Further Thoughts on the Shutdown

A few points here.

Trump's wall is simply not important.  It is a policy symbol, not a matter of substance.

His proposal to make it out of steel slats instead of concrete is also meaningless.  No one cares except for Trump himself.  Besides, he has been saying for a long time that he wants a wall we can see through, or drug smugglers on the other side will drop 60 pound bails of drugs on citizens' heads.  (Seriously!)

I have no objection to trading the wall for DACA and therefore think it was a mistake for Nancy Pelosi to say that she would not agree to the wall even after the government reopens.  Taking what the other side wants most absolutely off the table removes all incentive for them to negotiate.  In the last showdown over the wall, pro-immigration Democrats vowed that they would personally break ground on the wall if only they could have protection for the Dreamers.  But then Trump torpedoed the deal by insisting on major cuts to legal immigration be part of any agreement.

Trump's first proposed "compromise" of wall for DACA and reopening of government sounded at least possibly reasonable and possibly something to at least think of voting for.  Once it turned out that Trump wanted major restrictions to asylum seeking, Democrats quite properly considered it totally out of the question.  Any changes of that sort must be decided by normal procedures, not forced under the gun.

And now Trump has agreed to open the government for three weeks in exchange for some sort of bipartisan negotiations for a compromise on immigration.  Well, long story short, it won't happen.  Democrats have taken a wall off the table as an unacceptable symbol of exclusion.  Given that the wall is substantively meaningless, I think this is a big mistake.  And Trump rejects any passage of DACA without major immigration restrictions, which is a strict non-starter for Democrats.

Look, comprehensive immigration reform is hard.  It proved impossible when Republicans controlled both houses of Congress.  Under the Hastert Rule, the Speaker would not introduce any measure unless it had the "majority of the majority," i.e., the majority of the Republican majority.  A majority of Republicans opposed any bill that could be taken as granting "amnesty" to people who arrived illegally, even as children, so no bill including amnesty could ever pass the House.  In the Senate, the filibuster forbade any measure that could not garner 60 votes, so the Democratic majority was able to block any measure that did not include an amnesty.  In effect, both house had house rules preventing passage by simple majority.

Even if we removed those restrictions, comprehensive immigration reform would require long, painstaking tradeoffs hated by the more hardcore members of both parties including (at present) our President.  Even if Trump were somehow convinced that the pageantry and glory of signing comprehensive immigration reform, and the bragging rights of boasting that he succeeded where Obama failed, is more important that what is actually in the bill, negotiations are going to be a long, painful haul. 

A rough, DACA-for-wall trade with further changes to be deferred would strike me personally as both doable in the next three weeks and a good idea.  What a shame Trump as ruled out DACA without major restrictions and Democrats have ruled out the wall altogether.  And anything further has proven impossible as a matter of bipartisan compromise and will have to be passed when one party has not only the Presidency and a majority of both houses, but a 60-vote majority in the Senate -- or the filibuster will have to be abolished.*

But even then comprehensive immigration reform is going to be the result of long, hard work.  It absolutely should not be the result of any actor deciding to shut down the government until his/her/ its preferred plan is passed.

And just for the record, this does not mean just Donald Trump announcing that he will shut down the government unless the budget contains not only funding for his wall, but major restrictions on immigration, as his proposed "compromise" did.  It would also be improper for Nancy Pelosi and House Democrats to pass their dream plan for immigration and then shut down the government unless Republicans pass it in the Senate and President Trump signs it. I do not expect such a thing to happen, but it would be a clear abuse of power if it did happen, and I would expect both the Democrats to lose and public opinion to be against them.**  And rightly so.

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*I think that is probably a good idea in the long run, but too alarming in the short run.
**And to be clear, this is what the Republican House under John Boehner attempted to do in the second Obama term.  They proposed either a ransom note requiring passage of the entire Republican platform as a condition for raising the debt ceiling (admittedly only as the opening ploy in a bargaining gambit, with the expectation of ending up with less), or a menu of options with a longer extension the more of the Republican platform Obama agreed to.  The attempt failed because the Freedom Caucus refused to sign off on any extension of the debt ceiling no matter what the ransom, so Boehner was forced to pass it with Democratic votes only.

