Q: Why weren’t more crimes charged from the behavior described in Vol. I?
First reason: Special Counsel (SC) was not able to collect all the evidence for a variety of reasons (Mueller Report, page 10)
Some individuals evoked their 5th Amendment rights and SC determined that they were not appropriate candidates for grants of immunity.
Often witnesses lied. In the words of SC: “Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges . . .”
Next comes one of the most remarkable statements in Vol 1 concerning why SC was not able to collect all the evidence.
Some people SC interviewed and investigated—including some associated with the Trump campaign—“deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data. . .”(10)
Gee. I wonder why they deleted stuff and used special applications so their communication couldn’t be traced? While Trump was raging about finding HRC’s “missing” emails, his staff was making sure their own communication couldn’t be traced.
In such cases, SC “was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.”
Moreover, numerous witnesses are not American citizens or were not in the US and could not be questioned.
The office limited its questioning of witnesses who claimed to be members of the media pursuant to DOJ regulations.
Often documents were held outside the US.
Some evidence was screened out by taint teams who determined the material was privileged.
(These protective laws are good. Our 4th Amendment and other protections have always meant fewer people are prosecuted, but trust me: You wouldn’t want to live in a world without them.)
From the report: “. . . given these identifiable gaps, the Office [SC] cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) on the events described in the report.”
Mueller specifically said he took it as his task to hand off any matters that could be better handled by other prosecution offices.
Very often, while reading, I hit redactions which make it clear that Mueller has handed off the investigation of particular crimes to other offices.
Possibly/Partly because SC did not have all the relevant evidence, they were often not able to meet the elements of particular crimes.
“What the heck does that mean, Teri?”
So that we can march together through the legal analysis in this report, I’m going to teach you IRAC. (This will also help my Twitter followers prepare for the Twitter Bar Exam.)
IRAC stands for:
- ISSUE
- RULE
- ANALYSIS
- CONCLUSION
The way you determine if a person committed a crime is you first frame the issue.
Issue: Did person X accept bribes when he did Y?
Rule: Next you look up the rule. With criminal law, this means listing out the elements of the crime. Each crime has multiple elements, and each crime requires some level of mens rea (guilty mind).
The elements of bribery are: Someone offers to give something of value to a public official, acting corruptly with intent to influence an official act OR someone offers something of value to a federal official because of an official act.
To obtain a conviction, a prosecutor must prove each element of the crime beyond a reasonable doubt.
ANALYSIS: for this part, you apply the facts to each element to see if you have enough evidence to prove each one. The evidence must be admissible in court.
This means hearsay and other forms of evidence deemed unreliable are not allowed. Therefore a lot of what is floating out there in news reporting isn’t admissible as evidence. This is good. Would you want to be convicted on what someone said to a reporter?
Conclusion: Decide whether you can charge the crime. Or if you’re the defense attorney, make sure the government has enough evidence. I’ll continue on with bribery (since that’s the example I’m using). Bribery is difficult to prove.
The Supreme Court, in a unanimous 1999 decision, ruled that there must be quid pro quo: a clear exchange of value. For further reading if you are so inclined, see.
The difficulty of showing all parts of quid pro quo protects people from being criminalized for something like this: You donate $200 to your favorite local representative. After she’s elected, you write a letter asking her to pass Measure A. She does. You benefit.
You might thinnk, well, that was a lame example. When crafting rules and standards, courts and legislatures are careful to not to criminalize behavior which isn’t actually corrupt, particularly in an environment in which politicians must raise money.
The jurist Blackstone explained the principle. It’s more important to protect the innocent than put more people in jail. He said it’s better that 10 guilty people escape justice than punish a single innocent one. I’m a defense appellate lawyer. I agree.
So we have two things happening: Members of the Trump campaign and others under investigation lied, deleted evidence, and made sure their activities were not documented. The standards for conviction are high.
