Crime and Puzzlement

Somebody's Twitter avi.

An unusual take from National Review's legal beagle Andrew C. McCarthy ("Robert Mueller's Plan") on the Mueller investigation: that they're not building up a criminal case, because

No prosecutor builds a case the way Mueller is going about it. What prosecutor says, “Here’s our witness line-up: Michael Flynn, George Papadopoulos, Alex van der Zwaan, Rick Gates, Paul Manafort, Michael Cohen. And what is it that they have in common, ladies and gentlemen of the jury? Bingo! They’re all convicted liars.”?

This proves that the litigation documents Mueller files from time to time, such as indictments and statements of guilt, are not addressed to a jury, which shows McCarthy that there is no crime, which demonstrates that the special counsel's behavior is very reprehensible:

There are many wrongs that are not crimes, activities that are immoral, mendacious, unseemly. If we are talking about cosmic justice, all these wrongs should be made right. But prosecutors do not operate in a cosmic-justice system. They are in the criminal-justice system. The only wrongs they are authorized to address — the only wrongs it is appropriate for them to address — are crimes.

This is why, from the beginning of the Trump-Russia investigation, and certainly since Mueller’s appointment on May 17, 2017, we have stressed that the probe is a counterintelligence investigation, not a criminal investigation. The idea was not to dizzy you with Justice Department esoterica. The point is that we don’t want prosecutors involved until it has been established that a crime was probably committed, warranting use of their awesome, intimidating investigative powers.

I think this must be the first time The National Review has every suggested that there's something vaguely unsavory or not-cricket about a counterintelligence investigation. There's no doubt that it's a counterintelligence investigation, as the deputy attorney general set its terms, to investigate "the Russian government's efforts to interfere with the 2016 presidential election,... including... any link and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump". It doesn't say that they can only look at illegal coordination and must avoid coordination that is merely immoral, mendacious, or unseemly. It says they must find out what happened, which is why Mueller is called a special counsel, not a special prosecutor.

It was always clear that Mueller's squad should be gathering evidence about some crimes everybody knew about, notably the theft of confidential documents from John Podesta and from the Democratic National Committee, over which 12 GRU officers (and possibly Julian Assange) have been indicted by the inquiry (with Republican operatives Roger Stone, Jerome Corsi, and Rudolf Giuliani conceivably to follow), and some crimes we hardly fully appreciated at the time, like the complex of identity theft and conspiracy carried out by staff of the Internet Research Agency in St. Petersburg who carried out a propaganda operation commandeering Facebook and other social media, for which the Mueller team has indicted another 13 individuals and three companies (in which I expect we may end up learning about the involvement of British and Israeli companies and American individuals who worked with those).

You also had to be deliberately stupid not to notice that individuals in the Trump campaign might be involved in these Russian crimes, given that the crimes were plainly focused, at least from the end of July 2016, on getting Trump elected, and Trump himself kept going out of his way to please the Russian government, and insistently defied the US intelligence community to express his doubt that the Russians had done it (the "400-pound guy on a bed" hypothesis), and then there was the parade of Trump people denying they had ever interacted with a Russian who turned out to be lying. These people who benefited from the Putin government's activities, did things that could benefit the Putin government, and hid their connections with Russian agents, looked guilty of something. They didn't express the pious hope that somebody would be punished for these crimes, but denied in the face of overwhelming evidence that any crimes had taken place. And some of them—starting with Flynn and Papadopoulos—definitely were guilty of perjury.

The lack of a crime means the “accomplices” are not really accomplices. To take a couple of stark examples, collusion pours off every page of the narrative statements Mueller submitted to the courts in the cases of Papadopoulos and Cohen. They consult with Russian operatives, plan meetings for themselves and Trump with Russian officials, and — in Papadopoulos’s case — discuss the possibility of obtaining campaign dirt against Hillary Clinton from Russians. Yet, though these activities are the laser focus of his investigation, Mueller did not charge them as crimes because they are not crimes. Papadopoulos, Cohen, and the rest got jammed up, not for what they did, but for lying about what they did.