Trump Imitates Russia in a Way No One Foresaw

Look, I know analogies of this kind should not be made lightly.  But when I hear of more and more federal employees being forced to work without pay, I think of a historical stretch in a certain country -- Russia.

In Russia in the 1990's, the IMF required as a price for lending Russia money that it make deep cuts in expenditures, including pay for coal miners.  Fearing the consequences to the economy if coal production fell, the Russian government resorted to the truly desperate measure of running the mines but not paying the miners.  It went on for years, and spread throughout the economy, until the ruble collapsed altogether and the country resorted to barter.

So clearly, analogies of this kind should not be made lightly.  The economy remains strong, although the shutdown is causing problems.  Certainly I am not in the least bit worried that we will face anything like the economic crisis that Russia faced.

It nonetheless remains true that the comparison keeps popping up in the back of my mind.

The Ghost of Shutdowns Past

Fans of American exceptionalism can point to one way we are exceptional among advanced democracies.  We are the only one to have government shutdowns.  Parliamentary democracies often have deadlocks in which they are unable to form a government, but the state bureaucracy marches on, carrying out its every day tasks, but without direction from the top.  This can continue for a long time without serious inconvenience, although ultimately it can cause trouble direction is needed.  But shutting down the bureaucracy of the state is a uniquely American pathology.

The United States has had short lapses in funding before, for a few days, but only two shutdowns that were serious crises. 

The first was under Bill Clinton in 1996 and lasted for 21 days.*  The shutdown was the result of a budget standoff.  I constantly hear that Republicans assumed that Clinton would be blamed and found they had miscalculated, but I think that is incorrect.  Economic royalists are opposed to government on general principle, of course, but Republicans had managed to make some degree of peace with it until Clinton was elected in 1992.  Then they discovered to their horror that having a federal government means that sometimes a Democrat can be in charge of it.  This led to a complete freakout on their part an unleashing of the economic royalist instincts they had kept in check till then.  Republicans ran not just against Clinton, but against government in general.  They denounced government as a monstrous parasite, draining our life blood, trampling liberty underfoot, and giving us nothing in return.  They ran for office promising to cut government, not with a meat ax, but with a chain saw.  One (state) candidate ran on a promise to eliminate her office altogether. 

The tactic proved wildly successful  Denouncing government as a pure an unmitigated evil proved an effective campaign strategy, and the Republicans won control of both houses of Congress for the first time in 40 years.  So naturally they assumed that if the American people hated government so much, shutting it down would be popular.  The American people, in turn, assumed that if government was a monstrous parasite draining our life blood, trampling on our liberty, and giving us nothing in return, then shutting it down would not be accompanied with any inconvenience.  When it turned out that shutting this monstrosity down cause problems, shutdown quickly lost its popularity and went out of practice for another 17 years.

The other shutdown to cause a crisis was the next one, the one that happened 17 years later in 2013, under President Obama and lasted 16 days.  Adding to the crisis was that it was not merely a shutdown, but also a threat to breach the debt ceiling.  The two events became blurred together in the public mind.  During the shutdown, Obama closed national parks and museums and non-essential services.  Republicans cried foul, saying that he was making the shutdown more painful than necessary to put pressure on them.  They had part of a point.  There can be no doubt that Obama really did want to make the point that a lot of government is more popular than most economic royalists think.  But they were dead wrong if they believed a shutdown could be made painless.  Far more dangerous than the shutdown was the threat of a default on the debt, a danger which ultimately led Republicans to back down.  Republicans went on to major victories in 2014, but did not shut the government down again throughout the Obama Presidency.

However, they do not appear to have learned the same lesson in 2013 as in 1996.  Instead of seeing shutdowns as an evil to be avoided, Republicans -- at least their right wing -- came to see them as the most emphatic way of stating their principles.  Quite a few times before this shutdown, when Trump failed to get funding for his border wall, he said that what we needed was a good shutdown to get it -- and this while the Republicans still controlled Congress!  There was a brief shutdown early in 2018, with parks and museums not closed, and minimal inconvenience.

