change his plea to guilty,” said a person with direct knowledge of the new developments, adding that the revised plea will be presented in federal court in Washington “within the next few days.”

    • Trip says:

      “As investigators examine Mr. Manafort’s financial and political dealings at home and abroad, they are likely to run into Mr. Gates wherever they look. During the pair’s heady days in Ukraine, it was Mr. Gates who flew to Moscow for meetings with associates of Oleg Deripaska, a Russian oligarch. His name appears on documents linked to shell companies that Mr. Manafort’s firm set up in Cyprus to receive payments from politicians and business people in Eastern Europe, records reviewed by The New York Times show…In a campaign known for its factionalism, Mr. Gates won over colleagues by managing the mundane but essential work of daily operations. He traveled often with Mr. Trump and forged relationships with Reince Priebus, the future chief of staff, and Brad Parscale, the campaign’s digital director…Mr. Gates hit it off with Thomas J. Barrack Jr., the wealthy Los Angeles investor, who hired Mr. Gates to help run Mr. Trump’s inaugural.

      Some clues above. He can’t be dismissed as a coffee boy, or someone who only spent a short time on the campaign. He’s wired into the chief of staff, the IT guy, the inaugural (and payments thereof).
      He frequently traveled with Trump. He has had a lot more exposure up close and personal, rather than only being a guy like Manafort, categorized as operating on self-interest at somewhat of a distance and let go by the administration. He might pull Cohen in with the Ukraine deal.

      • earlofhuntingdon says:

        The story of the inaugural alone could be long.  Lot of money – multiple tens of millions for a party (fundraiser, celebration of his Majesty) – from a lot of shady characters spent on that, nyet? It was also recycled in curious ways.  Melania, any questions?

  16. winston says:

    hi first time poster here.

    wondering if someone can explain why the need to rely on the conspiracy charge for the hypothesized “net” it creates to sweep in downstream defenders not immediately associated with the substantive offense.

    why would prosecutors not be able to charge direct offenders with the substantive violation and then downstream actors with aiding and abetting or some kind of accessory before/after the fact crime?

    disclaimer:  understand there is a lot of complexity here, and that i can do a bunch of investigation to get closer to an answer, but am curious if someone can readily give a concise/insightful response.

    • avattoir says:

      Lots of reasons.

      Here’s one: a, as you put it, ‘downstream’ co-conspiratorial actor may do something that’s not actually illegal for him or her to do in this country, while INTENDING for that thing to contribute to the illegal purpose of the conspiracy as a whole.



      Elsewhere, one of the ‘news’ sites that serves the news illiterati, Mediaite, noted that election law prof Rick Hasen has pointed to acts relied on in this indictment as being ‘not illegal’ for, e.g. acts / words actually or arguably protected by the First Amendment. Okay, assuming that’s so, such would or could provide a complete answer to a substantive charge relying on that act / those words. But it would NOT answer an allegation that the person who did that thing / said those words, was doing so with the conscious intention of furthering the ultimately illegal goal.


      This isn’t the first time this has come up in this threat. That makes me think, either you didn’t read it, or else you did but didn’t want to deal with it.

      • earlofhuntingdon says:

        As you say, if you can establish conscience intent to promote the illegal aims of the conspiracy, then a host of otherwise legal acts become tainted with the illegality of the conspiracy.  Wiring money, paying hotel and restaurant or electric bills – normally legal acts – when done for co-conspirators acting to further the conspiracy makes one a co-conspirator.

  17. Nick says:

    Earlofhuntingdon writes: “Hiding the influence of Russian money and persuasion also attacks the idea that “volunteering” to do something is really acting without interest or compensation.”
    Remove the word “Russian” from this sentence, and apply it to other “volunteers” who are close to POTUS: e.g., Jared Kushner and his wife.
    The decision to begin with this portion of the conspiracy backbone is brilliant, IMO. It starts with the Russians-the obvious “bad guys “- but depoliticizes the interference because the existence of the conspiracy doesn’t depend upon a showing that the interference was material to the outcome of the election.
    If POTUS is protecting himself (prior bad acts) and or family members through the misuse of his office, aren’t these acts just variants of the definition of “defraud” articulated by Taft, C.J, in Hammerschmidt? To flesh out the conspiracy/ies in these patterns, one needs to “follow the money”, and I assume the OSC has been doing just that. Bigger fish already are in the net.

  18. earlofhuntingdon says:

    The MSM’s coverage of the Mueller probe seems to be withdrawing prematurely: nothing for Mueller to find here, wet squib, move on.  Cohen’s statement that he “facilitated” a payment to one of Trump’s adulterous liaisons, for example, the MSM morphs into Cohen using his own money as a gift to his great friend and client.

