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Not so Fast

Trump administration officials and spokesmen are out in force on the first anniversary of Robert Mueller’s investigation of Russian interference in our 2016 elections. Their pitch is that, after a whole year of investigating, it’s time for Mueller to wrap it up. “We’ve tortured this President enough,” says Donald Trump’s newest lawyer, Rudy Giuliani.

Let’s set aside the irony of Giuliani’s reference to “torture” with regard to a President who doesn’t think waterboarding is torture. Evidently, if we’re serious about terrorism we should stop coddling suspects with stuff like rectal rehydration, stress positions and sleep deprivation, and really put the screws to them by asking them for documents.

Of course Giuliani has a histrionic history of hyperbole, like when he accused David Dinkins, then Mayor of New York, of engaging in a “pogrom” against the city’s Hasidic Jews. And if there was any doubt of Giuliani’s indifference to facts, his recent performances on FOX News in purported support of his presidential client certainly dispelled that doubt. Even Donald Trump, the most fact-indifferent president in American history, was compelled to observe that Giuliani didn’t have his facts straight.

But back to the Mueller investigation. As special investigations go, at one year old Mueller’s is a mere baby. No investigation in modern special investigation history that produced even a single indictment has shut down within a year.

Since 1973, when the Watergate scandal gave birth to special investigations in their modern form, eleven special investigations have produced indictments. The longest-running of those investigations took well over eight years to complete. The target was President Bill Clinton’s secretary of Housing and Urban Development, Henry Cisneros. Investigators ultimately determined that Cisneros had lied to investigators about hush money paid to a former mistress. The investigation produced just two indictments (Cisneros and the mistress, who lied about using the hush money to buy a house), both of which led to guilty pleas in the third year of the investigation. Investigators spent another five years inconclusively looking for obstruction of justice by the Clinton administration.

The shortest-lived investigation that produced any indictments was the investigation of Ronald Reagan’s former White House aide Lyn Nofziger. Nofziger’s was the only indictment, and although he was initially convicted for violating federal law regulating lobbying by former federal officials, the conviction was overturned on appeal. That investigation lasted about a year and a half.

Nearly half of the special investigations, five out of eleven, produced no indictments at all during their first year. Mueller’s investigation produced 19 indictments in its first year, and we can be fairly confident that more are coming.

The received wisdom is that Trump wants to fire Mueller, and I have no reason to doubt that consensus. But I do doubt that the firing will come before November’s midterms, because I’m sure the White House realizes that few moves would create greater risk to Republican control of Congress. Trump’s average approval rating is running above 42 percent for the first time in a year, and Republicans’ disadvantage in the “generic” Congressional ballot is smaller than it has been in a year. With Republicans finally making some headway in polling, and with large majorities of Americans telling pollsters that Trump should not fire Mueller, the last thing Republicans need is for Trump to fire Mueller in the lead-up to the midterms.

Meanwhile, Trump and Republicans make use of Mueller and his investigation as a foil – rallying the base by railing against the “witch hunt” and making out like the investigation has been unduly drawn out. A vote for a Democrat is a vote for impeachment, we are told, and impeachment is not popular among the decisive center of the American electorate.

Mueller’s investigation is a complex one, much more complex than an investigation into a single instance of perjury, for example, or one ex-official’s lobbying practices. Although, somewhat ironically, both pro-Trump and anti-Trump partisans would say that the core of the investigation is the question of “collusion,” in fact the foremost subject of the investigation is Russian government interference into our election – which is by itself a multi-faceted counter-espionage investigation. Even if not one American was involved in or knew about the Russian effort, such an investigation would take years to complete.

Most previous special investigations that led to indictments involved isolated cases of perjury, influence peddling, or other relatively narrow improprieties. Only two of those relatively narrow investigations were completed in less than two years.

More complex investigations haven’t been completed in less than four years. The Watergate investigation, the granddaddy of all modern special investigations, ran just over four years. The Iran-Contra investigation went on for more than six years. And the Whitewater investigation took for more than seven years to complete. In that context, Mueller’s investigation is just gearing up.

Furthermore, the subject of Mueller’s Russian investigation is more serious than the subject of any of the other special investigations. Perjury by high level officials is serious, of course, but not a threat to our democracy. Improper acceptance of gifts, influence-peddling, improper lobbying – all are serious, but none are threats to our democracy. Even the Whitewater real estate development scheme – which involved serious criminality, including investor fraud, mail fraud, and tax evasion – posed no threat to our democracy.

The most serious subject of a special investigation before the Russian election interference was undoubtedly the Watergate scandal. At its core, the Watergate burglaries were the culmination of a White House-directed campaign of dirty tricks against leading Democratic presidential candidates, the overall purpose apparently being to engineer the nomination of the Democrats’ weakest candidate and to ensure the re-election of President Richard Nixon in 1972. Given the success of those dirty tricks at discrediting a number of the leading Democratic candidates, and given the ultimate nomination of George McGovern, certainly the weakest of the major Democratic primary candidates, it’s hard to argue that the dirty tricks campaign was ineffective.

Watergate, in other words, was a direct assault on our electoral democracy – Watergate was a secret and even criminal campaign of interference by top-level government officials into the intraparty affairs of the opposition, for purposes of ensuring the outcome of the next election. And of course that’s not even counting the cover-up.

Russian election interference was similar to Watergate, in two respects. First, it was the covert and criminal interference by Russian government operatives and cut-outs in the American election. And second, the interference was intended to advantage one candidate over another – to influence, if not determine, the election outcome.