And, most famously, at the beginning of this shutdown Trump said loud and clear on national television that he was proud to own a shutdown.  I can only assume from this that he expected shutdown to be popular, at least with his base.  And he left the parks and museums open -- only to find out that the Obama Administration closed them for a good reason.  Museums and parks deteriorate fast when open to the public but without maintenance staff.  And no end is in sight. 

Let's hope that this shutdown has a stronger impact than even the 1996 shutdown, and even leads to passage of the Stop STUPIDITCY Act to prevent any more of this uniquely American pathology.

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*There was an earlier shutdown in 1995, but not long enough to rate as a full-blown crisis.

So, on to Cohen

So, we finally some to the third major allegation in the Steele Dossier -- the Prague meeting between Michael Cohen and Russian representatives.

Memo 134 (pages 30-31, October 18, 2016), after discussing Carter Page's alleged meeting with Russian officials says that "a key role in the secret TRUMP campaign/Kremlin relationship was being played by the Republican candidate's personal lawyer, Michael COHEN."  The remainder of the paragraph is blacked out.

Memo 135, dated October 19, 2016, pages 32-33 picks up where the last one left off, saying that Cohen had taken over as the Trump campaign's Russia contact after Manafort was fired as campaign manager in August, 2016.  (Given the similarity to the earlier paragraph, could that be the blacked out section?).  It says that Cohen and Russian officials met in August, 2016 in "an EU [European Union] country" to discuss how to cover up the extent of contacts, particularly Manafort's business ties to Russia and Carter Page's conversations during his trip to Russia in July.  Since then things had only gotten "hotter," and the Russians were limiting themselves to unofficial contacts (i.e., not formal employees of the executive branch of the Russian government) to allow plausible deniability.  Steele's contact did not know who Cohen met with, or the date or place of the meeting but was working on it.

Memo 136, dated October 20, 2016 but for some reason pages 18-19, dates the meeting to August, 2016 and says it took place in Prague, and identifies the Russians involved as representatives of the parastatal firm Rossotrudnichestvo and and Konstantin Kosachev, a pro-Putin member of the Duma (Russian parliament).  The purpose of the meeting was damage control following revelations about Manafort and Page.  The meeting was originally scheduled for Moscow, but moved to Prague lest Cohen traveling to Moscow attract attention and suspicion.

Finally, Memo 166, dated December 13, 2016 (i.e., after Trump was elected) contains some extremely explosive revelations.  It dates the meeting to the last week in August or the first week in September.  It says that Cohen was accompanied by three colleagues and identified the Rossotrudnichestvo contact as Oleg Solodukhin.  It also appears from context to contain identifying information about Steele's source, blacked out.  More shocking are the details of the alleged conversation.  Plans were allegedly made on how to arrange deniable cash payments to the hackers.  The source says that a company (name deleted) had been using botnets and porn traffic to "transmit viruses, plant bugs, steal data and conduct 'altering operations' against the Democratic Party leadership."  Other names in the operation are named, but blacked out.  Cohen and the Russians discussed how to protect the operatives, particularly in the case of a Clinton victory, by making untraceable cash payments and allowing them to go into hiding.  (This was in addition to covering Manafort and Page's tracks).  Various Romanian hackers were to stand down, and others were to head for a "bolt hole" in Plovdiv, Bulgaria.  Finally, the memo says that the "operatives involved" were paid by both the Trump team and the Kremlin.

This last memo is particularly explosive.  It is the only one to indicate that the Trump campaign had advance knowledge of, or participated in, the hackings.  We can very well imagine that Mueller would consider proof of this allegation to be the gold standard -- proof of direct Trump involvement in the hacks.