    Perhaps the MSM is performing a preemptive attack on “too much democracy”.  That was the elite’s post-Watergate lament that public involvement in politics and too many congressional investigations were themselves threats to stability and, hence, their hold on power.  For public consumption, they repackaged that as a threat to “democracy”.

    As is obvious, public and congressional oversight is a necessary expression of democracy and a tool to keep the constant threat of authoritarianism at bay.  It is not even an enduring threat to elite rule, as long as they don’t demand the whole pie.  These days, however, they demand the pie, the tin, and the delivery van.  I bet a Chomsky and Herman against four Tom Friedmans and a Maggie Haberman that the NYT will continue to manufacture consent.  To serve and protect the Republic on which they stand.

    • emptywheel says:

      I’m not sure that’s it. I think the Blake Hounshell thing is indicative of people refusing to believe that this could be as bad as it is. Particularly for people who are deeply invested in a belief our politics aren’t more fucked up than they are, they’re going to have to work through a good deal of cognitive dissonance before they grasp this, I think.

      • bmaz says:

        Yeah, I agree. The Hounshell thing was couched in all kinds of namby pamby “I see both sides of this mess” baloney but, at it’s heart, was absolutely simpering bullshit that was stunningly ignorant of actual legal thoughts and knowledge. And, at some point, even if not a lawyer, if you are going to be editor in chief of a major publication like Politico, you need to be FAR better informed before you write dreck like that. I know there are people at Politico that could have easily disabused him of some of that ignorance if Hounshell had bothered to ask them.

      • SpaceLifeForm says:

        people who are deeply invested in a belief

        Translate: their love of money and their addiction to said money requires that they must sustain status quo. They do not want their ship to be rocked.

      • earlofhuntingdon says:

        I’m not much of a David Frum fan.  But even he sees a moribund GOP enabling its president to break whatever norms he needs to for them all to stay in office and to avoid consequences such as having Adam Schiff take over from Devin Nunes as committee chair.

        Frum’s analogy is the Civil War and the things southern Democrats were willing to do in order to preserve their veto power over congressional action and to preserve their economic and social control over slaves.  That included secession and a war that cost half a million lives or more.

        In Trump’s case, it is the fear that the GOP – and Trump – would let a foreign adversary influence the White House and our system of elections – already at risk owing to the Republicans’ own assaults on that same system.  From the GOP standpoint, what’s one more oar in the water?

      • earlofhuntingdon says:

        Pulling back from an “excess of democracy” normalizes the current status quo.  In the case of Nixon, the meme was that the system worked, Nixon was removed, all’s right with the world.  We don’t need to inquire further into what he did, much less indict and prosecute him for some of those undisclosed crimes.  We need to heal and a blanket pardon for undisclosed crimes is the way to do that.  Doing otherwise would not just challenge Nixon, it would challenge the status quo.  MSM  reporters, editors and publishers do not normally do that, then or now.

        Contending that circumstances are not as bad as they seem, or persuading readers that that’s true, manufactures passivity and acceptance.  That allows Trump and his GOP to continue on their present course.  That’s a judgment call.  Presumably, it’s based on the assumption that what those actors are doing is just politics at usual when every indication is that they are not.

        It buys into the self-immunizing George H.W. Bush argument that to do otherwise would be “to criminalize policy differences”.  That is, it would criminalize the “normal” running of government.  In fact, the government is not now and was not then running normally.  Peterr’s comment about Tillerson’s solo meeting with Turkey’s Erdogan, Trump’s solo meeting with the Russian Ambassador in May, Trump’s angst to please Russia and his refusal to implement sanctions against Russia are all evidence of that.

    • Dev Null says:

      @earl: as said in a comment at a previous thread, every WaPoop columnist I read today is frothing at the mouth, even Ruth Marcus. And The Mustache of Wisdom penned a surprisingly coherent op-ed at the paper of record.

      Admittedly, they were all provoked to abandon civility by Trump’s demented tweets this past weekend, but still … “act of war”, “CiC MIA” … dem be fightin’ words.

  19. Trip says:

    I can’t confirm the veracity of everything in this thread, but the trademark info looks legit. Trump said that he didn’t know he was running in 2014 (in response to the Troll Farm being set up).  But this seems to show he was actively gearing up for running back as far as 2012 (after that election had concluded and Obama beat Romney), why else would he ® the MAGA? This twitter account alleges that some of the followers on Trump’s account, pushing him to run, were actually fake/Russian entities. (Disclaimer: I do not know how they would/could affirm that). In the midst of all of this, Trump is looking to build in Moscow, has his beauty contest in Russia, and gushes about Putin in an interview.
    SCROTUS‏ @_NotFakeNews_
    Timeline of Trumps MAGA TM, plus tweets, beginning 2012: Nov. 19, 2012, Notice of Allowance Date: Dec. 24, 2013
    Trademark for MAGA:

    (Intentionally broken link, cut and paste):

    He has really eaten our president’s lunch


    Michael Cohen in meeting with Russian oligarch Aras Agalarov, his son Emin  and Donald Trump*wKeDSGWRjAQ23ERQteJvsQ.jpeg

    And then, of course there is this:
    Trump ‘seriously considering’ 2016 bid
    Updated 9:57 AM ET, Tue December 16, 2014

    This isn’t proof of anything, but it is surprising that his informal campaign went back so far in time. If this has already been covered here, I apologize. I’m relatively new.

