Mueller's Latest Indictments

The plot continues to thicken in the Russia investigation. This morning Special Counsel Robert Mueller’s team of prosecutors publicly released a new indictment that they have filed in the U.S. District Court for the District of Columbia. Here is a copy of the charging document.  The defendant is Alex Van der Zwaan, an attorney who worked at the London office of Skadden Arps. The indictment accuses him of making false statements to the FBI and Mueller’s team during a November 2017 interview with federal investigators in Washington D.C. The Washington Post is reporting that Van der Zwaan is the son-in-law of a Russian businessman. According to the indictment, Van der Zwaan lied about communications he had in September 2016 with Richard Gates, a close associate of former Trump campaign manager Paul Manafort, and “Person A,” who is unidentified in the indictment. Intriguingly, Mueller's indictment also accuses the defendant of deleting emails sought by Mueller, including one the defendant exchanged with “Person A.” This would certainly suggest that Mueller was able to track the emails down from other sources. The Van der Zwaan charging document is very brief, less than 2 pages in length, but it obviously appears there is a lot more to come in this story.

The Van der Zwaan indictment comes on the heels of the special counsel’s indictment of 13 Russian nationals and 3 Russian entities for meddling in the 2016 U.S. presidential election. Here is a copy of Friday’s indictment of the Russians.  It makes for riveting and deeply disturbing reading. It provides further evidence of the massive scale of Russia's effort to undermine American democracy. The indictment is also interesting because of the surprising and creative nature of the charges. As former White House counsel and leading campaign finance expert Bob Bauer pointed out on the Just Security blog over the weekend, Mueller’s indictment of the Russians does not allege a direct violation of federal campaign finance laws.  Instead, the indictment charges the defendants with conspiracy to defraud the United States, conspiracy to commit wire fraud and bank fraud, and aggravated identity theft. After reading the indictment, it is clearer than ever that there are many, many more shoes to drop in Mueller’s investigation.    

As I wrote on Sunday, even if Mueller turns up evidence that President Trump himself has committed crimes, I don’t think the Constitution permits the special counsel to indict the president directly. In my opinion, the House of Representatives is the only institution authorized to bring charges against a sitting president.

But I cannot emphasize enough how impressed I am by Robert Mueller’s handling of the investigation thus far. He is a person who deserves the nation's respect and admiration. Since leading a Marine rifle platoon in combat in Vietnam in the late 1960s, Mueller has devoted his life to serving our country in selfless fashion. At a time when our nation’s political institutions are being tested like never before, it is reassuring to know that, for the time being at least, we have a truly first-class attorney and deeply honorable person in the role of special counsel. Long may he continue in that role.

UPDATE: The Washington Post is now reporting that Van der Zwaan will plead guilty in court this afternoon to the false statement charge. That is apparently why the charging document is styled as a "criminal information" filing rather than a traditional indictment. At a minimum, therefore, it would seem that the list of defendants cooperating (and, presumably, sharing valuable information) with the special counsel's office continues to grow.

Comments

[anon]

As many, many astute and knowledgeable commentators have noted, the claim that the indictment to which you refer "provides ... evidence of the massive scale of Russia's effort to undermine American democracy" is truly a false statement.

Perhaps you are referring to something else, e.g., the Rachel Maddow show. Not to that indictment, surely. Look at the amounts spent, in context, and I think you will agree that comparing 2 billion or so spent by the campaigns to 10 million or so, spent for "ads" to which most voters in key states were never exposed (and much of the money spent AFTER the election), was not a "massive scale."

Do you refer to the "rallies" this group organized, AFTER THE ELECTION, to demonstrate "NOT MY PRESIDENT"? Oh, those were so threatening to our very way of life!

Moreover, please explain how being "Russian" disqualifies one from the benefits of the First Amendment. Please explain.

[Deep State Special Legal Counsel]

^^^^Good point. So, the issue is, does the First Amendment protect lying, cheating, dishonest, mendacious Speech intended to persuade low information, uncritical grievance voters to cast a ballot a certain way?

[Anthony Gaughan]

Thank you for your comments, anon.

In response, I would simply note that there is a quote that is directly on point, and it comes from the January 6, 2017 official joint report of the DNI, CIA, FBI, and NSA, which concluded that:

"Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election. Russia's goals were to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump. We have high confidence in these judgments."