Cohen's response was to deny having been in Prague and produce the passport to show it.  The general consensus appears to be that absence of Prague on the passport is not by itself conclusive.  EU countries have an arrangement allowing travel among members without having to go through customs, so any travel to Europe at the time of the alleged crime could have included slipping across the border into the Czech Republic.  Cohen did say he visited Italy in July, and his passport would presumably reflect the dates.  And he proved a definite alibi for August 29, 2016 -- the University of Southern California confirmed that Cohen was present with his son and met with the baseball coach.  Cohen said the USC visit lasted from August 23 to 29.  I do not know if those dates are confirmed.  He said that he was in New York for the first week of September, although it is not clear whether he has witnesses to support that.  Czech intelligence established he did not arrive by plane.  There was also evidence that he had been confused with a different (presumably innocent) Michael Cohen.

And there it seemed to lie -- until now. McClatchy now reports that one of Cohen's phones briefly sent a signal "in the Prague area in late summer 2016," apparently momentarily activated to download information.  McClatchy attributes this information to four anonymous sources, each obtaining the information independently "from foreign intelligence connections."  The report also quotes two anonymous sources at saying that an East European intelligence service picked up a conversation among "Russians" during the end of August or beginning of September, saying that Cohen was in Prague.  Later in the article, the two Russians are referred to as "officials" and the two sources appear to be two of the four sources that knew of Cohen's cell phone service.

Is this true?  Thus far no other outlet has confirmed this story, although they have been able to confirm most other such scoops.  And the McClatchy sources are apparently reporting second-hand information.

John Schindler, former NSA but with continued connections, says that someone else could have borrowed one of Cohen's many phones, or that signals of this kind can be forged.  However, he also confirms the report from a friendly spy service about two Russians mentioning Cohen's presence in Prague.  He also says that the NSA picked up a conversation between Kremlin bigwigs "in the late summer of 2016" saying that Cohen was in Prague, although not what he was doing.  He does not say whether this was the same conversation that a friendly service picked up.  Schindler is emphatic that the Western intelligence services did not spy on the meeting.  But that does not disprove its existence.  After all, our intelligence services appear to have learned about the Trump Tower Meeting when they read about it in the New York Times.  So they are not infallible.

Prague architecture

Cohen's first impulse upon being accused of meeting with the Russians in Prague was to deny having been in Prague at the time.  I suppose it is possible that he was in Prague on an innocent errand and simply thought that denying having been there would be more convincing than attempting to prove that the visit was innocent.  But it seems more likely that if he was in Prague and lied about it, he was up to no good.  And certainly if his visit attracted the attention of Kremlin bigwigs, it seems unlikely that he was there to admire the beautiful architecture.

So it would appear that what Mueller (and, presumably, the intelligence services) has is Steele's highly inflammatory allegations about Cohen's activities in Prague, supported by a conversation between two Kremlin bigwigs mentioning his presence in Prague at about the time of the alleged crime (either picked up by two intelligence services, or two such conversations), and a possible signal from Cohen's cell phone in Prague at about the time of the crime.  We have about a two-week window to work with, and Cohen claims to have an alibi for the first week and definitely has one for at least August 29.  We are not told whether the cell phone signal and the discussion of Cohen's presence are at within the time frame Cohen does not have an alibi for, or how close in time they are.  (We do apparently know that there is no record of Cohen staying at any Prague hotel, so his visit was presumably a short one).

More Prague architecture

What they do not have is hard evidence of what Cohen was doing in Prague that caught the attention of the Kremlin.  There are things that can be done.  Steele appears to have included the names of his sources of this information.  Mueller and the intelligence community can assess their reliability.  They can investigate Kosachev and Solodukhin to see if there is any evidence they were in Prague at the time of the alleged crimes.  Steele also appears to have named an internet company and individual hacker that can be investigated.  They can investigate possible Romanian hackers involved in the DNC hacks who went silent about this time, or hacker havens in Plovdiv, Bulgaria.  And, of course, they can look for suspicious money flows of the type described in the memo. 

But it seems unlikely that any of these participants will cooperate, and unlikely that there will be sufficient evidence without a cooperating witness.  Which means, in short, that if Michael Cohen really was up to no good in Prague, it can be extremely difficult to make charges stick.  But if the Mueller investigation can prove that he was in Prague and lied about it (either to Congress or the FBI), they will have a case of perjury, serving as a cover to much more serious charges of espionage that are harder to prove. 

