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Playing Criminal Law Bingo with the Mueller Indictments

Tracking all the charges Mueller has filed is like a walk through a white-collar crime index.

February 26, 2018

The investigations and scandals flowing out of Washington are so jarring that it leaves me and others grasping for metaphors to capture the moment. For instance, there’s a Twitter account that views White House turnover akin to the movie “Deadpool.” Comedian Seth Meyers sees the Mueller investigation as a live-action version of the board game Clue: “Wow, so it was the professor in the dining room with the e-mails.”

I’m thinking the right metaphor may now be Bingo. Allow me to explain.

About two weeks ago, I spoke on a panel at a conference called “Unrig the System” about problems facing our democracy. We discussed everything from changing redistricting to campaign finance reform, to ending the electoral college to restoring the right to vote for ex-offenders. My panel was dubbed, “From Russia, with Facebook: Foreign Influence in American Elections.”

Here’s approximately what I said : “The lies coming from D.C. are giving me a headache and breaking my heart. One lie I can’t stand is from the President’s lawyers, who have said that there is no crime that Special Counsel Mueller is investigating. Here are possible crimes that Mueller could be investigating: Bribery is a crime. Money Laundering is a crime. Violating the Foreign Corrupt Practices Act is a crime. Lying to the FBI is a crime. Lying to the Special Counsel is a crime. Making false statements to the SEC or FEC is a crime. Failing to register as a foreign agent is crime. Violating the Logan Act is a crime. Breaking into a computer system is a crime. Receipt of stolen goods is a crime. Soliciting money for an American presidential campaign from a foreign national is a crime. Accepting money or things of value for an American presidential campaign from a foreign national is a crime. Aiding and abetting the foregoing is a crime. Participating in a criminal conspiracy is a crime. Obstruction of justice is a crime. And last but not least, treason is a crime.”  When I said this, only the Gates and Manafort indictments and the Flynn and Papadopoulos guilty pleas existed. 

Consequently, I read the February 16th indictment from the Special Counsel with great interest to see if any of my predictions were correct. It was a little like playing a sober and horrifying form of criminal law Bingo.

Mueller indicted 13 Russians and 3 Russian entities for meddling in the 2016 federal election. Count One is conspiracy to defraud the United States, Count Two is conspiracy to commit wire fraud and bank fraud, and Counts Three through Eight are for aggravated identity theft.

Part of the indictment against these Russian individuals and entities noted that they were allegedly violating federal campaign finance laws which prohibit foreign nationals from spending in an American election and they “conspired to defraud the United States by impairing, obstructing, and defeating the lawful functions of the Federal Election Commission…” The indictment also notes possible violations of the Foreign Agents Registration Act which requires those acting on behalf of a foreign government to register with the Justice Department: “Defendants and their co-conspirators did not report their [election] expenditures to the Federal Election Commission, or register as foreign agents with the U.S. Department of Justice.”   

What the Mueller indictment showed me is that I think more like a campaign finance lawyer than an alleged criminal.  (For that, I’m mostly grateful).

What I mean is that I’ve spent a long time spilling a not inconsiderable amount of ink worrying that undisclosed but lawful “dark money” could be used to hide illegal foreign contributions.  Creating untraceable but legal dark money basically requires using a non-profit intermediary to hide the source of political funding including potentially illicit foreign funds. It is possible some of the 2016 election election spending may have gone this route  as suggested by McClatchy’s reporting on the FBI investigating possible Russian money going to the National Rifle Association.

But what the Mueller indictment alleged was the Russian actors were fully ignoring American election laws and a host of other regulations to get their messages before the voters.  For example, the indictment alleges that to buy Facebook ads, the conspirators used stolen identities of real Americans, which—say it all together now— is a crime. 

 The indictment also notes, “Some Defendants, posing as U.S. persons and without revealing their Russian association, communicated with unwitting individuals associated with the Trump campaign…” Of course, Mueller is investigating whether there was any witting participation by Americans in this scheme. By charging the Russians criminally, he can charge any American with conspiracy for willfully aiding them. There are no such charges, yet. I’ll keep my list of potential crimes handy. A few more crimes and I’ll sadly have B-I-N-G-O.

(Photo: AP)

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.