The CIA/FBI/DNI/NSA joint report further concluded that:

"Moscow's campaign aimed at the US election reflected years of investment in its capabilities, which Moscow has honed in the former Soviet states. By their nature, Russian influence campaigns are multifaceted and designed to be deniable because they use a mix of agents of influence, cutouts, front organizations, and false-flag operations. . . . The Kremlin's campaign aimed at the US election featured disclosures of data obtained through Russian cyber operations; intrusions into US state and local electoral boards; and overt propaganda."

Again, that conclusion comes from the FBI, CIA, DNI, and NSA, not the Rachel Maddow Show.

As for your assertion that the First Amendment protects the Russian government's right to speak during American election campaigns, there is a federal case that is also directly on point. It is called Bluman v. FEC, 800 F.3d 281 (D.D.C. 2011), affirmed 565 U.S. 1104 (2012), and in it the federal court held that:

"[T]he United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process."

In addition the federal court held that:

"[I]t is undisputed that the government may bar foreign citizens from voting and serving as elected officers. It follows that the government may bar foreign citizens (at least those who are not lawful permanent residents of the United States) from participating in the campaign process that seeks to influence how voters will cast their ballots in the elections.”

The United States Supreme Court summarily affirmed the Bluman decision in 2012.

But thank you again for your comments! I think it's important to hear a variety of opinions on these major issues of public concern.

[anon]

Anthony

Thank YOU for your response. I agree that it is important to hear your views, and a variety of opinions.

However, you are factually mistaken that I asserted that "the First Amendment protects the Russian government's right to speak during American election campaigns." That is sort of, well, a mischaracterization, or not true, as you prefer.

I asked whether the First Amendment applies to "Russians." You have answered by claiming that the First Amendment does not protect speech by the Russian government.

This is a key distinction that is not recognized by many who have jumped on the recent McCarthy-like bandwagon. Many, like you, fail to even notice any difference between using the term "Russian" and referring to "the Russian government."

Correct me if I am wrong, but the indictment you wrote about above does NOT directly allege that the actors were acting on behalf of the Russian government, though that may be possible, of course. (Simply search the pdf for “government” and let us know.) The indictment goes out of its way, it seems to me, to make clear that “FARA establishes a registration, reporting, and disclosure regime for agents of foreign principals (which includes foreign non-government individuals and entities).”

Yes, the ORGANIZATION "registered with the Russian government as a Russian corporate entity." So? Certain of the defendants are alleged to have had "various (relevant?) Russian government contracts."

Do those allegations make it clear to you that it is alleged that the Russian government directed these defendants?

(BTW, for some inexplicable reason, you switched from discussing "Friday's indictment of the Russians," as you so delicately put it — a subject of your post — to a finding by four intelligence agencies in January 2017, or, for those of you who follow MSNBC and others, the SEVENTEEN intelligence agencies that, more than one year ago, “unanimously” found that the Russians “hacked” our election.)

The influence campaign in the indictment about which you have written is alleged to have begun, as one is sure you know, in 2014, and continued after the election. The indictment alleges: “The conspiracy had as its object impairing, obstructing, and defeating the lawful governmental functions of the United States by dishonest means in order to enable the Defendants to interfere with U.S. political and electoral processes, including the 2016 U.S. presidential election.”

This campaign included efforts against the incumbent. As noted above – a point you elide — the indictment alleges that “Defendants and their co-conspirators, through another ORGANIZATION-controlled group, organized a rally in New York called “Trump is NOT my President” held on or about November 12, 2016. Similarly, Defendants and their co-conspirators organized a rally entitled “Charlotte Against Trump” in Charlotte, North Carolina, held on or about November 19, 2016.”

As also noted above, much of the funds at issue, at least as I understand the reporting, were expended after the election, and, again, as many have noted and as noted above, the spending strategy in the view of many experts (including on MSNBC) before the election was grossly incompetent and unlikely to have had any appreciable effect

Your citation to Bluman is of interest. The decision, as relevant here, was as to a prohibition on a “foreign national” making “(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 434(f)(3) of this title).”