But there are two aspects of the Russian election interference that make it much worse than Watergate. First, the interference was by a foreign government – a government more hostile to American interests than most of the governments in the world. Russian interference was therefore not only an attack on our democracy, as if that weren’t enough; it was also an attack on our national sovereignty.

And second, the chosen methods of Russian interference included the insertion of intentionally divisive propaganda into the national discussion, in order to sow discord – to heighten American political divisions, to undermine American national unity, and therefore to diminish American international stature and strength. Russian election interference was part of a larger campaign, evidently continuing to this day, of undermining Western democracies, thereby diminishing the appeal and influence of democracy in the world and enhancing the stature and influence of autocrats like Russian President Vladimir Putin.

Given this gravity of the subject of Mueller’s investigation, it’s critically important to American national security, sovereignty and self-government that his investigation be complete and thorough, even if not a single American was involved in, or even knew about, the Russian interference.

But some Americans apparently did know about at least some of the Russian effort. George Papadopoulos knew that Russians had obtained “dirt” on Hillary Clinton, in the form of “thousands of emails.” Roger Stone – a man with ties to Russian intelligence, Paul Manafort, and Wikileaks founder Julian Assange – apparently knew that Wikileaks would be publishing stolen Democratic National Committee e-mails before Wikileaks actually published them. Donald Trump, Jr., Jared Kushner, and Manafort went into the infamous Trump Tower meeting expecting that a “Russian government attorney” would give them “dirt” on Hillary Clinton from Russia’s chief prosecutor, as part of Russian government “support for Mr. Trump.”

President Trump likes to say that if a country doesn’t control its borders, the country will fail. To President Trump, border protection is existential: “We either have a country, or we don’t have a country.” President Trump proposes the construction of a literal wall to control our southern land border, and he proposes strenuous enforcement measures, even harsh measures like taking children from their parents at the border, to punish and deter individuals who cross the border without authorization.

I propose that if a country doesn’t control its own elections, the country will fail. For a democracy, protection of its elections is existential. So I propose the construction of a figurative wall to protect our elections from foreign interference. And I propose strenuous prosecution of any person who participated in or covered up for Russian election interference, whether that person is Russian, American, or otherwise, to punish and deter individuals who interfere with our elections.

To do this, we need the fullest possible understanding of Russian election interference in all its aspects – who was involved, what they did, how they did it, and whether and how they can be stopped in the future. If all of that can be done by Rudy Giuliani’s deadline, that’s great. But no matter how long it takes, it must be done.



Dershowitz is Wrong About the Special Counsel

President Donald Trump’s argument against the appointment of a special counsel to investigate Russian election interference has been that “there was no collusion” between the Trump campaign and the Russians who interfered in the election. He has gotten support from Harvard Law School Professor Alan Dershowitz, a prominent liberal civil rights advocate.

This morning on FOX & Friends, Dershowitz said:

First of all, the president’s 100 percent right. There never should have been an appointment of special counsel here. There was no probable cause at that point to believe that crimes had been committed. I’ve seen no evidence to suggest that crimes have been committed by the president.

As I’ve said from day one, there should have been a special investigative commission, non-partisan appointed by Congress, with subpoena power to look into the role of Russia and trying to influence American elections and do something about preventing it in the future. Instead of starting out with finger-pointing and trying to criminalize political difference behind the closed doors of a grand jury.

Within minutes, Trump tweeted out a Dershowitz quotation, accurately capturing Dershowitz’s basic point even if not accurately quoting his actual words.

If Dershowitz was arguing that his personal preference would have been for a special commission over a special counsel, he is of course entitled to that opinion. But if he was arguing that appointment of a special counsel was legally invalid, he is dead wrong.

The first reason Dershowitz is wrong is that there is no requirement that a special counsel can be appointed only there is “probable cause” to believe that a crime was committed. The governing Department of Justice rule provides for appointment of a special counsel if a “criminal investigation of a person or matter is warranted.” Something is “warranted” if it is a wise or prudent thing to do; the word “warranted” does not imply any specific evidentiary standard.

Probable cause is required for a variety things – a police officer needs probable cause to arrest someone, for instance, and a court needs probable cause to issue a search warrant. But there is no rule, and never has been, that a criminal investigation may not be initiated without probable cause. On the contrary, police officers routinely investigate complaints, even anonymous tips, the evidentiary value of which fall well below the probable cause threshold.

The second and more important reason that Dershowitz is wrong is that there was probable cause to believe that whole bunches of crimes had been committed. Dershowitz’s argument appears to be based on his belief that “it would not be criminal, even if it happened, for the Trump campaign to have collaborated with the Russians in an effort to get their candidate elected.”

That’s a truly remarkable statement, and I’m aware of no law enforcement official who agrees with it. Federal crimes potentially arising from collaboration with Russians to elect a presidential candidate range from fairly technical election law violations to conspiracy to commit espionage. Professor Dershowitz’s personal opinion about what does and does not constitute a crime does not determine the propriety of a special counsel appointment.

In any event, the basis for the special counsel appointment was not limited to the question of collaboration. The stated purpose of the appointment of a special counsel, as stated by Deputy Attorney General Rod Rosenstein in his order making the appointment, was “to ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election.”

Russian election interference had several criminal aspects. One was the hacking and theft of e-mails from the Democratic National Committee and from Hillary Clinton’s campaign. (Russians also hacked the Republican National Committee, but the hack didn’t result in release of any stolen information, leading to speculation that the Russians may be holding any information they stole to use as leverage.) Another was the series of intrusions, some more successful than others, into state voter databases and other election systems. And a third was the disinformation campaign that involved use of stolen Americans’ identities, wire fraud, and bank fraud, for which Special Counsel Robert Mueller recently obtained indictments.