And then the central event of the story, Junior's cheerful acceptance of the Russian offer of stolen documents "as part of Russia and its government's support for the Trump campaign" (whoever drafted that expression for Goldstone might as well have been working to incriminate Junior, as if they were planning to use it as kompromat), is unquestionably a crime, though one they might decide not to prosecute, depending on where it went, but where it went looks like everything that subsequently happened, Russia's pro-Trump activity, Trump's pro-Russia activity, and all that lying. Who knows what Mueller knows about that? Not Andrew McCarthy, who sticks to dismissing it as garden-variety oppo research. But he doesn't know a thing about the charges that haven't yet been filed.

Note how McCarthy uses the term "accomplice", which doesn't describe the relationship of any American suspect to any Russian suspect, instead of the accurate "co-conspirator". Though Page and Papadopoulos, and I believe Manafort, are best described as Russian agents (hapless and ineffective in the case of the first two) rather than Trump agents. What Cohen did with Stormy Daniels and Karen McDougal is certainly a crime, though not a Russia-related one, of campaign finance violation, in which Donald Trump is an unindicted co-conspirator. And what he and Sater did with the negotiations for a Moscow hotel-and-condo complex would be a crime if somebody was using it in the manner of a bribe to somebody else; if Putin was talking about rewarding Trump for his contribution to weakening Clinton, for instance, before he realized that Trump could actually win the election, and decided to change his strategy accordingly (I don't think we need to take seriously the purported offer of a $50-million penthouse to Putin as a bribe—I think he's much more expensive than that). McCarthy too is preemptively denying that any crime took place, but we know he's wrong about that.

Politics is a seamy business. Pols want to think of themselves as public servants, but they spend lots of time with their hands out, either pleading for money or collecting information that might compromise an opponent. Successful politics requires horse-trading and compromise, so pols are forever explaining how they could actually be against something they voted for. A lot of this is embarrassing stuff. Consequently, when people in and around politics get caught practicing politics, they often lie about what they’ve done.

Politics is not a crime, of course. Consequently, if you criminalize politics — if you turn a prosecutor loose to investigate political campaign activities — you are apt to find unsavory conduct that is not criminal but that some people will lie about.

I doubt prosecutors ever "build their case" like a jazz solo, on their feet, so the jury can watch it developing, still less 30-some distinct prosecutions simultaneously, as we have here. I have my own idea about the sequence in which Mueller's charges are being brought out, in agreement with Emptywheel's theory that the release of documents is, in fact, a kind of draft of the final special counsel's report, as a way of preempting attacks on him before the report itself is issued: that in the first place it's addressed to prosecutors, not jury members (we don't know what Mueller's grand juries are hearing, though those who follow it closely enough know who the witnesses are, not all of whom have been charged with anything), who will be able to reconstruct the story in a jury-friendly way when the time comes, especially if Trump succeeds in hounding Mueller out of the job. How it's received by the general public, or potential jury members in some future trial, or dimestore lawyers like Andrew McCarthy, is of little significance at this stage, though it feels awfully important to us in the courts of Left and Right Blogistan.

Equally important, or even more, is who these documents are not addressed to: the lawyers of the highest-value American suspects, with (I guess) Kushner, Junior, and the Emperor himself at the top. There's no reason to think the charges to which so many defendants (33 as of last week, and, yes, they're mostly perjury and have little if any direct implication for the 2016 campaign) have pleaded guilty are the only crimes they've actually done. It's extremely important to the investigation not to reveal to those suspects how much they know, though it's getting easier and easier to guess from the peanut gallery, until they feel the collection of evidence is complete. You can learn that from the same TV shows Andrew McCarthy gets his theories from. And they've done a pretty good job, helped a lot no doubt by Trump's habit of lying to his own people.

Still the story is finally beginning to emerge in a way that some journalists are finally allowing themselves to get it. What McCarthy's guessing, that there's nothing at all but flame-free smoke and mirrors, based on nonsense about juries and willful ignoring of the evidence, isn't a very safe bet at all.