Sunday, May 19, 2019

Is There A Prosecutive Theory To Fit The Russia Hoax?

Let me get this out of the way right up front, because I don't want it to get buried down below: I owe a big hat tip to commenter Mike Sylwester. I'll explain.

Many observers of the Russia Hoax have expressed frustration that what seems in a common sense way to be a clearly treasonous or seditious conspiracy by the Obama Administration is not being discussed in that sense by legal conservative types. I've explained to several commenters that the Founding Fathers delibarately made these types of prosecutions very difficult, even going so far as to embody their restrictive views in the Constitution itself:

Article III, Section 3
1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

There were good historical reasons for this but, even as I maintained that these laws didn't fit the facts of the Russia Hoax, I had to admit that the alternatives were--to take a term from Bill Barr--"inadequate." Yes, it seems clear that various criminal statues have been violated, but none of them capture the full scope of what was in reality a broadly based conspiracy to subvert a national election or, failing that, prosecute a lawfare coup against President Trump by fraudulent means. Kim Strassel captures this big picture excellently ("A Searing Indictment Of The FBI"). To prosecute the perps of this massive subversion of our constitutional order as a nation on other charges seems, relatively speaking, a nickel dime affair when compared to the enormity of what actually took place over a period of years at the highest levels of the Obama Administration, it's Department of "Justice", and the Intelligence Community (FBI/CIA). "Inadequate," to quote Bill Barr again.

I was stewing over this when Mike Sylwester reminded me of 18 U.S.C. § 371—CONSPIRACY TO DEFRAUD THE UNITED STATES. And, better than just reminding me, Mike pointed me to the Department of Justices Criminal Resource Manual, which provides guidance on the application of criminal statutes by prosecutors. You can read the entire section on Conspiracy to Defraud the United States here, but I'll be quoting selected portions. As it happens, I've previously discussed 371 at some length as forming a possible theory that the Russia Hoaxers hoped to use against Trump. I'll append that discussion below, but suffice it to say that at that time I didn't find the theory far fetched as a theory--the problem was that Trump failed to oblige the Russia Hoaxers by engaging in a pattern of conduct that would match facts to theory.

So ...

Here's the text of 18 U.S. Code § 371, Conspiracy to commit offense or to defraud United States:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

Seems fairly non-descript, right? How does that apply to a coup attempt, or an attempt to subvert an election? Well, that's where the Criminal Resource Manual, with its citations of relevant case law, comes in. Check it out:

Although this language is very broad, cases rely heavily on the definition of "defraud" provided by the Supreme Court in two early cases, Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924). In Hass the Court stated: 
     "The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation." 
Hass, 216 U.S. at 479-480. In Hammerschmidt, Chief Justice Taft, defined "defraud" as follows: 
     "To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention."
Hammerschmidt, 265 U.S. at 188. 
The general purpose of this part of the statute is to protect governmental functions from frustration and distortion through deceptive practices. Section 371 reaches "any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." Tanner v. United States, 483 U.S. 107, 128 (1987); see Dennis v. United States, 384 U.S. 855 (1966). The "defraud part of section 371 criminalizes any willful impairment of a legitimate function of government, whether or not the improper acts or objective are criminal under another statute." United States v. Tuohey, 867 F.2d 534, 537 (9th Cir. 1989). 
The word "defraud" in Section 371 not only reaches financial or property loss through use of a scheme or artifice to defraud but also is designed and intended to protect the integrity of the United States and its agencies, programs and policies. [Case citations] Thus, proof that the United States has been defrauded under this statute does not require any showing of monetary or proprietary loss. [Case citations]


What acts might have been part of this particular conspiracy or coup attempt that we call the Russia Hoax? Well, the use of the Steele "dossier", knowing its highly dubious origins, will be highly suspect in any circumstance--such as using the "dossier" as the basis of an FBI Full Investigation, or obtaining FISA warrants, or ... authorizing a Special Counsel to lead a fraudulent inquisition of the POTUS! How about criminal leaks to the media? Yeah, that works, I think. Then there would be the setup and prosecution of people like Flynn and Papadopoulos--it was all in furtherance of a conspiracy to interfere with lawful government functions. Or so I would argue. And I'd argue that strenuously, even as I also pushed the individual criminal acts. I'd also probably want to argue that in addition to "impairing, obstructing or defeating the lawful function of any department of Government" we should also consider an intent to "pervert" the lawful function of any department of Government. "[B]y misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention."