It may be that all of those crimes were committed solely by Russian nationals, unassisted by even one American, but that’s irrelevant. Crimes were committed, and a criminal investigation was warranted.

A thorough investigation of any crime includes identification of every person who participated in the crime. Therefore a thorough inquiry into Russian election interference necessarily involves consideration whether Russians solicited or obtained the assistance of Americans. And any good investigator knows that a good place to start the inquiry is to ask who benefited from the crimes. (TV cop show fans know that the homicide detectives are going to take a hard look at the beneficiary of the murder victim’s will or life insurance policy.) If the Trump campaign was an actual or intended beneficiary of Russian meddling, then it’s just sound investigative practice to look into whether the Trump campaign was in on the meddling.

Furthermore, there was plenty of evidence of what was at the very least odd behavior toward Russian government interests by members of the Trump campaign – from Carter Page’s trips to Russia, to Michael Flynn sitting next to Vladimir Putin at the Russia Today gala, to the mysterious reversal of the Republican Party’s platform position on Russia’s takeover of the Crimea, to Roger Stone’s apparent knowledge that John Podesta’s hacked e-mails were about to be posted on Wikileaks.

The public did not then know about the infamous Trump Tower meeting, which the President’s son, son-in-law, and campaign manager attended in hopes of receiving “dirt” on Hillary Clinton, but the FBI may have known about it, perhaps from routine surveillance of Russian officials and operatives. The public did not then know about George Papadoplous’s receptiveness to receiving similar “dirt,” but the FBI may have know about it – the FBI interviewed Papadopoulos four months before Mueller was appointed.

On FOX & Friends this morning, Professor Dershowitz seems to have gone out of his way to note an absence of evidence of crimes committed by President Trump himself. I personally am skeptical that Trump himself conspired with Russians to rig the 2016 election, although I suspect he may have known about the Russian effort. Certainly when Donald Trump Jr. was told that the Russian government was supporting Trump, he registered no surprise – as if he already knew about it. If Junior already knew about it, then Senior probably did as well. And if Junior didn’t know about it, it seems like something important enough that he might have passed it on to Dad, whose office was right upstairs.

But again, special prosecutors are not limited to investigating presidents. Special prosecutors investigate crimes. In this case, because the investigation necessarily had to consider the possibility of Trump campaign involvement, and Attorney General Jeff Sessions was part of the campaign, Sessions had to recuse himself from overseeing the investigation. That left FBI Director James Comey reporting to Deputy AG Rosenstein. When Trump fired Comey, that necessarily created the appearance, if not the reality, that the investigation into the Trump campaign was compromised, and would not be thorough. That appearance created the “conflict of interest for the Department or other extraordinary circumstances” that Department of Justice rules require for the appointment of a special counsel.

Alan Dershowitz is entitled to hold the opinion that appointment of a special counsel was not the best way to go about investigating Russian election interference. But any suggestion that the special counsel appointment was improper or invalid is unambiguously wrong.

Democrats Should Withhold Judgment on McCabe’s Firing

Congress passed the Inspector General Act in 1978, in the wake of the Watergate scandal, creating inspectors general for federal agencies. Inspectors general were given investigative and auditing powers, and were charged to detect and prevent fraud, inefficiency, illegality and other impropriety in those agencies. Each agency’s IG is appointed by the president and confirmed by the Senate, and operates largely outside the regular supervision of the agency for which the IG serves as watchdog.

It is common that an IG is appointed by one president and continues to serve after another president takes office. Glenn Fine, for instance, was appointed by President Bill Clinton to be the Department of Justice’s IG in 2000; he served through both terms of the George W. Bush administration, and the first two years of the Barack Obama administration, leaving DOJ in January 2011.

Fine’s successor is Michael E. Horowitz. Horowitz is a Harvard Law School graduate who clerked for a federal judge in California, worked for the eminent commercial law firm of Debevoise & Plimpton, and began his government career in 1991 in the United States attorney’s office in Manhattan. He rose to the position of chief of the Public Corruption Unit, which he held from 1997 to 1999.

From there, Horowitz went to the Department of Justice as deputy assistant attorney general, later becoming chief of staff for the Criminal Division at DOJ. Horowitz returned to private practice in 2002. In his spare time, he has served on the U.S. Sentencing Commission, the Ethics Resource Center, the Society of Corporate Compliance and Ethics, and the Lawyers Committee for Civil Rights Under Law.

Horowitz’s background in ethics, public corruption, and the operations of the Department of Justice commended him to President Obama, who nominated Horowitz to fill the IG vacancy that was created by Glenn Fine’s departure in 2011. The Senate confirmed Horowitz by voice vote, and he began work in April 2012.

Readers will recall that then-FBI Director James Comey devastated Hillary Clinton’s 2016 presidential campaign when he publicly announced, less than two weeks before election day, that he was re-opening the FBI’s investigation into Clinton’s handling of classified information contained in e-mails during her tenure as secretary of state. Clinton’s polling immediately went into a deep dive, bottoming out a week later with Clinton ahead of Donald Trump by less than three percent of the vote – just about where things came out on Election Day.

The re-opened e-mail investigation ended as the original investigation had ended – with no charges. But the damage to Clinton’s campaign was done, and Democrats were furious with Comey. Things only got worse on January 10, 2017, when Comey testified at a hearing of the Senate Intelligence Committee.

Oregon Senator Ron Wyden asked Comey if the FBI was looking into reports of contacts between the Trump campaign and the Russian government. Comey answered, without apparent self-consciousness, “I would never comment on investigations, whether we have one or not, in an open forum like this.” Maine Senator Angus King famously replied, “The irony of your making that statement here I cannot avoid, but I’ll move on.”

