By JOHN
HINDERAKER I POWERLINE
I wrote here about
Robert Mueller’s indictment of 13 Russian citizens and three Russian companies.
The indictment is an odd one, as I pointed out:
Its very first paragraph recites that it is
against the law for foreign nationals to spend money to influence US elections,
or for agents of foreign countries to engage in political activities without
registering. But no one is charged with these crimes. Instead, the indictment
is devoted mostly to charging a “conspiracy to defraud the United States.”
Normally, that would refer to defrauding the U.S. out of, say, $10,000 in
Medicare benefits. Its application to the 2016 election seems dubious. Beyond
that, the indictment charges relatively minor offenses: bank fraud (opening
accounts in false names) and identity theft.
I have continued to puzzle over why Mueller chose not to
indict the Russians for their most obvious offenses. I think the answer lies
in this
column by Robert Barnes, titled “Does Mueller Indictment Mean Clinton
Campaign Can Be Indicted for Chris Steele?”
Barnes’s column is off the mark, I think, because it is
written as though Mueller did indict the Russians for improper
meddling in a U.S. election:
Special Counsel Robert Mueller indicted
foreign citizens for trying to influence the American public about an election
because those citizens did not register as a foreign agent nor record their
financial expenditures to the Federal Elections Commission. By that theory,
when will Mueller indict Christopher Steele, FusionGPS, PerkinsCoie, the DNC
and the Clinton Campaign?
Actually, Mueller indicted the Russians only for
violating 18 U.S.C. §371 (conspiracy to defraud the United States), §§ 1343 and
1344 (wire fraud and bank fraud), and §1082(A) (identity theft). He did not indict
them for violating 52 U.S.C. §30121 (contributions and donations by foreign
nationals). The question is, why not? Here, I think Barnes supplies the answer,
although again I do not think his explanation is technically accurate.
This is the relevant language of 52 U.S.C. §30121, which
covers “meddling” in U.S. elections by foreign nationals:
(a) Prohibition: It shall be
unlawful for—
(1) a foreign national, directly or
indirectly, to make—
(A) a contribution or donation of money or
other thing of value, or to make an express or implied promise to make a
contribution or donation, in connection with a Federal, State, or local
election;
(B) a contribution or donation to a committee
of a political party; or
(C) an expenditure, independent expenditure,
or disbursement for an electioneering communication (within the meaning of
section 30104(f)(3) of this title); or
(2) a person to solicit, accept, or receive a
contribution or donation described in subparagraph (A) or (B) of paragraph (1)
from a foreign national.
The Russians obviously violated this statute; they spent
millions of dollars to promote the candidacies of Bernie Sanders, Donald Trump
and Jill Stein, and to oppose the candidacies of Hillary Clinton, Ted Cruz and
Marco Rubio. So why weren’t they charged with the most pertinent crime they
committed? Because Christopher Steele arguably violated the same law. He is a
foreign national, and he contributed a “thing of value” to the Hillary Clinton
campaign, namely the fake dossier.
Note, too, Section (2): it is a crime to “solicit,
accept, or receive” such a contribution from a foreign national. Isn’t that
what the Perkins, Coie law firm, the Clinton campaign, the DNC, and probably
Hillary herself, did?
The FEC guidance on
contributions by foreign nationals is interesting. There is a “volunteer
exception”; i.e., foreign nationals can volunteer their services to a political
campaign. But Steele wasn’t a volunteer.
I don’t doubt that election lawyers could come up with
defenses for Christopher Steele, were he to be charged with violating §30121.
But that is a can of worms that Mueller didn’t want to open.
Too many people
know the facts behind the Steele dossier, and if he had charged the Russians
with meddling in the presidential election under §30121, he soon would have
faced questions about why he didn’t indict Steele–and Glenn Simpson, Perkins,
Coie, Clinton campaign officials, and perhaps Clinton–for the same offense.
It was in order to avoid that pitfall, I suspect, that
Mueller overlooked the most relevant federal offense that the Russians
committed, and instead charged them with a vague “conspiracy to defraud,” along
with wire fraud, bank fraud and identity theft. The first charge is entirely
discretionary on Mueller’s part, and Steele didn’t commit wire fraud, bank
fraud or identity theft.
I think that is why Mueller chose not to indict the
Russians for meddling in a U.S. presidential election.
