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Thoughts on the Mueller probe's indictment of Russians
I've been looking over the indictment and, from the standpoint of an appellate law practitioner with 40 years' experience, it looks like a PR gesture rather then the statement of a viable case, even if we disregard the fact that it indicts a bunch of people in Russia, who aren't likely to surrender to authorities, who acted in Russia, where the application of US law is doubtful.
Count One, the key count, (p. 4-5) charges conspiracy to defraud the US government ny impairing the functions of various agencies. This is a variation of the "honest services fraud" claim, that is, a claim that the fraud deprived the government of its right to honest services of its employees.
The application of the conspiracy to defraud to deprivation of honest services was disallowed in McNally v. United States, 483 U.S. 350 (1987), then (after Congress amended the statute to expressly include such a theory) narrowly allowed in Skilling v. United States, 130 S.Ct. 2896 (2010), where the majority held that the new statute could be saved by a narrowing construction that made it applicable only to certain pre-McNally case law - basically, theft via bribery or kickbacks. 130 S.Ct. at 2932-33. The indictment does not allege that either was involved. To be fair, I haven't compared the indictment in Skilling with the indictment here, nor considered whether the wording of the indictment affected the outcome. At the very least, Count One is doubtful.
The remaining counts are wire fraud and bank fraud. I can't speak to the latter, but with wire fraud (technically, use of the wire to defraud) the mail and wire fraud statutes speak of artifices "for obtaining money and property." 18 U.S.C. ยงยง1341, 1343. Cleveland v. United States, 531 U.S. 12 (2000) establishes that "obtaining property" within the meaning of these statutes does not encompass obtaining issuance of a government permit. McNally v. United States, 483 U.S. 350 (1987) establishes that the intangible right to honest government was likewise not property. United States v. Bruchhausen, 977 F.2d 464 (9th Cir. 1992) holds that under McNally, government agencies' right to conduct their affairs free from false statements is not property.
If the Independent Counsel's folks did their research, they must know that Count One is questionable at least, and the remaining counts look utterly invalid. Even if the Russians indicted booked flights back here to appear, and if a DC court were to conclude that it had jurisdiction over acts that occurred in Russia, the indictment would probably go down in flames. Which leaves only one explanation for it.
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A brief recap of past events:
1953: American and British spooks orchestrate efforts to overthrow democratically elected Iranian Prime Minister Mohammad Mosaddegh and seat Mohammed Reza Palavi on the Peacock Throne as the Shah of Iran. Foolishly, Mosaddegh wanted to audit Anglo-Iranian Oil Company (now absorbed into BP) and get a better handle on Iran's oil preserves.
1954: The CIA is involved in overthrowing left-leaning Guatemalan president Jacobo Arbenz, who wanted a better deal with United Fruit Company to benefit poor Guatemalan farmers. This action radicalized some guy named Che Guevera.
1950's-1960's: CIA operatives funnel millions of dollars to Japan's conservative "Liberal Democratic Party", which ruled the country for 38 years.
2015: Obama's State Department (under Secretary Clinton) send several hundred thousand dollars to Israeli organization OneVoice which used the money in an attempt to oust sitting Prime Minister Benjamin Netanyahu in that year's elections.
1838: James Fenimore Cooper publishes a book entitled "The American Democrat", in which he alludes to recently-exposed attempts by French partisans to alter the outcome of American elections.
There are other examples, easily researched and verified on the Internet (and we won't even talk about our involvement in Vietnam). This is nothing new, and, from what I have read, the latest "tampering efforts" were pretty benign compared to other activities in the past.
It's been said before: Politics is a blood sport. It's only now with our ignorance of our own (and world) history that the general populace falls for this kind of nonsense.
Thanks for the analysis! What about third count of "Aggravated Identity Theft" on pages page 34-5?
Fear you're spot on, David. Seems most serious legal scholars are laughing at the indictments, the equivalent, in their minds, of parking tickets.
DoJ prolly scared the accused Russians actually do show in USA Courts only to have the charges thrown out.