Democrats accused Comey of being “inconsistent” – publicly revealing the re-opening of an investigation into the Democratic presidential nominee, but refusing to say whether an investigation had been opened into the Republican presidential nominee. Within days, many Democrats were calling on Comey to “pack his things and go.” On January 12, 2017, Inspector General Horowitz announced an investigation into Comey’s handling of the re-opening of the Clinton e-mail investigation.

The initial investigation expanded as it proceeded. Late in the 2016 general election campaign, a dispute had developed between the FBI and the DOJ over how to proceed in the investigation of allegations of improprieties at the Clinton Foundation. Deputy FBI Director Andrew McCabe authorized an FBI spokesman to talk to the Wall Street Journal about the investigation, specifically to refute the suggestion that he had held back on the Clinton Foundation investigation. The disclosure was unfavorable to Clinton’s campaign, although the disclosure had only minor impact compared to the disclosure of the re-opened e-mail investigation.

Authorizing a public statement about an ongoing investigation would appear to violate the same rule that Comey had announced to the Senate Intelligence Committee, the rule against public comment on pending FBI investigations.

Last week, the first results of the Horowitz investigation became publicly known. The IG apparently found that McCabe should not have gone public about the Clinton Foundation investigation, and that McCabe had been less than fully forthcoming with Horowitz’s investigators about the matter. Lack of candor is a capital offense at the FBI – as, frankly, it should be. Media reports indicate that Inspector General Horowitz concluded that McCabe should be fired, and that the current FBI director, Christopher Wray, agreed. McCabe exercised his right to appeal to the attorney general, Jeff Sessions, and, on Friday, Sessions accepted the recommendation and McCabe was fired.

There are lots of things we don’t know yet. Most importantly, we don’t know the details of Horowitz’s findings that McCabe improperly publicized the Clinton Foundation investigation and that McCabe was not fully candid during the investigation.

But we do know that Horowitz is no stooge, either for Donald Trump or for Jeff Sessions. Horowitz is not someone who does Trump’s bidding – Trump referred to Horowitz as “an Obama guy” when Trump lambasted Sessions for referring the Carter Page search warrants to the inspector general instead of to criminal prosecutors.

We also know, if we pause to remember, that we were pretty mad at the FBI back in 2016 and 2017, and for pretty good reasons. The fact that Comey and McCabe also took on an investigation into Russian election interference and whether the Trump campaign was in on that interference, does not diminish the reasons we were displeased with their handling of the Clinton investigations. And it hardly behooves Democrats to excuse or minimize an FBI official’s lack of candor in an investigation that Democrats demanded.

We know that McCabe had given 90 days’ notice of his retirement, and that he was fired on the last work day before his retirement would go into effect. Breathless reporting all over the media holds that McCabe’s firing will cost him his pension, or at least jeopardize his pension, but this is incorrect. Sessions fired McCabe on Friday, two days short of his 50th birthday, thus depriving McCabe of early retirement benefits that he would have been entitled to had he been employed on his 50th birthday. But McCabe’s basic pension benefits remain intact; he can start collecting after he’s 57.

The lost early retirement benefits were certainly valuable – CNN says that the lifetime loss to McCabe will total “hundreds of thousands of dollars.” There are claims that the investigation was improperly rushed in order to beat McCabe’s retirement date, that McCabe was given insufficient time to present his appeal to Sessions, and that Sessions buckled to pressure from Trump to fire McCabe. There is as yet no public evidence either to support or to refute any of these assertions.

McCabe and his attorneys of course have every reason to push those claims, and McCabe himself says that he was “singled out and treated this way because of the role I played, the actions I took, and the events I witnessed in the aftermath of the firing of James Comey … as part of this Administration’s ongoing war on the FBI and the efforts of the Special Counsel investigation.”

There’s no denying Trump’s animosity toward the leadership of the FBI, the special counsel, and his own attorney general, and toward Andrew McCabe in particular. But there is as yet no public evidence that McCabe’s firing was anything other than routine application of FBI and DOJ practices and precedents.

So for now I’m going to withhold judgment on what I think are the two most important questions: whether McCabe committed the misconduct that the inspector general apparently found, and, if so, whether McCabe’s case was handled according to standard procedures.


Texas Opens the Midterm Primary Season

Texas held the first primaries of the 2018 midterm season yesterday, and you’ve probably read about a “surge” of Democratic voters. One especially potent indication of voter enthusiasm is that the number of early voters beat the previous record by 50 percent. Does this mean that Democrats can finally realize their recurring dream of “turning Texas blue”?

Not a chance. At least not this year. To see why, look at the state-wide races.

In addition to district-specific primaries for U.S House seats, Texas senate and house seats, and various judicial and other positions, Texans voted yesterday for a whole series of state-wide offices – U.S. senator, governor, lieutenant governor and various commissioners and judges. And way more Republicans voted than Democrats. Furthermore, the ratio of Republican to Democratic primary votes was pretty consistent across the range of state-wide primaries.

For instance, in the gubernatorial primaries, 1,537,868 Republicans voted, compared to 1,017,150 Democrats – roughly 50 percent more Republicans than Democrats. In the U.S. Senate primaries, 1,541,264 Republicans voted compared to 1,036,942 Democrats. The land commissioner primaries turned out 1,474,294 Republicans and 943,145 Democrats. The railroad commissioner primaries showed 1,368,077 Republican votes to 917,549 Democratic votes.

