Teri Kanefield
+ Your AuthorsArchive @Teri_Kanefield Author, lawyer (UC Berkeley) My threads are here: terikanefield-blog.com/ NBC News Opinion contributor Impeachment notes: impeachment-trump.com/ Apr. 20, 2019 3 min read

(Thread) Reading the Mueller Report, Part V

All those links—but no “coordination.” How can that be?

Part I begins here:

Mueller’s task was to determine whether there were “links and/or coordination” between the Trump Campaign and Russia.

1/ Mueller found links galore.

But it turns out that finding “coordination” — or, to use the legal term, “conspiracy”— proved more difficult.

2/ Special Counsel considered whether contacts between Trump Campaign officials and Russia-linked individuals triggered liability for conspiracy, either under statutes that have their own conspiracy language or under 18 U.S.C. § 371.

3/ “In evaluating whether evidence about collective action of multiple individuals constituted a crime,” Special Counsel (SC) wrote, “we applied the framework of conspiracy law” as defined in federal law.

It’s IRAC time again. What’s that? See👇

4/ Issue: Did members of the Trump campaign coordinate with Russians to sway the election?

The elements of general conspiracy are:
(1) an agreement between 2 or more persons
(2) to commit a crime, and
(3) an act in furtherance of the crime

5/ The federal conspiracy statute, 18 U.S. Code § 371, needs two or more people “conspire either to commit any offense against the U.S. or to defraud the U.S. or any agency, and one commits an act in furtherance of that conspiracy.”
(basically the same)

6/ Special counsel understood that the agreement could be either tacit or express.

According to special counsel, this “requires more than the two parties taking actions that were informed by or responsive to the other's actions or interests.”

7/ The investigation established that the Russian government perceived it would benefit from a Trump presidency.

[The Report makes clear that the phrase “the investigation established” means they found enough admissible evidence to establish the fact beyond a reasonable doubt.]

8/ The investigation also established that the Russian government wanted Trump to win, and tried to help Trump win.

Finally the investigation established that the Trump Campaign expected it would "benefit electorally from information stolen and released through Russian efforts."

9/ However, the investigation didn't establish that members of the Trump Campaign actually entered into an agreement, either express or implied.

The key to Mueller’s analysis is in the word “agreement,” from the first element.

“agreement” is well understood in the law.

10/ Here’s how I understand Mueller’s reasoning:

Trump always wanted a Russia-USA alliance because he loves Russia and thinks he’ll get rich.

Putin wanted Trump to win because he understands that Trump wants a Russia-USA alliance.

11/ To analogize:
If I’m going to do X, regardless of what you do.
And if you’re going to do Y, regardless of what I do (and if we know about each other's actions) there isn’t an agreement or conspiracy to do X-Y together.

12/ Let's be clear about this:

The president of the United States stood by and allowed a foreign government to attack our country.

But the evidence didn't establish that his behavior fit the elements of "conspiracy."

Well guess what?

What he did was worse.

13/ Maybe there's a good reason Trump loved the word ‘collusion’ so much and tried so hard to frame the entire investigation as a question of whether he “colluded.”

Maybe he knew that nobody could stick the elements of "conspiracy" to him.

14/ Here’s Snyder explaining why “collusion” was the wrong word because, basically, a tool can’t collude:  https://www.youtube.com/watch?v=ZJe4NlOjAJo 

I’ve posted this before because it seems to me Snyder nailed the “conspiracy” issue. (He’s also a world-class expert in Russian history & politics)

15/ Members of the Trump Campaign dealt with members of the IRA (see👇)
but the investigation didn't identify evidence that any of them knew they were dealing with Russians.

You can’t be convicted of conspiring if you don’t know you are conspiring.

You can follow @Teri_Kanefield.


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