Mueller’s Mountain Or Molehill? Prosecutors Mum on First Charges In Russian Investigation

Another_molehill (1)1600px-Aiguille_du_Dru_3-1Last night, the media was thrown into a frenzy with news that special counsel Robert Mueller has secured the first charges in his investigation into Russian election interference.  Despite the fact that the name or names of those indicted have not been released and the specific charges were not disclosed, the report was heralded as a breakthrough moment in the Russian investigation. CNN contributor David Gergen stated “Well, it certainly looks like the dam is starting to break now.”  It could be and then again it might not be.  Again, the breathless desire among some commentators is out-stripping the available information.  For months, many of us have been saying that it was extremely unlikely that Mueller would assemble this huge prosecutorial team and spend millions without charging someone on something.  The core question is whether he is going to move on the two primary allegations in the Russian investigation — collusion and obstruction — that might implicate Trump or his family.  In other words, we may have to wait for the arrest or surrender to know if Mueller has unveiled a mountain or a molehill.

If Mueller were to start with a core and major charge against a high-ranking official, it would be a seismic event. My expectations are low.  Even if Mueller expects to charge Trump or his inner circle, he would not likely start with those charges.  For my purposes, the most important thing is to take a look at the indictment and the underlying facts asserted by the prosecutors.  The charge might be minor but the underlying factual context could show a far more serious foundation laid by prosecutors on other crimes or individuals.

As I have previously discussed, Michael Flynn and Paul Manafort are the most obvious targets of charges.  However, the violations raised against them are more collateral to the main allegations.  They include violations of the Foreign Agent Registration Act (FARA).  Only a handful of such cases have been prosecuted since the revision of the Act and these violations are uniformly address administratively. However, that does not bar a prosecution.

If the first charges are under FARA, it would be a relatively weak first showing by the team and would clearly be designed to add pressure for the target to flip as a cooperative witness.  To me, it would be a rather anemic start in prosecuting for the regulatory version of jaywalking.  The reason that FARA is rarely prosecuted is that most prosecutors do not view it as a good use of their time or public money.

Nevertheless, prosecutors will often target low-lying fruit in building a case toward high targets.  The problem for Mueller is that the challenges in his investigation are not simply factual but legal.  The theories that has been tossed around often involve some novel (and in my view unsustainable) interpretations.  It would be far better for Mueller to build a case toward a more recognized and conventional set of charges rather than adopting massive expansions of election law terms.

We have also discussed the always present threat of an 18 U.S.C. 1001 charge for lying to investigators.  Once again, it is a collateral charge and proves not the merits of the core allegations but the evasion of a target. It is an easy charge to bring and it is a favorite of prosecutors, particularly when they cannot establish charges on the core allegations.  It is also a charge often used to pressure witnesses.

Manafort has long been my view of the “designated defendant.”  Manafort has a rather free-wheeling reputation (to put it in the best light) in Washington as someone engaged in a wide range of financial dealings.  He is clearly being investigated for banking and money laundering allegations that are removed from the collusion and obstruction matters.  It is another example of the old adage “one day on the cover of Time, next day doing time.” Of all the people who would have least appreciated a spotlight on all of his financial dealing, Manafort would be near the top.

Even collateral charges like FARA and 1001 would mean that prosecutions would likely go into 2018 if not 2019.

The specifics on the charges will be telling in a couple of respects.  One will be how close the targets are to Trump. Another will be the how far Mueller if willing to go in bending and twisting the existing law.  Many have advocated extreme interpretations of obstruction and election laws that would present problematic cases for appeal. However, Mueller selected a couple senior prosecutors with high controversial records of being reversed in major cases where they twisted federal law or cases beyond recognition.

So, while not to be a buzz kill, we might just want to wait for actual charges before hyperventilating over the latest development in this controversy.  Moreover, Mueller could start with minor or modest charges that fact singling a lack of evidence of more serious crimes.  While we could gain an insight from the indictment on what he has, we might not.

444 thoughts on “Mueller’s Mountain Or Molehill? Prosecutors Mum on First Charges In Russian Investigation

  1. Not too technical, I think the whole thing should be dumped, and end almost a year of a President’s term! Somehow the parties get too wrapped up in destroying something. Donna Brazile’s book (due out next Tuesday) is going to shake up the Democrats. They lost an election, due in large part to the candidate and the Clinton “takeover” (not my words). So, let’s start letting a President be President. There are no “high crimes and misdemeanors” and impeachment would be a waste of time, as it was for Clinton. 535 people cost the American taxpayer a great deal of money. We deserve their time being spent on more important things. I shudder to think how much is being thrown into a never-ending investigation. There are more important things!

  2. MOSCOW MUELLER: WHAT THE INDICTMENTS AND PLEA AGREEMENTS MEAN FOR DONALD TRUMP

    Jeremy Scahill
    November 3 2017, 7:26 a.m.

    https://theintercept.com/2017/11/03/robert-mueller-trump-campaign-russia-manafort-papadopoulos/

    So that is what a lot of this boils down to: Was there criminal conduct or simply what many people seem to believe should be criminal conduct but isn’t under the law?