Hence the popularity of prosecutions for perjury, as well as income tax evasion.

The Steele Dossier Revisited: Why it May Matter

All of which is a sort of a lead-up to the real issue -- evidence that Michael Cohen really did visit Prague in August or September of 2016.

To recap:  We don't know what evidence the intelligence community has obtained through wiretaps, friendly intelligence services and the like about Trump and Russia.  The most damaging information against the Trump campaign that has gone public is the notorious Steele Dossier, which alleges extensive coordination between the Trump campaign and the Russian intelligence hacking the Democrats and releasing their information through Wikileaks.  The Steele Dossier is the product of milking the rumor mill in Russia.  The rumor mill produces material of mixed reliability, possibly including some deliberate deceptions.  It should therefore not be believed without further verification. No open source, whether Steele, his employers, the Clinton campaign, or the news media have been able to verify the contents.  What the intelligence community may have verified is unlikely to see the light of day for fear of giving away vital sources and methods.

Of the many allegations in the Steele Dossier, three stand out as most sensational.

1. That when Trump was in Moscow for the 2013 Miss Universe competition, he was filmed hiring Russian prostitutes to urinate on the Obamas' bed, and that the tape was used to blackmail him.  
2. That when Carter Page traveled to Moscow in early July, 2016 to deliver an address to the Higher Economic School in Moscow he secretly met with two Russian officials.  Igor Sechin, chairman of Rosneft, a Russian oil company, offered the Trump gang "the brokerage of up to a 19 percent (privatised) stake in Rosneft" in exchange for relief on sanctions.  Page expressed an interest but did not commit.  Page also met with Igor Divekin, a Kremlin official of some sort, and mentioned that the Kremlin had damaging information on Hillary Clinton and discussed the possibility of sharing this information, while also broadly hinting that the Kremlin had damaging information on Trump if he did not cooperate.  
3. That Michael Cohen met with Russian officials in late August or early September, 2016 in Prague and arranged for the Trump organization to help pay and conceal the hackers that Russia had employed.

Of these three allegations, the first is the most publicized, but the least significant.  If Trump did, in fact, hire Russian prostitutes to pee on the Obamas' bed, that would be embarrassing but, at worst, a petty misdemeanor, and well outside of US jurisdiction.  It seems unlikely that mere fear of embarrassment could induce the sort of compliance that Trump seems to be showing.  It is, however, widely believed in intelligence circles that there may be some kind of sex tape used for blackmail, and perhaps more than one, and possibly showing something a good deal worse.

The second allegation is both the only one to appear in the press before the existence of the dossier was revealed by Mother Jones on October 31, 2016 and the basis of the FISA warrant on Carter Page.  The sequence of events here is interesting.  Page's trip to Russia is undisputed. 

On July 7-8, 2016 he appeared in Moscow and gave a public speech to the Higher Economic School in which he said that the US should mind its own business and not meddle in Russia's internal affairs. 

On July 19, 2016, Report 94 said that Page had met with Igor Sechin, the head of Rosneft to discuss lifting sanctions and "possible future bilateral energy cooperation."  Page reacted positively but made no promises.  It also alleges that Page met with Kremlin official Igor Divyekin, who told Page that the Kremlin had compromising material on Hillary Clinton and discussed possibly releasing it to the Trump campaign.  Divyekin also hinted that the Kremlin might also have damaging materials on Trump and that he should keep that in mind.  No mention is made of the possible Rosneft bribe, merely "bilateral energy cooperation."