First, as you note, "Mueller’s indictment of the Russians does not allege a direct violation of federal campaign finance laws." Second, the Bluman court stated: "That said, we note three important limits to our holding in this case. First, we do not here decide whether Congress could constitutionally extend the current statutory ban to lawful permanent residents who have a more significant attachment to the United States than the temporary resident plaintiffs in this case. Any such extension would raise substantial questions not raised by this case. Second, we do not decide whether Congress could prohibit foreign nationals from engaging in speech other than contributions to candidates and parties, express-advocacy expenditures, and donations to outside groups to be used for contributions to candidates and parties and express-advocacy expenditures. Plaintiffs express concern, for example, that a ruling against them here would green-light Congress to impose bans on lobbying by aliens temporarily in this country. They similarly express concern that Congress might bar them from issue advocacy and speaking out on issues of public policy. Our holding does not address such questions, and our holding should not be read to support such bans."

I'll leave it to you to parse that Orwellian decision further, but, clearly, please note that the ban to which you refer (as considered in Bluman) did not apply to "Russians" and does not prohibit “Russians” from speaking out on issues of public policy. Perhaps, given the independent expenditures aspects of the rule in question, even that issue, which as decided in Bluman in reality was fairly narrow, may be relitigated. (The Court of Appeal was affirmed, without opinion, in the Supreme Court.)

In any event, ethnic slurring seems objectionable. The term "Russian" is thrown around today in ways that would make Joe McCarthy blush. If you substitute your opprobrium upon another group of “foreign nationals” speaking out in this country, and you easily could, you might find your peers recoiling in distaste.

Finally, you fail completely to address the principal point of my comment, so, I’ll repeat it: “As many, many astute and knowledgeable commentators have noted, the claim that the indictment to which you refer "provides ... evidence of the massive scale of Russia's effort to undermine American democracy" is truly a false statement. Perhaps you are referring to something else, e.g., the Rachel Maddow show. Not to that indictment, surely. Look at the amounts spent, in context, and I think you will agree that comparing 2 billion or so spent by the campaigns to 10 million or so, spent for "ads" to which most voters in key states were never exposed (and much of the money spent AFTER the election), was not a "massive scale."

[anon]

According to the Washington Post,

"Clinton's unsuccessful campaign ($768 million in spending) outspent Trump's successful one ($398 million) by nearly 2 to 1. The Democratic National Committee and left-leaning outside groups also outspent their Republican counterparts by considerable margins."

Of course, one could fairly say there was rather a constant barrage of attacks on Trump in the mainstream press, including the Billy Bush tape, widely publicized and incessant accusations of all manner of improprieties, etc.

So, over a billion to support Hillary in paid media, and a nearly uniformly united press attacking her opponent, who had no political experience whatsoever and had never held elected office. And she lost.

Let's see. Let's use our big brains. Why?

Oh, it must have been a bunch of Russians, with their "massive" spend on Facebook and posting comments on blogs.

Again, as noted in the Washington Post, "The Russian effort looks even less influential when one considers the tiny amount of Russian Facebook spending directed at key battleground states — $1,979 in Wisconsin, $823 in Michigan and $300 in Pennsylvania. From an electoral perspective, the campaign was remarkably unsophisticated."

Oh, but wait, those "Russians." They're clever. They're insidious. They are everywhere. They are speaking!!!

It's no wonder the reason that Hollywood needed to be purged. Now, we finally understand old Joe. The Democrats have taught us that he was right all along: They ARE poisoning our minds!

[Anthony Gaughan]

Thank you for your additional comments, anon, which I enjoyed reading.

Although I do indeed continue to think the word "massive" is an accurate description of the scale of the Russian government's effort to influence the 2016 election (and Friday's indictments are, as I wrote, "further" evidence of the scale of the Russian effort), I completely agree with you on a crucial point: the campaign spending by American candidates, American Super PACs, and American political parties vastly exceeded whatever the total amount of spending by Russian national sources during the election.

We'll never know the exact amount of Moscow's campaign-related expenditures, and I think we can say with confidence that Vladimir Putin's government and related-entities are unlikely to ever file disbursement reports with the Federal Election Commission.

But your $10 million figure seems right to me. The key point is that whatever the total amount of Russian spending on the election, it was as you rightly point out a drop in the bucket compared to the vast amount of American spending on the election, which according to the FEC totaled close to $7 billion in all (when you factor in outside group spending and the congressional races).

