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Mueller’s Indictment of the 13 Russians: Huffing and Puffing with No Substance

February 19th, 2018 Leave a comment Go to comments

I am disturbed by the Mueller indictment of the 13 Russians. Some of what disturbs me may be not knowing legal procedure well enough, in which case I hope somebody tells me. This will help focus my thoughts.

What Mueller has done is indict 13 Russians, all in Russia so they are safe from arrest and the case will never come to trial, of (1) conspiracy to defraud the U.S. government, and (2) wire fraud.  He does not indict them for violations of election law. He does spend 37 pages making allegations of behavior by the Russians, but how they relate to the crimes they’re accused of is often unclear.

The wire fraud part is clear. What that  and “identity theft” means is that the Russians used real Americans’ social security numbers to pretend to be those people and set up bank accounts, buy Facebook ads, and so forth. The Russians did not harm those people in any way; the purpose was just to keep anyone from knowing it was Russians doing those things. Thus, it was similar to when an illegal immigrant uses a fake social security number to get a job. Mueller indicted one American, separately, for helping get the fake ID’s.

Why indict the American separately? My guess is that Mueller knew he’d actually face pushback from the American, and that most of the indictment wouldn’t stand up to examination by opposing counsel.  By indicting the American separately, Mueller could use just the legally sound stuff about ID fraud and save the rest from challenge.  This explains, too, why the main indictment doesn’t feature any other Americans. It was important not to have anyone hire opposing lawyers to quash the indictment. Since the Russians wouldn’t bother, Mueller was free to put in any nonsense he liked, without anyone having both standing and desire  to challenge it.

The fake identity part of the indictment is correct, but trivial. Mueller could go to any chicken-packing plant and find a lot more than 13 people to indict for that kind of thing. So let’s look at Count 1, the Conspiracy to Defraud. It says that the  13 Russians

      “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.”

How did they do that? They did things like creating pages on Facebook and Instagram  and buying ads on social media,  they ran Twitter accounts,   they set up computers in the U.S. so people wouldn’t know they were Russians,   they set up email accounts, and  they contacted media outlets. Put simply: they spread propaganda and engaged in independent campaign expenditures. Much of what they did was issue advocacy or rumor spreading. Some was actual partisan campaigning, e.g.  “Choose peace and vote for Jill Stein.”   This included purchasing social media ads to campaign for Trump and against Clinton. Not all the activity was online. They also organized political rallies. Mueller says they did  this  “with the stated goal of “spread[ing] distrust towards the candidates and the political system in general.””

   Was any of that illegal, though?  The indictment doesn’t specify any law that broken. An indictment is supposed to do that. It’s supposed to tell the defendant which part of the U.S. Code he violated, which part the Justice Department wants to put him in prison for. There’s some of that in the fake ID count, but not in the main part of the indictment. It’s just “conspiracy to defraud the United States”. To be sure, paragraphs 25, 26 and 27 talk in general terms about the Federal Election Campaign Act, the Foreign Agent Registration Act, and the duty of the Department of State to issue visas, but that’s the last we hear of specific laws— and it’s just hand-waving there, with no specific U.S. Code sections mentioned.  So what law are the Russians supposed to have broken?

I think it’s unspecified because everything they did was legal. It’s well-established that foreigners have a right to free speech in America. That includes the right to say they favor Trump for President and organize political rallies. There’s a law against foreigners making political contributions to a candidate, but that’s not what the Russians did. They expressed opinions. Even buying political ads is legal. They made independent expenditures, which is another form of free speech. If they had coordinated these expenditures with the campaigns, then that would be like a political donation and would be illegal, but they didn’t do that.

Nor is it illegal to conceal your identity when you express your opinions.  Setting up front groups is commonplace. Using false names for Internet comments is routine.  If you do that, you’re not committing a crime.

Nor is it illegal to try to spread “distrust towards the candidates and the political system in general”.  Lots of Americans do that too, and it’s ok. I myself am  heavily distrustful of both Trump and Clinton and I encourage other people not to trust them. Indeed, in this very blog post, I am spreading distrust of the U.S. Department of Justice, an organization to which Americans, especially liberals, give far far too much respect.

Well, even if it isn’t illegal for foreigners to express political opinions, shouldn’t it be? No.  We don’t want to live in a country where a Russian visiting professor can be hauled off to prison by our secret police if he tells an informer that he thinks Trump is the best candidate for President. That isn’t to say we shouldn’t restrict him from giving money to Trump, just as we restrict Americans from making unlimited political donations. But we don’t want to give our secret police the power to imprison people who speak out against  the government, even if they’re foreigners.

