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.
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.