Aug 23, 2018
The federal defraud statute 18 USC § 371 will be used by Mueller to identify and describe the crime of Trump-Russia collusion. An example: Wikileaks, hacked DNC emails, and the Randy Credico-Roger Stone correspondence.
[Originally published on Twitter May 28, 2018]
(THREAD — 53 tweets) For months, we have heard from the anti-Mueller, pro-Trump forces that there was no collusion, and even if there was, collusion isn’t a crime.
1/ Pro-Mueller forces have typically responded by saying that collusion in any case is impeachable as a *political* matter, and sometimes by pointing to at least one possible act of “collusion” that *would* be criminal
2/ — participating in the actual hacking of the DNC and Podesta computers. (That would be a violation of the federal Computer Fraud and Abuse Act.)
3/ But an article in Lawfare by Emma Kohse and Benjamin Wittes that was published in March and that I had somehow missed, shows that Mueller is after something much deeper and wide-ranging,
4/ and also much more threatening to Trump and his associates: A CONSPIRACY TO DEFRAUD THE UNITED STATES.
5/ The federal statute in question is 18 USC § 371. It has been part of the federal code since the early 20th century (even earlier in a less developed and well-articulated form). It reads as follows:
6/ USC § 371, which was was originally used to prosecute white collar crimes (especially tax evasion cases), is part of the “anti-conspiracy” legislation of the federal government more generally.
7/ One of the principal purposes of such legislation is to expose crime bosses — who try to avoid jail by using their subordinates to violate the law, keeping their own hands clean — to criminal liability.
8/ The federal government wanted to make conspiring in this way illegal — hence statutes like USC § 371. Under this statute, even if the crime boss himself does not do anything that is illegal, conspiring (“colluding”) with someone else to commit a crime is still unlawful.
9/ It is important to note that the “defraud” section of USC § 371 is separate from the “offense” section of the statute.
10/ The statute says “OR,” meaning that an can be fraudulent (and therefore criminal) even if no actual violation of law (“offense”) has occurred — and there is a penalty of up to 5 years in prison and a fine for defrauding the government even if there is no associated offense.
11/ How the courts have interpreted “fraud” is obviously important here.
12/ This is how the term is defined in one of the controlling court precedents. In Hass v. Henkel, 216 U.S. 462 (1910), the Court stated: tinyurl.com/ycv4y6ds
13/ Note that this is very similar to statutes and regulations regarding obstruction of justice (OOJ).
14/ In fact, conspiracy to defraud (USC § 371) is categorized by the Congressional Research Service as one of the six kinds of laws governing obstruction of justice (defined quite broadly as “the impediment of governmental activities”).
15/ The CRS report says further: tinyurl.com/y9u6k3u5
16/ CRS p. 29:
16/ CRS p. 29:
17/ We’ve heard it said, in the context of the Mueller probe, that there can’t be obstruction of justice without an underlying offense. This is false generally, and it is false more specifically of the defraud statute.
18/ The similarity — in fact close connection — of the defraud statute and obstruction of justice generally (particularly in the judicial and law enforcement context) is interesting,
19/ because we know that Mueller is investigating whether Trump and Trump campaign associates have obstructed his own investigation.
20/ That is on all fours with the “defraud” statute of USC § 371.
21/ One concerns what Trump and his associates might have done during the campaign —
22/ (like impairing, obstructing or defeating the lawful functions [of the FEC and the FBI to defend the US election against any interference by a foreign power] by “deceit, craft or trickery, or at least by means that are dishonest”).
23/ The latter concerns what Trump and members of his campaign team might have done to obstruct the investigation of the campaign after the election.
24/ Thus, the difference between the two is more temporal than substantive.
25/ It is the duty of the FEC, the FBI, and the nation’s NatSec agencies to protect the US elections process from “any conspiracy for the purpose of impairing, obstructing or defeating that purpose” by “deceit, craft or trickery, or at least by means that are dishonest.”
26/ Were Trump and his campaign guilty of a conspiracy to defraud the United States in this sense?
