Briefly Noted: Confirmed - No 371 Conspiracy To Defraud The US Government

Is it OK to give myself a pat on the back every blue moon or so? Over a year ago I laid out what I believed to be the two most likely prosecutive theories that the Russia Hoax was predicated on (More On Mueller's Theory Of The Case). I returned to that theme just this week, with the difference that I was urging that this same prosecutive theory be considered by AG Bill Barr in bringing the Russia Hoax coup plotters to justice: Is There A Prosecutive Theory To Fit The Russia Hoax? The prosecutive theory in question would rely upon 18 USC 371 to establish a conspiracy "for the purpose of impairing, obstructing or defeating the lawful function of any department of government."

Well, today Paul Sperry confirmed that I had read Team Mueller's intentions correcting. Sperry tweeted (and his feed today is HOT) that buried in the Mueller Dossier is a passage that provides further exoneration for President Trump:

Paul Sperry‏

@paulsperry

Further exoneration buried in Mueller report: "The investigation did not establish any agreement among [Trump] Campaign officials--or b/t such officials & Russia-linked individuals--to interfere w or obstruct a lawful function of a gov't agency during the campaign or transition."

10:36 AM - 22 May 2019

Sperry is referencing 18 USC 371, Conspiracy to Defraud the US Government. A follower of Sperry helpfully added this image from p. 181 of the Mueller Dossier, which shows the several references to 371:

So there we have confirmed that Team Mueller was, indeed, pursuing that prosecutive theory. Team Mueller came up dry but that definitely doesn't mean that Team Barr wouldn't be able to turn this prosecutive theory to excellent use. The advantage of this theory is that acts that aren't in themselves criminal can become steps in furtherance of the conspiracy to "interfere with or obstruct a lawful function of a gov't agency during the campaign or transition"--and during the following two years.

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 ...