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.
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