    There will almost certainly be more indictments coming down the pike. And other cooperating witnesses. We know there are some sealed indictments filed in sequential order with the Manafort and Papadopolous filings. It will be interesting to see what they say and who the defendants are. Remember, we have Gen. Mike Flynn, Trump’s short-lived national security adviser, floating around. He definitely knows where some bodies are buried. Is he cooperating? Wearing a wire? Or is he going to be charged with a crime? Same questions apply to his son, Mike Flynn Jr.

    Lying to the FBI and being a corrupt businessman are not what this investigation is really about. It is a probe into possible links between the Trump camp and Russia in an effort to influence the election. The government may never prove there was criminal activity by Trump’s people related to this election, but rather that they engaged in activity many Americans find offensive, immoral, unpatriotic. But to prove it is criminal is a totally different beast.

    Many investigations into a major issue often produce indictments that have little to no relation to the bigger probe. They were crimes uncovered during the course of the probe or, in the case of lying, as a result of the investigation. Catching people in lies can lead to bigger things, and that is why Papadopolous ultimately matters. What passes as fact in the court of public opinion doesn’t necessarily hold up in the court of law. And none of us can simply will something to be true. That’s what the courts are supposed to do, including in cases involving cartoonish villains like Donald Trump. Now maybe this will lead to indictments showing a criminal conspiracy between Trump’s campaign and Russia. Or maybe it will simply uncover non-criminal activities that are offensive to a lot of Americans. Time and evidence will tell.

    This week on Intercepted, we spoke to two people closely monitoring these developments. Ken White is a criminal defense attorney in Los Angeles and a former assistant U.S. attorney. He is the main force behind the blog, Popehat. And Charlie Savage is an investigative reporter at The New York Times. He is the author of two great books, “Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy” about the Bush era and “Power Wars” about the Obama administration’s wars.

    -from Jeremy Scahill at “The Intercept”

  3. “SENATE JUDICIARY COMMITTEE CHAIR CHUCK GRASSLEY HAS SPENT THE WEEK COWERING FROM HIS PARTY’S LEGAL PROBLEMS”

    https://www.emptywheel.net/2017/11/02/senate-judiciary-committee-chair-chuck-grassley-has-spent-the-week-cowering-from-his-partys-legal-problems/

    “Senate Judiciary Chairman Chuck Grassley said Thursday he was still learning all the details about the Papadopoulos matter.

    “Asked if Sessions should amend his testimony before his committee, Grassley told CNN: “I’m looking into it.”

    “I’ve long defended Grassley’s legitimate questions about the investigation — most notably questions about the Steele dossier. But all week the senior Republican overseer of the Justice Department has been cowering from the clear implications of this scandal. Perhaps it’s because Grassley has a duty, here, to ensure the integrity of a department led by a serial perjurer, he has instead been hiding and dodging.”

      • “Her account was the creation of employees at the Internet Research Agency, or the Russian government-funded “troll farm,” in St. Petersburg.” -Daily Beast article, below

        https://www.thedailybeast.com/jenna-abrams-russias-clown-troll-princess-duped-the-mainstream-media-and-the-world

        “Congressional investigators working with social-media companies have since confirmed that Abrams wasn’t who she said she was.

        “Her account was the creation of employees at the Internet Research Agency, or the Russian government-funded “troll farm,” in St. Petersburg.”

        “Jenna Abrams, the freewheeling American blogger who believed in a return to segregation and said that many of America’s problems stemmed from PC culture run amok, did not exist.”

        ===========

        Allan (and some of the others who post, here) would fit right in at one of these troll farms. And I wouldn’t be a bit surprised to learn that the U.S. has a counterpart troll farm.

          • Your forgot to add: “Oh…, and enigma lied.”

            (Of course he didn’t/hasn’t, but that won’t keep you from shouting it to the rooftops. That’s just what you do.)

            • Enigma did lie (I am using his standards) and you do sound like a chicken with its head cut off. Take note, a chicken doesn’t sound too good with its head on, but that is for another day.

          • Ken – since you rarely move the conversation forward, I consider you a troll. And if JT made me troll monitor, you would be in detention most days.

            • And some people would consider you a troll, Paul. (And thankfully, JT will likely never make you “troll monitor.”) You’re the guy who said sometimes you find upwards of 60 emails in your inbox…and you’re not certain “who’s been handled.”

              Sounds like a good troll to me.

                • Again:

                  Paul is the guy who said he sometimes finds upwards of 60 emails in his inbox…and he’s not certain “who’s been handled.”

