Glad you stopped by, because I have some stuff for you that may ease some of your angst, and perhaps give you the “inside” on the reason Mueller has chosen to go about things in this order/manner. But, I’d be remiss to not say first, if you haven’t read my co-columnist’s take on things here, be sure to do that, too – because Murphy evaluates a completely different set of questions raised, ones every bit as important. Oh, and you can absolutely trust that Murph is right, because unbeknownst to Murph, National Intel Director Dan Coates went on TV late last night and said the same thing.
But, I want to address the legal points because that’s how I think, once one goes through law school, it takes years of counseling and meds to get “off” of the type of “thinking” they indoctrinate within you.
“Why is Mueller just indicting these Russian guys! They won’t even cross the ocean! What about the damn Americans! He has to know about them by now but hasn’t done anything!”
I hear it all the time, you hear it all the time. Part of you might also wonder “We know that Mueller is going to hang money laundering and tax evasion charges around Trump’s neck, so why not start there, because at least we’d avoid maybe a SCOTUS appointment.”
Well, friends, we all want Trump gone as soon as possible, but Mueller is experienced enough to know that when you shoot at the King, you better hit him. He knows enough to know that, though we all want Trump gone as soon as possible, we also wanna be sure he’s gone. Mueller wants to be sure he’s right. He also knows the legal trix I’m about to tell you.
Co Co Cons
Another thing you hear all the time, this time from Republicans is: “THERE IS NO CRIME OF COLLUSION, COLLUSION IS NOT A CRIME” well, folks, even that is patently false, because it violates campaign finance laws in a criminal way. But, you know and I know that it is very hard to get the American electorate’s ire up to 11 by charging someone with campaign finance law charges. Especially when the “collusion” involves some “crimes” that are a little more familiar.
Um, breaking into servers to steal information, akin to the Watergate burglary in every way, then using that information against your opponent, actually IS a crime that will get at least 55% of the American electorate’s ire to 11. Mine is at 12 already. Oh, they also broke into STATE electorate rolls, and stole personal information on 500,000 Americans. That ought to anger some folks, too.
And that, Zoomers – loyal and perceptive devils – is precisely why Mueller is laying out these indictments against Russians which are sure to be tried in abstentia and result in convictions. But, convicting Russians isn’t the end goal, you and I both know that. What Mueller knows is that having now laid the predicate crime in the most stark terms – breaking into computers, stealing information, releasing that information to win an election – Mueller need now only prove that certain Americans !) Knew of that plan, and 2) Did one affirmative act, even a non-criminal “act,” that assisted that endeavor, and guess what? He just convicted that American of conspiracy to the original charge against the Russians, making that American every bit as guilty for the original crime as the Russians.
Example. Your friend, whom for the purposes of this story we’ll call “Murphy,” has decided that he needs to rob a bank to help things out around the house. Murphy tells you. Being a smart zoomer, you note to Murphy that it is against the law to hold up banks. Murphy didn’t know that, but it doesn’t dissuade him. Murphy doesn’t have a car. He says, “Well, can you just give me a ride to the corner and drop me off?” You know that Murphy is likely to steal a car if needed, and since dropping someone off at a corner isn’t a crime, you agree.
Murphy is – of course – caught, because he’s a terrible criminal. (Fantastic writer, though.) The police note that he’s 22 miles from home and without a car and ask how he got there. He says “My friend Zoomer dropped me off because I asked for a ride just to the corner.”
Well, even though dropping someone off at the corner isn’t a crime, you might be charged as a co-conspirator, depending upon whether or not the police believe if you approved. Because giving someone a ride – though not illegal – sure looks like someone approves of the action, and it is a knowing act, thus you will share guilt with Murphy for robbing the bank. It’s called conspiracy, and it’s devastating in the hands of the right prosecutor.
This is also how they roll up the heads of crime families, they start with a devastating crime – like murder – and then go up the chain, finding innocent, but knowing – action along the way, that assists the person in that endeavor. The head of the crime family is every bit as guilty of the murder, even though he just paid bills – which isn’t a crime.
Mueller is setting his predicate crime, and it damn sure is not a campaign violation, and he is about to indict four Suburbans-worth of Americans to go along with it. THAT is why he is charging these Russians first.
“Conspiracy is Different.”
Ask any prosecutor what drives them most crazy about criminal trials, and each of them will note that it is the difficulty in getting “What the Defendant SAID” into evidence. As you know, Defendants do not need to take the stand. And the second you ask any witness, ever, “What did he say?” in criminal prosecutions, you cringe, because you know “Objection; calls for hearsay,” is coming and even when you ask about things the person witness knows, if they only know it because the Defendant told him, you will hear the same objection. (There are exceptions) It is SO frustrating.
When you are trying to put a very bad guy in jail, and you hear someone objecting to what that very bad guy said, your natural instinct upon hearing a hearsay objection is to turn and yell: “Yeah, kinda, but it’s really fking good hearsay everyone’s dying to know!” You might think that’s a powerful argument, but it must not work because I’ve never heard it said, and I have been told that if I ever said it, it would be the last thing I said in a courtroom for quite some time.
So, “Hearsay” when defendants won’t be getting up on the stand is one of the hardest things to plan around in any criminal trial.
Except conspiracies.
Because when a defendant is charged with conspiracy, it’s all about “what was said” among conspirators. That’s why Rule of Evidence 801 specifically excludes “hearsay rules” from all conspiracy trials.
You almost have to have prosecuted a case to appreciate just how powerful that howitzer can be, freedom to get entire conversations into evidence through one witness – almost always a witness who agreed to be “extremely open to questions” as part of an agreement to lessen their role? Ahhhh, lathers up prosecutors.
Having “What he said” in evidence has an impact that otherwise wouldn’t impact most trials. Most trials, it is best to leave your defendant sitting right where he sits, lest he have to face withering cross examination by top feds like Mueller, who – and please believe me on this – are so good you’d swear they are using Dark Arts along with that degree from Stanford and 30 years of experience trying cases exactly like the one you are involved with.
Once “what you said” is in evidence, you almost have to get up on that stand and try to explain why “what you said” and it isn’t so bad. THAT is just fine, it might help you. What might finish you is that once you’re done explaining yourself, someone very much like Robert Mueller stands up and notes he has a couple things he’d like to chat about. You spend the next 2 days feeling like you’re pinned down at the OK Coral, out of ammo, with very few places to hide, and an ace marksman has already hit you a half dozen times, and you will be back tomorrow because there is one more day to go.
Sooooo, that is why Mueller has started things off with these Russians, and didn’t just do the investigation and suddenly drop charges on Trump for money laundering, tax evasion, and campaign finance law violations. No, Mueller’s charge is to focus on Russia first, and then charge all those other felonies. It just so happens that Mueller is one of the world’s best prosecutors, and he knows each trick in the book, and how to bring a case that Trump’s lawyers start to feel ill about, knowing what they face.
Which can be extremely reassuring stuff when you’re a little worried about why the Americans haven’t gone down yet. So, thought I’d give you a bit of a hint.
*** But life is much better when an audience of extremely intelligent people is dropping hints on me, about anything, including good critical feedback, which I always appreciate when it’s done nicely, because it helps me, and shows someone cares. So, please follow along. It’s the weekend, which means we’ll be posting fun stuff beyond politics: @MiciakZoom