On September 23, 2016, national security reporter Michael Isikoff ran an article in Yahoo News.  Much of the article dealt with public information, such as Page's background, his (somewhat nebulous) rule in the Trump campaign, and his July visit to Moscow.  However, the article also alleges that Page met with Sechin, an individual under sanctions, to discuss possible lifting of sanctions, and with Divyekin.  No mention is made of Divyekin either offering damaging information on Hillary or threatening Trump with release of other damaging material.  Isikoff's primary source for his article was, in fact, Michael Steele and the material he had gathered to date.  He takes care to disguise his sources, making the article sound as though it originated with members of the Congressional intelligence committee.  He does drop a few hints here and there, saying that "a well-placed Western intelligence source" says that Congress has been briefed on Page's meeting with Sechin, and that "U.S. intelligence agencies have also received reports" of the meeting with Divyekin. The disguise was apparently good enough to fool the FBI, which stated in its FISA application that, despite startling similarities, it did not believe that Steele was the source of Isikoff's information. 

On October 18, 2016, Report 134 gave further details about the meeting.  It confirmed that the date was July 7 or 8, during Page's trip to Moscow to address the Higher Economic School (no surprise there).  This memo also says that Sechin promised "the brokerage of up to a 19 percent (privatised) stake in Rosneft" in return for sanctions relief, that Page promised sanctions relief, and that Page did not expressly say that he had Trump's authority to promise, but he implied it.  The memo goes on to say that Sechin no longer believed Trump could be elected and that Michael Cohen was playing an important role in communications with the Kremlin, further details blacked out.

Some time in October, 2016 (the date is blacked out), the FBI applied for a FISA warrant on Page, using Steele's report as its primary source.  We do not know whether the application was made before or after Steele's second report on the meeting, or how long it took from the time Steele prepared the report until the FBI received it.  However, the second report does not appear to have influenced the application.  The report makes no mention of the Rosneft deal, but only of "future bilateral energy cooperation" and lifting sanctions.  It also mentions Divyekin and his proposal to give the Trump campaign damaging information on Hillary Clinton.  (Pages 15-18).  Significant portions of the footnotes confirming Steele as reliable are blacked out.  This information is followed by two pages that are blacked out and my contain corroboration. 

The FBI reviewed the application in January, 2017; April, 2017; and June, 2017.  (FISA warrants automatically expire after 90 days unless renewed).  These new applications contain further information, much of it blacked out.  None mentions anything about bribery with Rosneft stock.  All mention that after James Comey announced that the FBI was re-opening its investigation of the Clinton e-mails and her political fortunes tanked, Steele expressed frustration and made an unauthorized leak of his materials, and that the FBI severed relations as a result.  All continue to say they do not believe Steele was the source of the Yahoo article, long after it should have been apparent that he was.

Oh, yes and a 19% share of Rosneft really was privatized (though not sold to Trump and associates).  And Sechin's chief of staff (a possible source) really did turn up dead under mysterious circumstances.

So what are we to make of all this?  First of all, the Steele Dossier is not despite the impression sometimes given, the origin of the government's investigation of Trump's Russia ties, nor is it the central hub of their investigation.  Certainly Steele was not the source of information on the Russian hacks of the Democrats.  Nor was the the first or only source of information about Trump's ties to Russia.  Apparently the investigation began when Trump adviser George Papadopoulos made some drunken and offhand comments to the Australian ambassador about getting information from Russia.  People in the know also say that there was plenty of signals intelligence from allies indicating suspicious contacts between Trump and the Russians.  One claims that the investigation began when a Baltic intelligence service overheard a conversation about money going from the Kremlin to the Trump campaign.  Certainly Mueller's indictments make clear that we know a great deal about Russia's activities on behalf of the Trump campaign that have nothing to do with the Steele Dossier.

But there is evidence that the Steele Dossier was important as well.  It was important enough to be the primary source of information for a warrant to wiretap Page.  Based on the foregoing, I would guess that the intelligence community had enough information to know that Page really did meet with Sechin and Divyekin during his visit to Moscow and was lying when he denied it.  It may have known that Page and Sechin discussed lifting sanctions, or that may simply have been an educated guess given the context.  But it did not know the details of the conversation, including the Rosneft bribe and Divyekin's discussion of compromising materials.  Presumably Sechin and Divyekin know enough to be careful what they say over any sort of electronic communications because someone might be listening in.  Thus Steele's milking of the rumor mill may have been the best source available for what happened in those meetings.

