Saturday, April 27, 2019

Post-Election Contacts and Prosecution and Declination Decisions

Team Trump had Russian contacts after the election as well.  Some of these were probably technical violations of the Logan Act, which forbids private citizens from interfering with US foreign policy.  But no one has ever been prosecuted under the Logan Act, and a soon-to-be-inaugurated team is not, after all, the same as just any private citizen.

Trump officials may take it as further vindication that there were no official channels of communication established during the campaign, and that after Trump won the Russians scrambled to establish communications, official or unofficial.

There appears to have been extensive outreach on the Russian side by wide range of unofficial intermediaries, making an attempt to reset relations, but not much actual success.  The details are too dull and confusing to follow.

More significant are outreach attempts by Michael Flynn.  Flynn tried, unsuccessfully, to get Russia to block a UN resolution condemning settlement building by Israel.  More significantly, Flynn successfully persuaded the Russians not to retaliate for Obama's sanctions against Russia for election interference.  It was Flynn's lying about these conversations that led to his ultimate guilty pleas.

Decisions on prosecution or not

No US person was found to be involved in the Troll Farm, other than Richard Pinedo, who participated in setting up fake accounts, though not knowing that any Russians were involved. 

As for the hacks and releases, most of the section is blacked out as affecting an ongoing matter.  However, there is one footnote saying that Special Counsel's Office decided that sharing and dissemination of the hacked e-mails does not meet the legal standard of trafficking in stolen property.  That is presumably why Roger Stone's outreach to and attempts to influence Wikileaks are not being charged as crimes.  (Things blacked out as affecting an ongoing investigation usually refer to Roger Stone).

Special Counsel did not find anything that could be charged as conspiracy with the Russians.  This is the section of the Report that William Barr quoted at most length.

Special Counsel did charge Manafort and Gates with being unregistered foreign agents (lobbyists) for pre-campaign activities.  A lot of their activities during the campaign sound mighty suspicious, not apparently not enough for the Special Counsel.  The Report also comments that Michael Flynn was an unregistered Turkish agent, but that is outside the scope of their investigation.  The Report says there is not sufficient evidence that Papadopoulos, Manafort or Page acted as foreign agents during the campaign, with a section blacked out for reasons of personal privacy.  Color me skeptical.  The Report notes that the FISA court found probably cause that Page might be a foreign agent, but that the standard for probable cause is lower, not only because it does not require beyond reasonable doubt, but because criminal prosecution is limited to admissible evidence and a FISA warrant is not.

The report also explores whether accepting information about Hillary from a foreign government violates campaign finance laws against foreign interference, particularly in the context of the Trump Tower meeting.  The ban on foreign interference is not limited to money donations but includes any "thing of value."  So is an offer to provide "official documents and information" a "think of value"?  Special Counsel apparently did not find a direct precedent.  "Things of value" definitely include membership lists and mailing lists, and apparently include campaign literature.  Opposition research, however, has never been addressed, so the Special Counsel's Office declined to push the envelope and prosecute.  Also, the campaign finance violation must be done "knowingly and willfully."  Ignorance of the law is not normally a defense, even for crimes that must be done "knowingly and willfully."  Special Counsel cites at least some precedent that it is a defense in this case.  (I would have to do independent research to decide whether I agree).  Assuming ignorance of the law to be a defense, it could readily be available to Junior and Jared.  The Report acknowledges that Manafort was an experienced campaign operator, but they can't actually prove that he knew his conduct was illegal.  (NOTE:  Difficulty proving that someone knew the law is the main reason that ignorance of the law is not normally considered a defense).  Finally, the "thing of value" must be worth over $2,000 to be a misdemeanor and over $25,000 to be a felony.  How do you put a price on the promised (but not delivered) information?

The report then addresses how this standard applies to another matter, blacked out as affecting an ongoing matter.  Presumably that refers to Roger Stone's attempts to coordinate with Wikileaks which is, after all, run by an Australian.  Unless it is also included in the blacked-out section, the Report does not appear to address the unsuccessful attempts to obtain Hillary Clinton's deleted e-mails.

The Report did find that members of the campaign committed crimes either in lying to investigators, lying to a grand jury, or otherwise interfering with the investigation.

George Papadopoulos lied about the timing of his contacts with Professor Mifsud and Russian nationals (he claimed they were before he joined the campaign), about the extent of those contacts, and the importance of the people he spoke to.

Michael Flynn lied about the nature of his communications with the Russian Ambassador.

Michael Cohen lied about a project to build a Trump Tower in Moscow, both saying that the project ended in January, 2016 (when the campaign got seriously going), and about the extent of Trump's involvement.

Jeff Sessions did not answer accurately about speaking to Russian Ambassador Sergei Kislyak.  However Special Counsel found that those communications were little more than routine exchanges of pleasantries, so that Sessions might have forgotten, or not understood the question to mean such routine exchanges.

Two sections are blacked out, one as involving an ongoing matter (presumably Roger Stone) and one as involving grand jury testimony (probably Paul Manafort).

All I can say at this point is that so much lying looks suspicious.  It may have been done simply to avoid embarrassment.  But it makes the parties, especially Papadopoulos and Manafort, look guilty as sin.

Total report on possible conspiracy: 199 pages.  Next comes the section on obstruction of justice that Trump has found most embarrassing.

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