Hey, look, I'm not a criminal law scholar and I'm open to other ideas, but this looks well worth examining as a prosecutive theory. And now, to show the uses to which the Russia Hoaxers themselves may have hoped to turn 371, here's what I wrote in More On Mueller's Theory Of The Case. Actually, what I'm appending is the second part of a longer post--the first part provides more context.


Now lets turn to the second theory, one which Team Mueller has actually used repeatedly: the claim of fraud against the United States. Just to be clear about what we're looking at, 18 U.S.C. § 371 makes it a crime for
two or more persons [to] conspire ... to defraud the United States, ... in any manner or for any purpose ...
According to the theory that Team Mueller has employed, apparently non-criminal acts--money raising scams of Russian bots on the internet, for example--can suddenly become fraud against the United States if they are performed by agents of a foreign power who have not registered as such with the DoJ. There's more to it, but that'll suffice for our purposes. This time, let's work this topic in reverse, so to speak.

In what possible way could Trump have committed fraud against the United States? By the very fact of allowing himself to be inaugurated as President of the United States.

How, you ask, could that possibly be construed as a fraud--surely there could be no more honorable and innocent act? Because in doing so Trump deprived the United States of its expectation of the honest services of a President who would uphold the duties of the office.


That's right. Because when Trump was inaugurated he failed to disclose that he's a puppet of Putin. An agent of a foreign power, in violation of the Foreign Agents Registration Act (FARA).

Puppet of Putin, agent of a foreign power--when did that occur? It occurred when Trump entered into that corrupt quid quo pro to exchange sanctions relief for "dirt on Hillary," or the release of DNC emails, or some other thing of value to his presidential quest. That opened Trump up to blackmail or, more politely, it opened him up to pressure to act in the interests of Russia rather than the interests of the United States. In other words, as an agent. Of a foreign power, and a uniquely evil foreign power at that. And I hope that reminds you of the absurd claims that General Flynn was blackmailable, too. Because if that, in the theory that Sally Yates advanced, made Flynn unemployable by the White House, what would it say about Trump as president? How "extremely careless" of Trump to place himself in such a position. Or was that "grossly negligent"--a term that seems to be reserved for Republicans?

So, voila, there you have it: Inauguration as President of the United States becomes ... fraud against the United States!

But didn't we already agree that none of that has been proven, and probably isn't provable at all? Even James Comey admitted, once again this week, that the Dossier wasn't verified before the Page FISA and it wasn't verified afterwards. Isn't it all just narrative--even worse, opposition research paid for by the Hillary Clinton campaign? Well, yes, but ...

Suppose we can find someone, pressure someone, who will say that Trump knew about that Trump Tower meeting? It may not be provable, not even chargeable, but it goes a long way toward forming a narrative with a veneer of plausibility. It's definitely smoke, given Trump's denials. And it would definitely be politically damaging: Trump, Putin's poodle; the GOP, the party of Russia.

To anyone who says, No, Jerrold Nadler would be ashamed to embody such a tissue thin narrative in articles of impeachment, I say: You haven't listened to what he--and many other Democrats--have been saying since the Midterm elections. And to anyone who says, No, the Senate Democrats would never push such an absurd concatenation of narrative, non-facts, unverified and unverifiable allegations, and sheer malice in an impeachment trial, I say: You weren't paying attention during the Kavanaugh nomination hearings.

UPDATE: As if on cue, Jerrold Nadler is talking about Trump "fraudulently obtaining the office [of President]." True, he's talking about making perfectly legal hush money payments to women, not failure to disclose that one is a poodle of Putin, but the idea of impeaching a President for "fraud against the United States" by becoming President is there. Clearly he's been studying Mueller's tactics closely. Unfulfilled campaign rhetoric? It'll all be fair game for the "fraud against the United States ploy."


  1. Likewise anyone who thinks there is no way the Senate will convict has not heard a word Never-Trump-Republican-Inc. has said since the convention of 2016. I would not be at all surprised for the impeachment to go forward and a conviction sometime late October 2020 (how hard will a campaign be under those conditions), or possibly after the Nov. election. If the President-Elect is removed from office can he be re-sworn as President? Which way would you bet John Roberts would vote on that? The Constitution says nothing about whether an officer, once removed by impeachment, can again serve but I think the "principled conservative" (sarcasm) consensus would be no.