In other words, the only way the state-wide primary numbers are encouraging for Democrats is if Republican voters who opposed the primary winners vote overwhelmingly for Democrats in the general election. And even in that nightmare scenario, Republicans would do well. If incumbent Republican Governor Greg Abbott keeps only his 1,390,220 votes in the general election, and the Democratic candidate wins all other primary voters, whether Democratic or Republican, Abbott still wins re-election by almost 20 percent of the vote. Even Ted Cruz would win re-election in that scenario, although only by four percent.

That Republican “nightmare scenario” assumes constant turn-out from yesterday’s primaries to November’s general elections. But general election turnout is going to be higher, because general election turnout is always higher than primary turnout. So if yesterday’s primary turnout reflected an unusual surge of Democratic enthusiasm, then turnout for the Democratic primary may have been closer to the Democratic ceiling than turnout for the Republican primary voting turnout was to the Republican ceiling.

In any event, the state-wide races are not where Democrats should be looking for gains in Texas; it’s among the district-specific races that real gains can be found. For instance, in Dallas County alone, seven Republican state representatives hold seats in districts won by Hillary Clinton in the 2016 presidential election. Clinton won three Republican-held U.S. House districts in the state. These districts are Democrats’ real targets of opportunity in November.

With vote-counting almost complete in the 7th, 23rd and 32nd Congressional districts, Democratic primary voters in those races collectively outnumbered Republicans by 117,043 to 110,300. These are not blue districts, by any means – they are represented in Congress by Republicans, and Mitt Romney won all three of them in 2012. So Democratic victories are not assured. But if the midterm Democratic wave is real, these districts will be competitive, offering hope to Texas Democrats in 2018.

Undropped Shoes

An indictment typically comes in two parts. The first part is a factual narrative; the second part is a list of criminal charges against the defendant. The main purpose of the factual narrative is to state the facts that the prosecution must prove to convict the defendant on the listed charges.

So it’s a matter of interest when the first part of an indictment includes facts that are not necessary to the actual criminal charges. For instance, when a federal grand jury indicted Paul Manafort and Richard Gates last October, the indictment’s narrative included allegations that the defendants had evaded federal income taxes by disguising their income. Specifically, Manafort and Gates made “tens of millions of dollars” from their work for pro-Russian Ukrainians; they stashed the money in offshore bank accounts without declaring it as income; and they used the offshore accounts to buy stuff in the U.S.

But the indictment did not include any criminal charges of tax evasion. Some commentators picked up on this at the time, but as far as I know investigative reporters were unable to solve the mystery.

Until now.

Yesterday, four months after the initial indictment, another federal grand jury issued a new indictment against Manafort and Gates. This one includes lots of tax evasion charges – five against Manafort and eleven against Gates. Manafort and Gates are both charged with understating their income on their federal tax returns for each year from 2010 to 2014. Gates faces an additional charge of understating his income on an amended tax return he filed one year. And Gates is charged with assisting Manafort in falsifying five years of tax returns.

Tax fraud was not the only subject that was covered in the original indictment’s narrative but not in its charges. I noted at the time that indictment narrative included four paragraphs about bank fraud, but no criminal charges of bank fraud. Once again, the new indictment solves the mystery.

The new indictment includes nine new counts of bank fraud committed by Manafort and Gates against three different unnamed lendors. The gist of it is what was stated in the original indictment’s narrative: Manafort and Gates made false representations to American banks to obtain loans to Manafort. For instance, to get a bigger mortgage loan from one bank, Manafort and Gates falsely represented to the bank that the property to be mortgaged was used as a second residence, when in fact it was used as a rental property.

Even with all the new charges in the second indictment, there are still a lot of unanswered questions – the “undropped shoes” of my headline.

For starters, both the original and the new indictments include an uncharged allegation of bank fraud. The first instance of bank fraud alleged in both indictments’ narratives relates to a mortgage Manafort obtained on a Brooklyn property. The allegation is that Manafort was able to get a bigger mortgage loan on that property by falsely representing that he would spend part of the loan on construction that would increase the value of the property. This is the only instance of the six instances that included in the indictment narrative that is not included in the indictment charges.

Both indictments allege that Manafort and Gates used foreign bank accounts to hold the “tens of millions of dollars” they made from their representation of pro-Russian Ukrainian interests. Both indictments specify that “more than $75,000,000 flowed through the offshore accounts.” The original indictment accounted for only about $21 million of that $75 million – $18 million that Manafort used to buy real estate, goods and services in the United States, and $3 million that Gates used for purposes not specified in the original indictment.

The new indictment accounts for about $30 million of the $75 million. The new allegations are that Manafort, in addition to using $18 million in offshore funds to buy real estate, goods and services, drew about $10 million that he disguised as loans, to shield the funds from income taxes; and that Gates took his $3 million as transfers to five different bank accounts in the United Kingdom and the United States.

Still, that leaves more than half of the $75 million unaccounted for. If today’s New York Times report is correct that Gates is about to plead guilty and start cooperating with Mueller’s investigation, we may very shortly find out what happened to the rest of the $75 million.

Another undropped shoe is the identity of Manafort’s and Gates’s co-conspirators who are referred to but not named in the indictments. The bank fraud allegations in particular include a number of these references. In one instance, Gates altered a profit and loss statement for one of Manafort’s American companies to show more net income more than ten times greater than it actually was, for submission to a bank in connection with a mortgage loan application. The indictment alleges that Gates sent an e-mail about the falsification to “Manafort and another conspirator,” but the indictment gives no other information about the unnamed co-conspirator.

In connection with a different mortgage application, the indictment refers to “another conspirator” submitting application documents to the bank on Manafort’s behalf, and “a conspirator working at Lender B” – presumably two different co-conspirators in addition to Manafort and Gates.

