Max Kennerly @MaxKennerly Trial lawyer by day. Cookie monster by night. Apr. 19, 2019 1 min read

Some brief thoughts tangential to the Mueller investigation: our laws relating to white collar political crime are awful, and are totally different from our laws relating to everything else. /1

Like the Foreign Agents Registration Act. A person can engage in political activities "directly or indirectly supervised, directed, controlled, financed, or subsidized" by a "foreign principal" and not register with DOJ, so long as it's not "in whole or in major part." /2

Contrast that "in whole or in major part" limitation -- which has to be proven beyond a reasonable doubt -- with civil forfeiture laws routinely applied against the poor, where property can be seized from people not even accused of a crime. /3  https://www.nbcnews.com/think/opinion/police-abused-civil-forfeiture-laws-so-long-supreme-court-stepped-ncna974086 

Or contrast it with federal drug laws, where any attempt or conspiracy hits you with the same penalties as actually committing the crime. No need to prove you actually violated the law, much less that your activities were "in whole or in major part" drug dealing. /4

Then consider our campaign finance laws, where ignorance of the law is a defense. It's actually better than a defense: the prosecutor has to prove "the defendant's knowledge of the law." Contrast that with, well, virtually every other law. /5

Mueller didn't even bother with the federal bribery statute, 18 USC § 201, perhaps rightly not: the statute was eviscerated by the Supreme Court, so conviction pretty much requires a confession or an agreement in writing to trade official acts for $. /6  https://www.theatlantic.com/politics/archive/2017/10/menendez-mcdonnell-supreme-court/543354/ 

Then there's Citizens United, the Supreme Court decision that, as Obama said at the time, "open[ed] the floodgates for special interests -- including foreign corporations." We don't even know how widespread this problem is, and can't given current law. /7  https://www.vox.com/policy-and-politics/2018/10/25/18016212/russian-meddling-dark-money-influence-2018-midterm-elections-citizens-united 

Thus, this hijacking was made possible in part because the GOP, Wall Street, and corporate America spent years creating a Swiss-cheese legal framework in which even trivial amounts of complexity or deniability renders political corruption lawful. /end

A follow-up example of dark money. Republicans in Congress and on the Supreme Court made it so difficult to regulate 501(c)(4) non-profits that they are now effectively unregulated. Slush funds and purely political "non-profits" operate freely.


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