                  • anonymous – I join all of Turley’s threads, so I get a lot of emails. I set up a separate email folder for those emails. To deal with those emails, I start at the bottom of the list and work up (oldest to newest). Therefore, if I have been away from the computer for awhile and the messages have built up, I sometimes do not know if someone else has already answered the question (handled it). As a matter of fact, this morning I responded to a comment and then two emails later saw that someone else had already done it. That is what I was referring to.

                    Is it somehow wrong to do this?

                    • “I sometimes do not know if someone else has already answered the question (handled it).”

                      Sounds like a job to me. (It’s a blog. So a question doesn’t get answered. Big deal.)

                      For those who might have missed the article on the Russian troll farm:

                      “Her account was the creation of employees at the Internet Research Agency, or the Russian government-funded “troll farm,” in St. Petersburg.” -Daily Beast article, below

                      https://www.thedailybeast.com/jenna-abrams-russias-clown-troll-princess-duped-the-mainstream-media-and-the-world

                      “Congressional investigators working with social-media companies have since confirmed that Abrams wasn’t who she said she was.

                      “Her account was the creation of employees at the Internet Research Agency, or the Russian government-funded “troll farm,” in St. Petersburg.”

                      “Jenna Abrams, the freewheeling American blogger who believed in a return to segregation and said that many of America’s problems stemmed from PC culture run amok, did not exist.”

                    • One should critically read this sentence in the dailybeast: “But Abrams got very real attention from almost any national news outlet you can think of, according to a Daily Beast analysis of her online footprint.”

                      It demonstrates that the national news media isn’t paying attention and isn’t investigating. It writes what sells copy.

                    • anonymous – if someone were to offer me money to blog on here I would not be opposed to that, but it has not happened. 😉 I just want both political parties to know that as an Independent I can be bought. For the right price, I will play either side or no side. Right now I am comfortable being a contrarian. It suits me well. I can like or dislike whomever I like, not who the party tells me to dislike. I can support what I like or not, it is my call, not the party.

                      How about you, you are on here a lot? Who is paying you?

                    • ” I just want both political parties to know that as an Independent I can be bought. ”

                      Paul, Hillary is your to go to person for political payoffs. Learn from her and skip the small stuff. Go directly to the millions. I’m not looking for money. I’m just looking.

                    • “I sometimes do not know if someone else has already answered the question (handled it). As a matter of fact, this morning I responded to a comment and then two emails later saw that someone else had already done it. That is what I was referring to.

                      “Is it somehow wrong to do this?” -Paul

                      Not “wrong”, Paul, but some might say that it’s a little nutty. Unless one is getting paid.

                    • anonymous – deciding whether or not to comment on a previous comment is a private matter that has nothing to do with getting paid or nuttiness. Maybe you are projecting?

  4. “JEFF SESSIONS UNFORGETS THE DISCUSSIONS WITH RUSSIANS HE TWICE SWORE HE DIDN’T KNOW ABOUT”

    https://www.emptywheel.net/2017/11/01/jeff-sessions-unforgets-the-discussions-with-russians-he-twice-swore-didnt-happen/

    “If the first sourcing here — one of the nine men in the room — didn’t indicate these leaks came from Sessions’ orbit, the second one — a source who discussed Sessions’ role — makes it clear.

    “Let’s pretend for the moment that this telling is accurate, and that then Senator Sessions recognized the legal and political risk of cozying up to Vladimir Putin (and not just another attempt to telegraph what someone has testified or plans to testify to the grand jury).

    “If that’s correct, that means Sessions has twice lied under oath about knowing about efforts to reach out to the Russians. And he did so knowing that the President was sort of cool with the idea.

    “That is, it would suggest Sessions’ lies, given under oath, were designed to protect the President.”

    • Instead of calling itself the Empty Wheel it should call itself the Empty Head for those with empty heads. …And guess who is bringing this void of intellectual activity to the forefront? Anonymous. Run for cover or suffer her babbling.

      Without discussing the rest of this tripe take note of the author’s statement: “And he did so knowing that the President was sort of cool with the idea.”

      Is the author telepathic? Does the author read minds? You guys must rely on fortune tellers for advice in how to live your lives because a simple phrase like the above doesn’t activate any of your brain cells and tell you the writer isn’t an honest broker. Anonymous, next time you go to a fortune teller have the fortune teller read one of your hoofs.

    • anonymous – it is just a guess, but the “dead horse” is actually alive and we are way upstream, so be careful drinking the water.

    • Apparently, your analogy refers to dying or dead intellect, so yes, we are beating 3 dead horses whose bodies are very much alive but the brains require rejuvenation. We will try and beat that intellect into you, but I am afraid it is a lost cause in your case.

      • Swarthmoremom, it should be shocking. But for some reason it’s not. Desensitization. I think that’s what Ivan Pavlov called it.

        BTW, how did the Russian bots know ahead of time that the Grand Jury had returned indictments? Why are we always the last to know? Wait. Don’t answer that. Last I heard we’re not supposed to know until it’s time for us to be told.

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