There is every reason to believe that these co-conspirators are minor players in the overall drama, but of course we don’t know for sure, and in any event their identity remains an undropped shoe.

The money laundering allegations also refer to uncharged parties. The indictment alleges that the offshore bank accounts that Manafort and Gates used to hide their Ukrainian earnings were “opened by them and their accomplices.” The indictment gives no clues who the accomplices were, and it’s not even clear whether the “accomplices” (who were not called “conspirators,” for whatever that’s worth) were in on the criminal purposes behind the bank accounts. On the other hand, it’s possible that the “accomplices” were Russians doing Vladimir Putin’s bidding, and that the money laundering and tax fraud conspiracies were intended for more than just enhancement of Manafort’s and Gates’s personal wealth.

There are other, even bigger undropped shoes. One is why Manafort needed so much money beginning in 2015. The indictment observes that Manafort’s and Gates’s Ukrainian income “dwindled” after the Ukraine’s pro-Russian president was ousted by its pro-Western parliament in February 2014, and that seems plausible enough. The indictment alleges that Manafort drew on offshore funds for purchases as late as November 2014, and for fake loans as late as 2015. Maybe the offshore funds just ran out.

In any event, the indictment charges that, beginning in “late 2015,” Manafort began applying for mortgage loans on various properties he owned. He got a $5 million loan in “early 2016,” a $3.4 million loan in March 2016, a $1 million loan and a $5.5 million loan later in 2016, and $16 million in two separate loans in July 2016 and January 2017. That trajectory implies that Manafort’s financial needs grew substantially after his Ukrainian income “dwindled.” It also implies, of course, that Manafort and Gates continued to commit bank fraud while they were working on then-candidate Donald Trump’s presidential campaign, and continuing at least through the post-election transition, into January 2017.

A closely related undropped shoe is why Manafort was willing to work, first as Trump’s chief delegate wrangler, then as his campaign chairman and manager, for no pay. Manafort approached Trump about it at the end of February 2016, and he started work the next month. It’s at least odd that someone in need of money would volunteer for unpaid full-time work. It’s even odder since nobody expected Trump to win the nomination, much less the election, back in February 2016 – unless, that is, Manafort knew something no one else knew at the time.

It’s also still not clear why Trump agreed to hire Manafort, even for free. It’s true that Trump’s campaign was having trouble attracting quality experience, since one of the cornerstones of his campaign was the denigration of the entire Republican Party establishment. (This is the same reason that Trump had to resort to unknowns like George Papadopoulos as foreign policy advisors in March 2016.)

When Manafort left the Trump campaign in August 2016, it was supposedly because the Trump campaign had become uncomfortable with Manafort’s work for pro-Russian Ukrainians. But Manafort’s Ukrainian work was well known when Trump took him on – it was reported at the time in the New York Times. So the campaign’s claim after Manafort left that Manafort “apparently didn’t tell them what he was doing” seems disingenuous.

Even if there are plausible innocent explanations why Manafort might be eager to work for the Trump campaign, even for free, even while he desparately needed money, and why Trump might agree to hire Manafort, despite Manafort’s lack of significant American electoral experience in the previous 20 years. But there is at least one plausible explanation that isn’t so innocent: Russian interests had leverage over either or both men and they used that leverage to get Trump and Manafort to accept each other.

My final undropped shoe for today is this: why has Manafort been so resistant to cooperation with Mueller? Manafort is 68 years old; the charges against him are easily sufficient to keep him behind bars for life; and at least some of the charges seem to be pretty iron-clad.

Again, there are plausible innocent explanations. Maybe he, or his lawyers, don’t think Mueller’s charges will stick. Maybe they think he can get a better deal at some later point in the case.

There is, unfortunately, a more disconcerting possibility. Manafort is presumably aware that Vladimir Putin’s government is widely believed to be responsible for large numbers of assassinations, mostly inside Russia, but including at least two outside Russia, in the United Kingdom. American journalists have accused Russian interests of committing assassinations across Europe and the Middle East, and have raised concerns whether attacks against Putin critics in the United States were instigated by Putin.

Manafort is certainly aware by now, even if he wasn’t during the campaign, of Russian manipulation of the 2016 election. Manafort may be concerned that Putin, having won the prize of a Trump presidency, will not allow Manafort to give information that could unravel that presidency.

Fear of death outweighs fear of life in prison.


What’s That Sound?

There’s somethin’ happenin’ here
What it is ain’t exactly clear
There’s a man with a gun, over there
Tellin’ me I got to beware.

Stop, children, what’s that sound?
Everybody look – what’s goin’ down?

There’s battle lines bein’ drawn
Nobody’s right if everybody’s wrong
Young people speakin’ their minds
Gettin’ so much resistance from behind.

Stephen Stills, For What It’s Worth (1966)

With a zeal and purity of purpose that only youth can bring to a cause, students of the Marjory Stoneman Douglas High School are doing something unprecedented in the tragic history of school shootings. Surviving students – teenagers, most of them too young even to vote – are leading a national movement for reform of our gun laws. They have adopted “never again” for the name of their organization, intentionally or otherwise labeling our epidemic of school shootings a holocaust, a crime against humanity. They are hell-bent to be the survivors of the last mass shooting.

Some of the students are strikingly articulate, remarkably capable public speakers. Stephanie Ruhle, of MSNBC, interviewed a surviving senior, David Hogg, the morning after the shooting, and was – in her own words on the air – “blown away” by his eloquence and by the sophistication of his call for legislative action.

Hogg spoke plainly, like a real person, without the circumlocutions that politicians give us. He pointed out that we have become inured to truly shocking facts, like the fact that our school children engage in “active shooter drills” as routine as fire drills. He pointed out that the shooting he and his sister had survived was the 18th school shooting in this country just this year. He brought us back to being shocked by facts that we had stopped being shocked by.

