Thursday, July 25, 2019

The big news on former special counsel Robert Mueller is not about yesterday's hearings; it's about a law professor's analysis that shows the Mueller Report is riddled with "historic" errors -- of both fact and law

Robert Mueller

The most significant Robert Mueller news did not come yesterday when the former special counsel testified before two Congressional committees about his investigation of the Russia-Trump scandal. It came two weeks ago when a respected law professor showed the Mueller Report is riddled with errors, both of fact and law.

Jed Shugerman, a professor of law at Fordham University, wrote an article at the Daily Beast (dated July 10, 2019), titled "Mueller Missed the Crime: Trump’s Campaign Coordinated With Russia." Sub-title on the article was "The special counsel will testify before Congress (in two weeks). He needs to answer for historic legal and factual errors."

We see no signs that any Democrat at yesterday's hearing questioned Mueller in a way that clarified the errors in  his report. And according to Shugerman, the errors were many; in fact, Shugerman published a blog post yesterday morning that outlined at least 10 major errors in the Mueller Report.

How did these errors affect the public's ability to understand possible Trump-era criminality? Here's how Shugerman puts it in the Daily Beast article:

Ever since the release of the Mueller Report, countless commentators have implored everyone to just #ReadtheReport. The problem is not who is reading it—the problem is the report itself, and its many errors.
Jed Shugerman
Robert Mueller made a significant legal error and, based on the facts he found, he should have identified Trump campaign felonies. Mueller’s errors meant that, first, he failed to conclude that the Trump campaign criminally coordinated with Russia; second, he failed to indict campaign chairman Paul Manafort and his deputy Rick Gates for felony campaign coordination . . . third, the 10 acts of felony obstruction in Volume II fell flat among the general public because it lacked compelling context of these underlying crimes between the campaign and Russia. On top of these errors, the former special counsel said he deliberately wrote the report to be unclear because it would be unfair to make clear criminal accusations against a president.
The bottom line is that the Mueller Report is a failure not because of Congress or because of public apathy, but because it failed to get the law, the facts, or even the basics of writing right. When Mueller testifies before Congress on July 24, he should be pressed on all of this.

Perhaps Mueller's biggest error involves his analysis of coordination between Russia and the Trump campaign. Writes Shugerman:

The DOJ’s initial appointment explicitly tasked Mueller with investigating campaign “coordination,” and it is not too much to ask that he get the law of “coordination” right. The report stated that “‘coordination’ does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express.”

However, Congress purposely sought to prevent such narrow interpretations: in 2002, it passed a statute directing that campaign finance regulations “shall not require agreement or formal collaboration to establish coordination.” The Federal Election Commission established the regulations for the implementation of the statute: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” with no need to show any kind of agreement.

Outside spending for coordinated communications is an in-kind contribution, and foreign contributions are completely prohibited. And Congress made the criminal penalties unmistakably clear: “Any person who knowingly and willfully commits a violation of any provision of this Act” commits a crime. The Supreme Court upheld these limits in McConnell v. FEC with crucial observations about the functional role of suggestions, rather than agreements: “[E]xpenditures made after a wink or nod often will be as useful to the candidate as cash.” (The Trump-Russia) timeline is full of suggestions far more explicit than winks and nods.

As the Supreme Court acknowledged, this is not about bribery and quid pro quo; it’s about outsourcing a consistent campaign messaging and expenses to known allies. It seems Mueller did not hire any legal experts with experience in campaign finance regulation. Given that this investigation was about campaign crimes, this appears to be a revealing oversight with serious consequences.

House Democrats yesterday seemed to alternate between praising Mueller as a "legal giant" and asking about various allegations of obstruction of justice by the Trump team. Lost in the shuffle were the myriad errors Mueller made regarding coordination between Russia and the Trump campaign. Embedded below is Shugerman's summary of those errors, many of which were not adequately addressed in yesterday's hearings -- because Democrats were too busy fawning over Mueller, and Republicans . . . .well, they are just worthless.

Yesterday's hearings were mostly a waste of time. Jed Shugerman's analysis of the Mueller Report definitely is worth your time.


Anonymous said...

Mueller's status as a "savior" seems to be fading.

Anonymous said...

Mueller repeatedly said "the report speaks for itself." After reading Prof. Shugerman's analysis of the report, those words ring pretty hollow.

Anonymous said...

Mueller and his team got the law wrong on collusion/coordination? I feel a face palm coming on.

legalschnauzer said...

@9:59 --

This reminds me of all the judges -- state and federal, trial and appellate -- who get the law wrong over and over, and they get away with it.

How many millions of dollars were wasted on the Mueller charade? And Nancy Pelosi is doubling down on that waste by refusing to start impeachment proceedings.

That sound you hear is our democracy being sucked down the toilet.

Anonymous said...

Ever since the Mueller Report came out, I've found it odd that he pushed the obstruction of justice narrative, while blowing off the collusion angle. The press and the public seem to have bought it. But now, we learn Mueller used the wrong legal standard for collusion. Very disturbing.

Anonymous said...

Makes me wish Prof. Shugerman had been the one asking questions yesterday.

Anonymous said...

None of the Dems on the committee were aware of the Shugerman article, which came out two weeks before the hearing? None of them thought to pose questions to Mueller, based on the Shugerman analysis? Somebody was asleep at the switch.

Anonymous said...

Michael Moore ripped Mueller a new one on Twitter . . .

Michael Moore
A frail old man, unable to remember things, stumbling, refusing to answer basic questions...I said it in 2017 and Mueller confirmed it today — All you pundits and moderates and lame Dems who told the public to put their faith in the esteemed Robert Mueller — just STFU from now on

legalschnauzer said...

Off topic: Jeffrey Epstein has been found injured and almost unconscious in his cell, apparently the result of a beating or a suicide attempt.

My immediate thought: Was this attempted murder. A lot of powerful people probably would like Epstein to exit this earth, stage left.

legalschnauzer said...

Interesting take from Axios:

Anonymous said...

Prof Shugerman makes a yugely important point. If Trump is re-elected -- or re-appointed by Putin -- he can run out the five-year statute of limitations and never be held accountable for his crimes. There is no tolling provision to stop the clock, so Donnie can go free -- with the help of Mueller, Barr, and Pelosi.