Moreover, as you correctly point out, the Clinton campaign far outspent the Trump campaign in the 2016 election. And, I might add, Trump's GOP primary opponents vastly outspent him as well.

But because of the rapidly changing nature of the modern media environment, traditional measures of campaign spending are no longer a particularly telling indication of whether a candidate is succeeding at getting his or her message out to the electorate.

SHAMELESS SELF PROMOTION ALERT: In fact, as it just so happens, I wrote an article last fall on this very issue. It's called "Trump, Twitter, and the Russians: The Growing Obsolescence of Federal Campaign Finance Law." My central point is that social media and the internet have rendered the American campaign finance regulatory model completely obsolete.

Trump understood that fact far sooner than anyone else, which is one of the key reasons why he a) won the GOP nomination despite being greatly outspent by his opponents, and b) why he won the presidency despite being greatly outspent by his opponents. Trump's use of social media and, crucially, his extremely sophisticated (and cynical) use of free media rendered the traditional media advertising model that the Clinton campaign relied on ineffective and useless. Clinton ran a 20th century campaign whereas Trump (and Putin) ran a 21st century campaign.

But nevertheless, in my opinion, the word "massive" is still a fair description of the effort by the Russian government (and associated entities) to assist Trump (and to defeat Clinton). Remember, Friday's indictment is just one part of a large body of evidence (including the January 2017 ONI report) that actors associated with the Russian government viewed the defeat of Hillary Clinton's campaign as a Russian national security priority.

My own view is that the reason why Moscow despised Clinton is because of the Clinton State Department's expressions of support for anti-Putin protesters in the run up to the 2012 Russian presidential election (which Putin believed crossed a red line into Russian domestic politics), and furthermore Moscow's conclusion that a Hillary Clinton presidency would maintain and likely intensify the Obama Administration's Ukraine/Crimea-related sanctions on Russia.

But whatever the reason for Putin's hostility to Clinton, I would not measure the scale of the Russian effort purely in terms of the quantity of dollars/rubles expended by Moscow.

Indeed, just think about it. If you are the head of the Russian military intelligence services or you are a Russian oligarch or a Russian Information Technology expert, and President Vladimir Putin turns to you and says "it's a priority of mine that Hillary Clinton's campaign is defeated," I think we can say with 100% confidence that a massive effort by all components of the Russian state (including "private" actors associated with the Kremlin) will immediately see to it that Putin's objectives are attained.

So, regardless of the quantifiable amount of the actual financial outlays by the Kremlin and by the individuals/entities that were named in Friday's indictment, I think the scale of the Russian effort was indeed massive.

But again, thanks so much for your comments, anon. I enjoy these exchanges very much, and I think it likely that in the weeks and months ahead the Russia investigation will give us plenty more to discuss and debate!

[anon]

Yes, and yes, as to appreciating a way to debate these issues civilly. Rare indeed.

Although you have graciously acknowledged many of the realities that belie the present (and third) "Red scare" I don't think that you have appreciated the overestimation of the "Russian" influence. That piece in the Washington Post, from which I quoted above, spelled it out quite clearly.

Perhaps you are overestimating the extent to which "social media" is the answer to the incumbent's election. Perhaps there is no way that miniscule efforts on "social media" (there efforts, objectively, were not massive, in any sense, sorry) could have been so effective, when all those other factors I noted above were not.

Here's something to consider: If these efforts were so massive, and known to the authorities, why were they not curtailed (e.g., by contacting Facebook and others)? Is it possible that these efforts were assessed as trivial?

Why are we not discussing the fact that these efforts, according to the indictment, were also designed to help Sanders and Klein?

The sad truth is that, after lambasting the incumbent before the election for not accepting the result, in advance, and no matter what (a Hillary victory), after mocking his claims that shenanigans were occurring (they were), ever since election day there has been a non stop effort to overturn the election: recount effort, rallies (some staged by "Russians"), investigations into "collusion" and then investigations into impeding the "collusion" investigation, blaming Comey for the defeat and then lionizing him as the savior who will bring down the incumbent, once and for all.

These efforts have, in many instances, had as their " object impairing, obstructing, and defeating the lawful governmental functions of the United States in order to interfere with unchallenged results of the U.S. political and electoral processes, including the 2016 U.S. presidential election." Have all the accusations been true and well-founded? If not, add "by dishonest means."

Who, truly, are the "Russians" here?