Hogg was interviewed on CNN two days later. When Alisyn Camerota asked him what message he wanted to send Congress, he was ready. He turned to talk directly to the camera, as if he had done dozens of TV interviews before, and he demanded action in place of useless talk about “thoughts and prayers.” Then he preemptorily devastated any politician who failed to act: “We’re children. You guys, like, are the adults.”

Perhaps most widely noted of Hogg’s classmates is Emma Gonzalez, whose speech at a “Not One More” rally just three days after the massacre was an inspiration. Gonzalez spoke for 12 minutes, mostly reading from a sheaf of papers she called “my AP Gov notes.” Her grief was immediate and palpable, as she repeatedly had to wipe tears from her eyes so she could keep reading and keep speaking. Her anger was also palpable.

Gonzalez opened with a condemnation of our politicians’ inability to move from “thoughts and prayers” to action to protect children from mass murder. Parkland’s survivors had to be there instead of home grieving, she said, “because if all our government and President can do is send thoughts and prayers, then it’s time for victims to be the change that we need to see.”

Gonzalez contrasted countries where mass shootings are rare to the United States, where mass shootings are so common that there is a Web site that compiles lists of them. She insisted that, regardless of shooters’ mental health, the frequency of mass shootings is not solely a mental health issue, but is also a gun issue.

Gonzalez turned to the NRA, calculating that the NRA’s contributions to Donald Trump’s presidential campaign amounted to $5,800 for each American shooting victim during 2018 alone:

“Is that how much these people are worth to you, Trump? If you don’t do anything to prevent this from continuing to occur, that number of gunshot victims will go up and the number that they are worth will go down. And we will be worthless to you. To every politician who is taking donations from the NRA, shame on you.”

Gonzalez concluded with the most powerful passage in her speech. She accused “the people in government” of lying about gun violence. She said that it seems to fall to high school students, to children, to call out the lies. Then she laid out a series of those lies, each followed by the Never Again response:

“Politicians who sit in their gilded House and Senate seats funded by the NRA telling us nothing could have been done to prevent this, we call BS. They say tougher guns laws do not decrease gun violence. We call BS. They say a good guy with a gun stops a bad guy with a gun. We call BS. They say guns are just tools like knives and are as dangerous as cars. We call BS. They say no laws could have prevented the hundreds of senseless tragedies that have occurred. We call BS. That us kids don’t know what we’re talking about, that we’re too young to understand how the government works. We call BS.”

The children, the high school students who survived the Parkland massacre, understand something that adult gun control advocates have not understood. We have gotten lost in arguing the factual merits of the NRA’s ever more bizarre claims about the futility of gun control. I’ve personally fallen down that particular rabbit hole – for example, after Micah Johnson shot 14 armed, on-duty Dallas police officers, I argued that surely this incident should put to rest the NRA’s lie that “the only way to stop a bad guy with a gun is with a good guy with a gun.”

The Never Again students’ approach is better: instead of disproving each lie in what is an unending stream of lies, the students just “call BS.” We know they’re right. We know the lie is a lie. We know that legislators could decrease the frequency of mass shootings, and we know that legislators’ excuses for not legislating are lies. Huge majorities of Americans agree on some basic stuff like universal background checks for gun and ammunition buyers; barring gun purchases by violent criminals, convicted stalkers, suspected terrorists and the seriously mentally ill; and banning assault weapons and high-capacity magazines.

Today the students are in Tallahassee to meet with Florida state legislators and demand action instead of “thoughts and prayers.” On March 24, the students are going to march on Washington to demand action from federal legislators.

There is something happening here. Our children are leading us because the adults have failed. Our children have of necessity become proponents of their own protection, because the adults have failed. Our children are shaming us for our failure.

I say, let’s follow the kids. Let’s follow them to Washington, to our state capitals. Let’s attend their rallies. Let’s join their movement, but let’s not try to take control of it. So far, the teenagers are doing a better job of it than we ever did.


Information Warfare Against the United States of America

There is much of interest in today’s 37-page indictment of three Russian companies and 13 Russian individuals on conspiracy and other charges in connection with the Russian campaign of interference with our 2016 elections. Perhaps the most breathtaking section of the indictment is paragraph 10c, which gives the lead defendant’s own description of its 2016 election interference campaign as “information warfare against the United States of America.” We can only hope that Special Counsel Robert Mueller’s deeply detailed description of Russian “warfare” against us will prompt our own Congress to give a little more priority to fighting election interference and a little less priority to fighting Mueller’s investigation.

Most Americans who aren’t in denial about Russian election interference probably assume that the interference campaign was approved, if not orchestrated, by Russia’s President Vladimir Putin. Today’s indictment doesn’t explicitly say so, but it includes a hint.

The defendant charged with managing the interference campaign is a Russian company called Internet Research Agency LLC. Two other defendants, Russian companies named Concord Management and Consulting LLC and Concord Catering, allegedly “controlled funding, recommended personnel, and oversaw [Internet Research Agency’s] activities.” The indictment asserts, essentially in passing, that the two Concord companies hold “various Russian government contracts.”

The indictment does not say another word about those contracts, but the implication is that the Russian government used the Concord companies to fund the interference campaign by Internet Research Agency and its employees. The indictment alleges that Internet Research Agency was a sizable company – for instance, the indictment says that, by July 2016, Internet Research Agency employed 80 people just in its “translator project,” which was the corporate division focused on social media. In addition to the translator project, the indictment mentions two other corporate divisions: a data analysis group and an IT group.

In announcing the indictment, Deputy Attorney General Rod Rosenstein felt compelled, in extravagant deference to his boss’s delicate ego, to emphasize “repeatedly” that the indictment does not allege that Russian interference changed the outcome of the election. But the indictment does outline a sophisticated, multi-faceted effort to influence the election outcome.

The Russian interference campaign was long in the planning – Internet Research Agency was registered as a Russian corporation in 2013, and by April 2014 the social media campaign was underway.

Defendants posing as Americans operated social media groups designed to attract American audiences, and they used viewing metrics to monitor the success of their efforts. They tracked the number of American viewers and the level of viewers’ engagement, such as likes, comments, and re-posts. The indictment mentions one social media group that attracted more than 100,000 followers – and, remember, there were 80 Internet Research Agency employees charged with setting up these groups.

Defendants used these social media groups to address divisive American political issues like immigration, to post derogatory and not necessarily truthful information about presidential candidates other than Donald Trump and Bernie Sanders, and to support those two. Beginning in 2015, defendants bought social media advertising and organized political rallies in support of their favored candidates. Posing as Americans, defendants communicated with American political activists to coordinate their activities, the obvious intention being to amplify their effect.

Posters received technical guidance on things like the ideal ratios of text, graphics and videos to use in posts, and they received feedback on the content of their posts – for instance, one poster was admonished for having too few posts “dedicated to criticizing Hillary Clinton,” and was instructed “to intensify criticizing Hillary Clinton.”

During the general election campaign, defendants undertook an effort to discourage African-Americans and Muslim Americans from voting at all, or to vote for Green Party candidate Jill Stein.

So yes, it’s true that the indictment does not allege that Russian interference changed the outcome of the election. What the indictment does allege is a well planned, well funded, long-term campaign of social media posting and advertising, supplemented by campaign rallies successfully promoted on-line. Political campaigns pay for advertising and rallies because it is universally believed that advertising and rallies influence voting – politicians all refer to it as “getting our message out.” The likelihood that no votes were influenced by the Russian campaign is nil; it is certain that the Russian effort had some effect, and it is impossible to measure how big that effect was.

Another notable aspect of today’s indictment is that it alleges no “collusion” – no knowing cooperation by any American with Russian efforts to influence the election outcome. On the contrary, the indictment alleges sophisticated and complex efforts by the Russians to present themselves as Americans. Internet Research Agency deployed some of their computers and other hardware in the United States, and set up virtual private networks that would appear to be American. They used faked American identities, or, in some cases, they used stolen identities of real Americans – consequently the indictment includes six charges of “aggravated identity theft.”

The indictment explicitly and repeatedly says that Americans who communicated with the defendants thought they were communicating with Americans, not Russians. In other words, the defendants’ efforts to conceal their Russian identities were successful. Of particular interest, the indictment alleges that members of the Trump campaign were among the Americans who unknowingly communicated with the defendants or others working with the defendants. The indictment doesn’t specify which Trump campaign members and it doesn’t detail the communications. Whatever communications the indictment refers to, it doesn’t refer to the Trump Tower meeting that Donald Trump Jr., Jared Kushner, and Paul Manafort took with a group of Russians including Natalia Veselnitskaya. Trump Jr. was told right from the start that he would be meeting with a “Russian government attorney.”

Partisans hoping this indictment would allege Trump campaign collusion with Russian interference will be disappointed. There isn’t a hint of collusion to be found, let alone an explicit accusation. This might mean two things. It might mean that Mueller’s investigation has found no collusion, or at least as yet has not produced sufficient proof of collusion to support criminal charges. It also might mean that this indictment is not the last indictment to come on the question of Russian interference.

Curiously, the indictment refers three separate times to a conspiracy among “persons known and unknown” to the grand jury. The unindicted conspirators are apparently Russian, or at least are not American, because the indictment alleges that “defendants and their co-conspirators” traveled to the United States to gather intelligence for their operation, and that “defendants and their co-conspirators” posed as Americans to communicate with American activists.

The indictment does not say why the known co-conspirators were not indicted. One reason is that they may be cooperating with Mueller’s investigation. It seems likely from the indictment, with its details about the corporate organization and personnel of Internet Research Agency, and its budget and finances, that Mueller had the benefit of inside assistance of some kind – although it’s possible that his investigators hacked into Russian computer systems. That would be poetic justice of a kind, I suppose.

The only other reason I can see for not indicting known conspirators would be that a further indictment is coming. If further indictments are in the works on the subject of Russian interference (as opposed, for example, to indictments for obstruction of justice), then it is possible that collusion might yet be charged.

Mueller’s history of integrity is top notch, so I don’t consider it plausible that he timed the indictment with political goals in mind. Still, the timing is especially apt. The scope and detail of the Russian election interference that he alleges are chilling, and, combined with the unanimous Congressional testimony this week by American intelligence chiefs that Russian interference with our 2018 midterms is already underway, the indictment commands serious attention and demands serious action. The indictment says that the Russians who ran the campaign of election interference regarded themselves to be at war with the United States of America, and declared warfare against us cannot be dismissed as an excuse by Democrats for losing an election.

Trump has worked hard to divert attention from the original purpose of the Mueller investigation, which was to determine the full extent of Russian election interference. Trump wants to re-cast the investigation as one into “collusion,” which enables him to attribute partisan motives to investigators. Today’s indictment is a forceful reminder that, whether there was collusion or not, the Russians hacked an American presidential election and we have done precious little about it.

Today’s indictment also carries an unstated charge. A government official who now persists in opposing the Mueller investigation risks the very harshest judgment that history can render, which is aiding and abetting a declared enemy of the United States of America.

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