Liberals disagree. They are reacting hysterically. Noah Bookbinder and Norman Eisen say,

“The scheme he has uncovered threatened the very fabric of our democracy.”

Max Boot says,

“Imagine if, after 9/11, the president saw the attack as a political embarrassment to be minimized rather than as a national security threat to be combated. That’s roughly where we stand after the 2nd-worst foreign attack on America in recent decades.”

Rep. Jerry Nadler says,

“The president and the Republicans in the House for that matter refuse, refuse to do anything about protecting us from an attack. Imagine if FDR had denied that the Japanese attacked us at Pearl Harbor and didn’t react. That’s the equivalent….Not in the amount of violence, but in the seriousness, it is very much on par.”

I don’t think they believe what they’re saying, any more than President Trump believes the hyperbolic things he says. After all, if the scheme really does threaten the very fabric of our democracy, is about as serious as 9-11, and is equivalent to Pearl Harbor, what should our response be? We should declare war on Russia and call on our allies to join us in destroying that country, even if  millions of people must die to suppress the Russian trolls.  Nobody really believes that.  But it bothers me that they do think that foreigners should be subject to arrest by the FBI if they criticize  the U.S. government.

Back to Mueller, though. We see that Mueller didn’t even try to indict the Russians for the great bulk of the things they did. The 37 pages are a report disguised as an indictment. He is blowing smoke. I read somewhere that Mueller is not allowed to issue reports to the public. He can send reports to the Justice Department, but the people there are the ones who get to decide what to publish. He can make indictments, though, because that’s his job as a prosecutor, and indictments can be made public—perhaps they must be made public unless the judge gives special permission.  So he is trying to get around the rules by folding a report into an indictment.

Let’s return  to the actual charge, conspiracy to defraud the United States. Even if the Russians did nothing else illegal, haven’t they been  “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”?

The particular law the Russians are accused of violating is 18 U.S. Code § 371 – Conspiracy to commit offense or to defraud United States,

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

  I don’t know exactly what this law means. I’ve been looking for informed legal commentary this past few days, but there isn’t enough to be able to tell. It looks as if 18 U.S. Code § 371 is supplementing other federal criminal laws by adding an extra penalty for when two people coordinate to break some law, and for making   the planning illegal even where the specific law doesn’t make uncompleted attempts illegal. If I rob a post office alone, that’s a crime, but if I make plans to rob a post office but never do it, that’s legal. If I make plans with someone else, though, that’s illegal even if we never carry them out, and if we do, we get punished separately for both the planning and the operation.

  In this indictment,though, what is the underlying offense?  

It’s noteworthy that Mueller  chose to release the indictment on  a Friday afternoon just after a school massacre and have his boss Rodenstein announce it rather than announce it himself. Friday afternoon is notoriously the time when politicians release admissions of scandals they want to get over with quickly. I think Mueller’s embarassed by the indictment, and hopes nobody looks at it too closely.

In closing, I’ll comment on one other item that has been misinterpreted in the media.  Paragraph 58 is titled “Destruction of Evidence”.  It says that the Russians deleted email accounts.  One Russian is quoted as emailing,  “We had a slight crisis here at work: the FBI busted our activity (not a joke). So, I got preoccupied with covering tracks together with the colleagues.”  The thing is, there’s nothing illegal about deleting your email accounts. It’s not destruction of evidence or obstruction of justice. Even if you’re engaged in a crime, you’re not under a duty to preserve evidence. If a burglar wipes off his fingerprints, we don’t charge him with obstruction of justice. Here, there wasn’t even a crime. “FBI busted our activity” doesn’t have to mean they were doing anything criminal— just something secret that the FBI was spying on.

All of this should make us very suspicious of Robert Mueller. It looks like he is grandstanding and doesn’t want to admit that he hasn’t found any evidence of illegal Russian behavior except for buying fake ID’s, something on the level of underage teenagers trying to buy a keg of beer.  I don’t have time at the moment, but it would be worth comparing this with the Manafort indictment. There, too, the indictment huffs and puffs and then the actual crime turns out to be something trivial— non-registration of his lobbying firm, if I remember rightly.  The Manafort indictment reads along as if Mueller were going to indict Manafort for large-scale tax evasion, but in the end that isn’t in the indictment. I wonder now if that’s because the allegations of tax evasion were lies, claims inserted to make Manafort look bad but with insufficient evidence to support indictment.  The Russians indictment shows the same pattern: lots of evil-sounding allegations, and very little substance at the end of the day. 



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