    As to the other question: I believe that a charge of Treason, as defined by the Constitution, is entirely justified and supportable. If we view it as an act against the States, which the Founders would have, rather than a crime against a national government I believe it is defensible. These people did indeed attempt to nullify the political will of the States through coercion and threat of violence (once again I recommend reviewing the tape of Roger Stones arrest as well as the fabrication of process crimes to justify imprisonment) and that is the very definition of, "...levying War against them...". That they were all agents of the national government, that they did not assault the national government, or that success would leave that government intact are all irrelevant, their enemies were the States, which is precisely what the Constitution addresses. This was every bit as egregious as waylaying the Electors and compelling their vote would have been. This requires a clear, unambiguous indictment of the most serious kind. Anything less will be viewed/spun as technicalities or lawyer tricks to punish adversaries. Only a Treason indictment will demonstrate the gravity of the offense in such a way the American people can fully digest it, not to mention the national government's obligation to honor the sovereignty of the States, which the Electoral College is virtually the only remnant remaining. To do less is to cease to even pay lip service to the concept of Federalism.

    I do not believe that any part of this is academic. The acts were real, the intent was real, the results are real. The future of the Republic rests upon a knife edge.

    1. I totally understand where you're coming from. OTOH, I do believe that--except for Mittens--the GOP now understands to what degree their fortunes are tied to Trump. The fundraising alone tells the story. Trump has turned out to be a fundraising dynamo.

    2. Really, you don't think Republican Inc. would blithely cash The Donald's check while Romney. Burr, Collins et. al. share dagger sharpening tips with Dem's in the backroom? Mayor Pete sez that Orange Man staged a hostile takeover of the GOP and I think that is an accurate characterization of Rep-Inc's viewpoint to this day. The money is sweet, but revenge will be much more satisfying. Once restored to power the money will be theirs's again.

      Sex, money or authority all mean power, and where humans love power Reason, let alone Wisdom, cannot be found. When dealing with people I look to Shakespeare more for understanding than the WSJ Op-Ed page. Iago Lives!

    3. "Once restored to power the money will be theirs's again."

      "Once restored to power"? You're not serious, are you? When I referenced money, I was not saying that "money is sweet." Power is what Trump has given the GOPers, and they know that now. They can read the polls. Of course things can change, but for now ...

  2. Mark –

    I'm hardly a criminal law scholar either. But I would (perhaps naively) ask you and your readers to consider whether the conduct of the FBI (and perhaps other government agents) also invokes the federal criminal laws relating to conspiracy against rights.

    Section 241 of title 18 provides that

    "Section 241. Conspiracy against rights

    If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State …in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same…—
    They shall be fined under this title or imprisoned not more than ten years, or both … ."

    Section 242 of title 18 provides that

    "Section 242. Deprivation of rights under color of law.

    Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State… to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States … shall be fined under this title or imprisoned not more than one year, or both… ."

    According to an Overview of Selected Federal Criminal Civil Rights Statutes found on line (, these laws were enacted to address police misconduct, cover the actions of Federal law enforcement officers (and others), and protect all persons in the United States (citizens and non-citizens).

    There are four elements to establish offenses under this section:
    (1) the victim must have been an inhabitant of a U.S. state, district, or territory when the alleged violation occurred;
    (2) defendant acted under color of any law. Acts under “color of any law” include actions within or beyond the bounds of lawful authority. Screws v. United States, 325 U.S. 91,111 (1945)
    (3) the defendant’s conduct deprived the victim of some right secured or protected by the U.S. Constitution, including the right to be free from unreasonable searches and seizures. See, United States v. Langer, 958 F.2d 522 (2nd Cir. 1992)
    (4) the defendant acted willfully, that is, with specific intent to violate the protected constitutional right.

    So, why wouldn’t the actions of the FBI in obtaining an insufficiently predicated surveillance warrant against, for example, Carter Page, constitute the deprivation of Page’s constitutional right to be free from unreasonable searches and seizures?

    Punishable by a fine or imprisonment.


    1. I'm totally open to those arguments, especially because they resonate with the substance of the coup plot. Such violations fall easily under the capacious umbrella of 371 conspiracy to defraud the US government, as well.

      My purpose in this post is not to enumerate possible violations but instead to advance a big picture prosecutive theory that could gather all the individual violations under a common conspiracy to defraud the US government--which in the big picture, of course, is a fraud on We The People as well.

      Thanks for looking that up.