27/ We can’t say for sure what Mueller will eventually report, but at this point, all the evidence indicates that Trump and Team Trump *are* guilty of a “conspiracy to defraud the United States.”
28/ If they hadn’t defrauded the United States in the sense of 18 USC § 371, why have they been caught in so many lies about what they did during the campaign? What are they hiding?
29/ Even if there is no signed agreement or smoking gun email to be uncovered by Team Mueller, there was clearly intent (think of the Don Jr email in the Trump Tower episode) and lots of deceit.
30/ So we have been misled — and probably Trump, too! — by an unconsidered use of the term “collusion” into thinking that MUELLER is looking for a contract in an email or text message like the following (which would be an “offense”):
30/ It doesn’t work that way, and I think the public suspects that, and probably knows that something else is involved — something much more devious, insidious, and complicated, but equally destructive of American institutions and the democratic process.
31/ Fortunately, there are statutes that make a deceitful *conspiracy* criminal, and there are legal cases in which such statutes have been applied specifically to election fraud.
32/ To see how the “defraud” part of the statute could be brought to bear on Trump’s associates and members of his campaign team, consider Roger Stone.
33/ We have in the public record the following email of Stone’s
:
34/ Alan Dershowitz and others have argued, correctly, that *publishing* the hacked emails by any *publisher* was protected by the First Amendment.
35/ However, while Assange might arguably have been a publisher in the matter, Stone clearly was not. He was a political actor, and therefore subject to US election law.
36/ And as a political operative closely connected with the Trump campaign (though not formally a member of the campaign staff at the time),
37/ Stone was clearly seeking something that would have “material value” for the campaign (something that matters in US election law), and wanted to obtain it secretly and deceitfully.
38/ (Stone’s email was sent to Randy Credico. It isn’t clear who, if anyone, was “cleared” to see such emails beyond Credico, but in any case, it certainly wasn’t the voting public, and it certainly wasn’t the FEC, the FBI or US NatSec agencies!)
39/ Furthermore, Stone has given conflicting and contradictory accounts — then and now — of his relationship with Assange, who stated at the time that he wanted to interfere in the election (in favor of Clinton).
40/ In other words, Stone was acting conspiratorially (deceitfully) with the intent of obtaining materials that would be of material value to the Trump campaign;
41/ and if he had obtained them to distribute them conspiratorially (the voting public and the FEC certainly weren’t supposed to know what had happened).
42/ All this falls within the domain of “defraud” cases.
(For a slightly more developed example, see the discussion about Peter Smith and MIchael Flynn in a Foreign Policy article by Susan Hennessey and Benjamin Wittes.)
43/ Mueller’s investigation of Russian interference in the election and the possible ties between Russia and the Trump campaign during the election involves ELECTION fraud,
44/ and in Mueller’s hands is similar in many important respects to a RICO-type investigation. tinyurl.com/osqj7hy
45/ The Racketeer Influenced and Corrupt Organizations Act (RICO) applies to operations like protection rackets and corrupt, mobbed up *organizations*.
46/ Think of Trump and Team Trump collectively as the crime boss under US law, and Putin and the Kremlin as the co-conspirator that engages in the unlawful action or “offense.” While inaccurate in many respects, this might help to put what we are talking about in perspective.
47/ A former F.B.I. senior official has even put it this way:
48/ I only beg to differ about one thing. I think we’ve reached the point where we do have a good idea where Mueller is going to end up — if he hasn’t gotten there already.
49/ The more I think about 18 USC § 371 and the fact that it is clearly being used by Mueller as the legal theory at the root of his investigation, the more convinced I am that Trump is going to be impeached
50/ and that a lot of other people in the campaign are going to be going to jail — for up to 5 years in prison and a $250,000 fine, per 18 USC § 371, *if nothing else.*
It’s only a matter of time.
PS 1/ Any finding by Mueller in his report to Rod Rosenstein that Trump and members of his campaign were engaged in a conspiracy to defraud the United States as defined in 18 USC § 371 would definitely call into question the legitimacy of his presidency.
PS 2/ On that note, let me end with this graphic by Occupy Democrats:
CRS p. 29 excerpt corrected:
