27 July 2018

There stands President Trump. What Crime Has ANYONE Found?

Lavrentiy Beria, head of the NKVD under Josef Stalin (The Soviet Union's secret police and precursor to the infamous KGB), is often cited as having said "show me the man and I'll find you the crime."

We should be mindful of these words in regarding the broad authority granted Robert Mueller in his appointment as Special Counsel for the US Department of Justice, charged with investigating possible "collusion" between the campaign staffs of Donald Trump and Russia. We should be mindful for the simple reason that Deputy Attorney General Rod Rosenstein, at the time of Mueller's appointment, explicitly discounted any presumption that any criminal offense had even taken place:
“In my capacity as acting Attorney General, I determined that it is in the public interest for me to exercise my authority and appoint a Special Counsel to assume responsibility for this matter,” said Deputy Attorney General Rosenstein. “My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination. What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.”
Mueller's appointment was never even an assertion that a crime had been committed, much less that President Trump had committed one.  This alone made Mueller's appointment something of a legal oddity, for the federal statute governing the appointments of Special Counsel, 28 CFR § 600.1, specifically references criminal investigations:
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted....
Moreover, the investigation must be grounded in a specific crime (or at least the allegation of a crime), as 28 CFR § 600.4(a), requires some specificity as to the subject of investigation:
The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated....
Former US Attorney Andrew McCarthy highlighted these apparent defects of Mueller's appointment in a 2017 piece for the National Review, and I encourage those wanting a fuller understanding of the legal issues to read it.  I highlight these points merely to underscore the "Beria-esque" nature of Mueller's appointment: He was shown Donald Trump, and challenged to find the crime.

After a year (and an untold number of millions of dollars spent), the question now becomes: "What crime has Mueller found?"  What crime has anyone found? What credible accusation of criminal offense may now be laid at President Trump's feet?

The answer appears to be: none. There is no crime alleged. There is no accusation to be made.

Consider the tangible fruits of the Mueller probe to date:  
  • George Papadopoulos, a foreign policy advisor to the Trump campaign, pleaded guilty in October 2017 to making false statements to the FBI.
  • Michael Flynn, President Trump's one-time national security advisor, pleaded guilty in December of 2017 to making false statements to the FBI.
  • Rick Gates, business partner and lieutenant to Trump campaign manager Paul Manafort, plead guilty in February 2018 to one count of making false statements and one count of "conspiracy against the United States", both charges arising out of political consulting work Manafort and Gates provided to Ukrainian politicians several years ago--work wholly unrelated to either the Trump campaign or the 2016 election cycle as a whole.
  • Richard Pinedo, someone with no known affiliation to either Donald Trump or the Trump campaign, pled guilty to a charge of identity theft, in connection with a series of indictments Mueller announced involving a number of Russian nationals and Russian-based companies.
  • Alex van der Zwann, also with no known affiliation to Donald Trump or the Trump campaign, pled guilty to making false statements to the FBI.
These represent the sum total of prosecutorial "wins" Mueller has obtained as a result of his investigation.  Not one of these guilty pleas even hints at a larger crime or conspiracy having been perpetrated by President Trump or members of his campaign staff.  As regards President Trump, Mueller has failed to even allege any crime.

Mueller's investigation has also resulted in the following criminal indictments:
  • One-time Trump campaign manager Paul Manafort was indicted in October of 2017 on a number of charges, including money laundering and making false statements, all in relation to work done long before his involvement with Donald Trump's Presidential campaign.
  • Manafort associate Konstantin Kilimnik, was indicted in June of 2018 with obstruction of justice, purportedly by attempting to tamper with potential witnesses in the Manafort case.
  • In February of 2018, Mueller indicted 13 Russian nationals and three Russian entities on charges of conspiring to interfere with “US political and electoral processes, including the presidential election of 2016.” However, it must be noted that, in announcing the indictments, the Department of Justice explicitly excluded any allegation of any American--including Trump campaign operatives--being a willing party to the criminal acts alleged: "There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity. There is no allegation in the indictment that the charged conduct altered the outcome of the 2016 election. "
  • In July of 2018, Rod Rosenstein announced indictments of 12 Russian GRU intelligence agents on charges surrounding the alleged hack of the DNC servers in the spring and early summer of 2016.  As with the February indictments, American involvement was specifically discounted: "There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity or knew they were communicating with Russian intelligence officers."
27 individuals and three companies indicted, and none of the indictments even hint at a crime committed by Donald Trump or his campaign staffs.  Moreover, in announcing both sets of Russian indictments, the Department of Justice specifically rejected the possibility that the alleged activities influenced the outcome of the election, stating outright that "there is no allegation in the indictment that the charged conduct altered the vote count or changed the outcome of the 2016 election." Even if every single indictment results in a conviction, not a single one points to any criminal conduct by President Trump or his associates.  A year after Mueller was shown Donald Trump, he has failed to find any crime.

Nor has anyone else managed to find an actual crime.  Outside of the Mueller investigation, the most notable potential source of wrongdoing is the allegation that President Trump had an affair with porn star Stormy Daniels in 2006, and possibly another with Playboy model Karen McDougal. Because of payments made to Daniels and McDougal, arranged by Trump lawyer and "fixer" Michael Cohen, during the fall of 2016, there has been some intimation of campaign finance violations, but even that becomes highly problematic given Cohen's revelation of recorded conversations with Donald Trump discussing such payments.  Even if the allegations themselves are true, adultery is not a crime.

It is disingenuous and facile to say that Donald Trump "may have" committed crimes, either in relation to Russian involvement in the 2016 election or with regards to his supposed mistresses.  Strictly as an hypothetical, that is always true, not just of Donald Trump but of anyone.  However, crime is not an hypothetical.  Crime is factual. Accusations of crime require there be a date, a place, a time, and a law that has been broken. Accusations of crime require there be facts.  So far, there have been no facts that even identify a crime that Donald Trump could plausibly have committed.

Lawyer after lawyer has been shown Donald Trump, and lawyer after lawyer has failed to find a crime. Maybe there is a crime lurking just out of sight, and maybe it will be soon brought to light.  Maybe.

For now, the reality is there are no crimes that can be alleged against Donald Trump.

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