Paul asks the common sense question: “C’mon. Trump knew a crime was happening and did nothing. That has to be criminal, right?”
Not necessarily. Besides, Mueller went for something much bigger.
Take out your notebooks. It’s time for Twitter Law 101.
If you are nothing more than a passive witness, there is generally no duty to report an on-going crime.
The legal explanation is this: Every crime has two elements: Mens Rea (a guilty mind, or intention) and Actus Rea (a bad act.) Both parts are necessary.
If you are the passive witness to a crime and you do nothing to further the crime or conceal the crime, there is no Actus Rea. (It must be an actual act; it can’t be absence of an act.)
The policy explanation is this: Criminalizing a person for knowing about a crime would greatly enlarge our prison population by criminalizing, for example, victims afraid to speak up. Other examples: a woman stuck in an abusive relationship with a lawbreaker, or a mother who knows her son is up to no good. Reporting a crime (particularly a violent crime) often exposes a person to genuine danger.
So the general rule is that there is no legal duty to report an on going crime. There are, however, exceptions. These include mandatory reporting laws for crimes like child abuse.
Ever since Trump popularized the phrase “no collusion!” people mostly (but not always) use “collusion” to mean “conspiracy.”
Criminal defense lawyers everywhere were surprised Trump wasn’t charged with conspiracy. From the defense viewpoint, conspiracy is easy to prove and often used as a big net. To do the legal analysis, we start with the rule: 18 U.S. Code § 371 (conspiracy) has two elements. Prosecutors must have evidence to prove both elements beyond a reasonable doubt:
- Two or more persons conspire to commit any offense against the US or to defraud the US or any agency; and
- One or more of such persons do any act to affect the object of the conspiracy.
For why Mueller didn’t find enough evidence to charge conspiracy, click here. Prosecutors have discretion on what to charge. I accept Mueller’s conclusion.
What most surprised me was that Trump wasn’t charged with accessory liability.
Accessory liability means you didn’t commit the crime, but you actively helped in some way (like covering the getaway tracks or furnishing the weapon). Then I pondered the elements of Aiding and Abetting as used by the DOJ.
Aiding and abetting as understood by the DOJ has 4 elements:
- The accused had specific intent to facilitate the commission of a crime;
- the accused had the requisite intent of the underlying substantive offense;
- the accused assisted or participated in the commission of the underlying substantive offense; and
- someone committed the underlying offense.
Each requires evidence beyond a reasonable doubt (a high standard). The only easy one is the last (someone committed a crime). Element #3 is the problem. If Mueller didn’t find evidence that Trump committed enough of an action to be accused of conspiracy, it’s equally unlikely for there to be enough evidence that he “assisted or participated” in the underlying crime.
Timothy Snyder’s explanation, of course, is that a Tool Can’t Collude.
“But wait!” you say. “Trump helped cover up the crime!” That’s a different crime: accessory after the fact, which basically means you found out about a crime after it happened, and then helped out somehow.
Accessory After the Fact has 2 elements. An Accessory After the Fact is a person who:
- knowing that an offense against the United States has been committed,
- receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment.
The first element is easy: There is plenty of evidence in the Mueller report that Trump knew Russia was committing a crime. The second also seems easy: Trump obviously helped the perpetrators by lying about what was happening, and trying to shut down the investigation.
But Mueller didn’t go that direction. Instead, he saw what was happening as obstruction of justice—which is far more serious than, say, driving the getaway car or covering the tracks of the criminal.
Mueller described obstruction of justice as a “President’s corrupt use of his authority. . .” (Vol. II, p. 8) On Tuesday, Mueller said: “Obstruction strikes at the core of the government’s efforts to find the truth and hold wrongdoers accountable.”
The question is: Why did Trump try so hard to prevent Mueller from learning the truth about Russia?
The Trump Spin Machine claimed that since Trump didn’t engage in a conspiracy with Russia, he can’t be guilty of obstructing an inquiry in to conspiracy.
To take one of the many things wrong with the above claim: The point of the inquiry was to learn about Russia’s attack on our election (as well as “links and or/ coordination” between Russia & Team Trump.)
So why didn’t Trump want Americans to learn about Russia’s attack?
The most obvious answers are:
- He knew they helped put him into the White House and this delegitimizes his presidency, and
- Fox-Trump-GOP has been carrying on a secret love affair with Russia for years—and Trump tries hard to keep his secret love affairs secret.
For more on Trump-Fox-GOP love, click here.
Mueller couldn’t charge Trump with ANY crime—so why bother with small time accessory after the fact?
Instead Mueller went for the big picture crime: Corrupt use of government authority.
After I posted all of this on Twitter, Kristen wrote:
I’m doing this because the more people who understand the legalities, the better. Former FBI lawyer and Yale Professor Asha Rangappa said that she is less alarmed than others because she has seen how sausages are made.
Jumping to conclusions like “Mueller must be corrupt because he didn’t do what we expected,” or “Nancy Pelosi is corrupt because she isn’t doing what we like” often come from a lack of understanding about the legal system and government.
It’s important to remember that a main point of Russian Active Measures is to make people lose faith in democracy. Once that happens, it’s all over. Killing democracy by undermining public confidence is easier, smarter (and less bloody) than using bombs and guns.
Ian then asked:
That question brings us to another possible crime: Receiving stolen property. Benefiting from a crime, though, isn’t enough. What if the arson damages the building, and as a result, all the residents get new fixtures? The residents benefit from the crime.
There is also exchange of value (quod pro quo /bribery), a crime that is particularly difficult to prove. SCOTUS made it hard so that we don’t criminalize this: A person donates to a campaign. The elected official enacts legislation that benefits the person.
I think Mueller did right in going for obstruction of justice/ corrupt use of government power.