But this is the mere speculation of an Enlightened Layperson.  In my next post I intend to discuss the Steele Dossier and Michael Cohen.  Spoiler alert:  My conclusions with Cohen are similar to the ones about Page.

When Does it Become Prosecutorial Abuse?

So, granted that prosecutors regularly charge people with minor matters like perjury or income tax evasion when the real, underlying crime is too hard to prove, when does it become an abuse to do so.

When is it an abuse to charge a suspect with something other than the real, underlying offense, either because the real underlying offense is, though morally offensive, is not actually a crime, or because the real offense is too hard to prove?  And some Trump supporters are currently saying any time it is done:

They’re trying to Al Capone the president. I mean, you remember. Capone didn’t go down for murder. Elliot Ness didn’t put him in for murder. He went in for tax fraud. Prosecutors didn’t care how he went down as long as he went down. The same goes for Democrats. Whatever avenue is needed to bring down the president, they’ll take it.

The clear implication here is that if there was not sufficient admissible evidence to charge Capone with murder, then charging him with a lesser but more provable crime was dirty pool.  A critic caustically comments:

You might wonder why Trump’s supporters believe his legal defense is aided by analogizing him to a murderous criminal. Perhaps the answer is that Capone had several qualities that recommend him to the Republican grassroots base. He was a business owner — or, in modern Republican lingo, a Job Creator. He was an avid Second Amendment enthusiast. And, most importantly, Capone, like Trump, was a victim of the deep state.

Most people, I think, would agree that stopping Al Capone was a worthy goal and if a little legal trickery was called for, then it was well worth doing.  Capone was, after all, guilty of sin of tax evasion.  Should he be given immunity from prosecution for tax evasion simply because he was guilty of much worse as well?   That doesn't seem logical.

More realistically, there are some things that are technically crimes but almost never charged as such.  A charge under a technical crime usually means that there is something else afoot, more serious but harder to prove.

Hillary Clinton's e-mail server has been used as an example.  Sending State Department e-mails on a private server does meet the technical requirements of mishandling of classified information.  People have been prosecuted for mishandling classified information.  But usually there is something more than just mishandling.  James Comey explained:

All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.

If you want a classic case of prosecutorial misconduct (and under a Democratic administration no less) the classic case would be the case of Wen Ho Lee, who was prosecuted on simple charges of mishandling classified information.  Wen Ho Lee was a Taiwanese-American scientist as Los Alamos Labs, suspected of spying for the Chinese.  In fairness to the "Justice" Department, the Chinese really did obtain classified information, Lee really did have access to such information, and he really did mishandle classified information, i.e., he stored it on an unclassified, though secure system.  However, the investigation found clear evidence before even bringing charges that Lee could not have been the spy for China, since the information provided include materials that lee did not have access too.  Lee was nonetheless indicted on 59 counts and held in solitary confinement for nine months.  He ultimately pleaded guilty to one count and was released, with apologies from the judge.

So, the obvious difference between the case of Wen Ho Lee and the others was that in Lee's case, although his actions were technical crimes, there was no other, more serious crime that the government lacked evidence to prove.  Or rather, there was such a crime (spying for China), but the evidence was overwhelming that Lee was not the guilty party. 

So, the short version is, if there is a serious underlying crime that is difficult to prove, prosecuting on a less serious, but easier to prove crime is not an abuse of power.  Prosecuting on a technical crime out of resentment, or just to throw one's weight around is an abuse of power.  Admittedly, there are gray areas, when the government believes there is a serious crime, but the obstacles to prosecution are not just strict rules on admissibility, but genuine weakness in the evidence.  Such cases exist.  But Al Capone was not one of them.  Neither were Spiro Agnew or Paul Manafort.  As for Flynn and Cohen -- I suppose we will see.

Why is it Always Tax Evasion or Perjury?

So, what do Al Capone, Spiro Agnew and Paul Manafort have in common?  Among other things, all were brought down for tax evasion when tax evasion was the least of their crimes. 