    • SpaceLifeForm says:

      Wow. Just wow.

      [Not even looking at the jonesday angle nor that this started late 2012]

      Governmental discretion is exactly what U.S. ethics lawyers fear could turn a trademark into an opportunity to exercise leverage over the U.S. president.

      ‘Every American should be profoundly concerned by this enormous expansion of President Trump’s entanglements with China,” said Norman Eisen, who served as chief White House ethics lawyer for President Barack Obama. “If the president is receiving these flows of benefits from China, how can he be trusted to staunch the flow of jobs from the United States to that country?”

      Richard Painter, who served as chief ethics lawyer for President George W. Bush, said the volume of new approvals raised red flags.

      “A routine trademark, patent or copyright from a foreign government is likely not an unconstitutional emolument, but with so many trademarks being granted over such a short time period, the question arises as to whether there is an accommodation in at least some of them,” he said.

      Eisen and Painter are involved in a lawsuit alleging that Trump’s foreign business ties violate the U.S. Constitution. Trump has dismissed the lawsuit as “totally without merit.”

      Trump has said he assigned all his business interests to a trust overseen by one of his sons, Donald Trump Jr., and a longtime Trump Organization executive, Allen Weisselberg. However, Trump retains the ability to revoke the trust at any time and as the sole beneficiary stands to benefit financially from it. As of May 2016, Donald Trump owned 100 percent of DTTM Operations LLC, according to his Federal Election Commission disclosure. Its current ownership structure is unclear. Delaware public records do not disclose the management of DTTM Operations LLC, though they do show that Trump’s sons and Weisselberg served as directors of a related company.

      [Except the records at USPTO reveal machinations]

      • SpaceLifeform says:

        China connection.

        Representatives for Kushner and Anbang declined to comment. Al Thani could not be reached for comment. A spokesman for the special counsel declined to comment.
        Also during the transition, Kushner met with Sergey Gorkov, chairman of Russian state-run Vnesheconombank. Kushner testified on Capitol Hill that the meeting was for official US government purposes. But the Russian bank maintains that the sit-down in New York was part of their “roadshow of business meetings” and that Gorkov met Kushner because he ran Kushner Companies. The Washington Post reported that Mueller’s investigators are scrutinizing this meeting.

        [Yet another NY meeting]

  20. earlofhuntingdon says:

    China does not readily hand out trademarks to foreigners.  They needn’t have read No Logo or other works by Naomi Klein to know about the power that intellectual property confers on a business.  They’ve studied US practices and the Japanese development model for decades. China, in fact, has a history of abusing foreign copyright and trademarks. Doing so makes the Chinese military (that means the top hierarchy generally), which has a hand in much of the economy, a bundle.  So if Trump family actors are obtaining dozens of Chinese trademarks, it is not business as usual.

  21. Trip says:

    Mueller Charges Lawyer With Lying in Russia Probe
    An attorney who worked for a prominent law firm was charged with making false statements to federal authorities as part of Special Counsel Robert Mueller’s probe of Russian collusion in the 2016 presidential election. Alex Van Der Zwaan was charged Feb. 16 in federal court in Washington with lying to investigators about conversations related to a report he helped prepare on the trial of a Ukrainian politician, Yulia Tymoshenko. Van Der Zwaan was charged with a criminal information, which typically precedes a guilty plea.
    The lawyer also allegedly lied about his talks with someone else, referred to by the government as “Person A.”Paul Manafort was involved in recruiting Skadden to prepare the report on behalf of Ukraine, according to documents reviewed by Bloomberg News.
    Manafort Charges Renew Questions About Skadden’s Work in Ukraine

  22. tinao says:

    Hey there Marcie, I caught you on Democracy Now and have to say how heartening it is to see my 2 favorite women in media speaking without skirting truths, but putting them in contexts to the facts. Congrats well done!

  23. earlofhuntingdon says:

    To repeat my comment from another thread, nice job in the interview with Amy Goodman and Juan Gonzalez.  Well-spoken, poised, confident, informed, energetic, effective.  Anyone not looking to the RNC for a handout would be impressed.

    • tinao says:

      EOH, I didn’t mean to leave Juan out, but alas he is not a women. He is great as well! They all do the kind of reporting this country sorely needs.

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