The reason for it should be obvious.  All made their fortunes by illegal means.  In Capone's case, that mean bootleg whiskey, as illegal in his day as drug dealing is in ours.  Agnew made is money by taking bribes, some of them while he was Vice President.  And Paul Manafort by influence peddling and shady overseas business.  But standards of proof for such things can be stringent. 

Not only must the crime be proven beyond reasonable doubt, it must be proven beyond reasonable doubt with admissible evidence.  Everyone out on the street might know that Capone was a bootlegger, that Agnew took bribes, and that Manafort did business with Russian gangsters.  But what everyone on the street knows is not admissible evidence.  It is hearsay.  What is needed is specific witnesses to specific acts on specific dates.  This can be difficult to do when the witnesses fear for their lives if they testify.  Evidence such as financial records are also hearsay and must have specific witnesses who can testify to the authenticity of the record and what they mean.  Criminals do their best not to create a paper trail.  And decent money laundering can make it extremely difficult to prove the illicit origins of of the suspect's fortune, even if no one doubts that it is so.

But what is really easy to prove is that (1) the suspect has a fortune and (2) he never paid taxes on it. 

Much the same applies to perjury.  If a suspect lies to cover up some shady behavior, it may be difficult to prove exactly what the suspect really did, which would be necessary to convict the suspect of any underlying crime.  The underlying conduct, though shady, may not be an actual crime.  Or the suspect may actually have been tried for the underlying crime and acquitted based on his own testimony, which means that a second prosecution is barred by double jeopardy.  But if you can prove that any aspect of the suspect's sworn testimony was false, you do not need to prove what actually happened to support a conviction for perjury.

Thus Alger Hiss was convicted of perjury on the grounds that he had lied to a grand jury about being a Soviet spy.  He could not be charged with espionage because the statute of limitations had expired.

Michael Flynn pleaded guilty to lying to the FBI (not actually under oath, but also a crime) about the contents of his conversation with Russian Ambassador Sergey Kislyak.  Flynn said the conversations were a mere exchange of pleasantries.  In fact, he was asking the Russians not to escalate tensions in response to then-President Obama's actions in expelling Russian diplomats.  To do so may have been a technical violation of the Logan Act, which forbids private citizens from interfering in the government's foreign policy.  But then again, no one has ever actually been prosecuted under the Logan Act.  And, as much to the point, someone who is about to become National Security Adviser in a matter of days in an incoming administration is not just any private citizen.  It is not unreasonable for an incoming administration to talk to foreign diplomats about what sort of foreign policy to expect once the changeover occurs.  Now, if those conversations were part of quid pro quo in which Trump agreed to pursue a pro-Russian policy in exchange for Russian help being elected, that would be a crime.  But nothing in the Flynn-Kislyak conversations can support such a charge.*

Michael Cohen has pleaded guilty to lying to Congress (presumably under oath) about Donald Trump being in negotiations to build a Trump Tower in Moscow while he was running for President.  Building a Trump Tower in Moscow is not a crime.  At some point, if the candidate involved wins the election, it can become a form of bribery, which is a crime, but the lines between bribing a politician and engaging in legitimate business with him can become hazy.  And there was talk of greasing the deal by offering Vladimir Putin a free $50 million penthouse in the tower, which violates the Foreign Corrupt Practices Act, but probably did not get far enough to be an actual crime.  (He has also been charged with bank fraud and tax evasion on matters unrelated to the Russia investigation).

And if anyone wants to put the squeeze on Jared Kushner, he has told enough lies on his security application about foreign contacts, debts, and who knows what else to put him away for about 1,000 years.

Next:  Is this an abuse of prosecution?

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*That being said, there is more going on with Flynn than we know.  The Addendum to the Flynn Sentencing Memorandum says that Flynn has provided substantial assistance to the Special Counsel's Office (SCO), both regarding contacts between the transition team and Russia and on something else that is blacked out, but takes up a little more than a page.  Flynn has also assisted in a criminal investigation unrelated to the SCO and blacked out, taking up approximately one page.