SOMETHING IS ROTTEN IN THE STATE OF DENMARK

Attorney General Bill Barr seems to be at it again. This time he is not only obstructing justice in defense of the President, but also in defense of himself.  I am of course referring to the July 25th phone call between the President of the United States and the President of Ukraine, Volodymyr Zelensky, in which Trump mentions Barr several times.  Clearly, this is a matter that screams for Barr’s recusal.  Equally clear, he will not recuse himself, knowing what happened to former Attorney General Sessions.  But that’s not all that’s troubling me.  What’s troubling me is how the Criminal Division of the Department of Justice decided—without even opening an investigation—that the phone call did not involve a violation of the Federal Election Campaign Act.  Remembering that Volume 1 of the Mueller Report dealt with this issue, I decided to use it as a guide to see if the DOJ made the right decision.  I don’t think it did.

First, the criminal statute, and then the Mueller Report’s analysis.

52 US Code §30121 Contributions and donations by foreign nationals states in relevant part in Subparagraph (a)(1)(A) that it is unlawful for a foreign national, directly or indirectly, to make an express or implied promise to make a contribution or donation of a thing of value in connection with a Federal election.  This is the part that applies to Zelensky.  Part (2) of Subparagraph (a) states that it is unlawful for a person to solicit, accept, or receive a contribution or donation of the type described in (A)(1).  That’s the part that applies to Trump.

Here is the actual text:

(a) Prohibition  It shall be unlawful for—

(1) a foreign national, directly or indirectly, to make—

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election

(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.

Before we address subparagraph (a) in light of the call, I would note that, according to the unclassified transcript of the phone call that was released to the public, the call lasted 30 minutes.  Yet it takes only about 10 minutes to read the entire transcript, so you can be sure there is more to the call than we’ve seen.  Notwithstanding that, I’ll base my analysis on what’s been released to date.  The question is:    Did Trump solicit something of value from Zelensky in connection with the 2020 election?  Yes, he did.  According to the transcript (emphasis added):

• ·        After exchanging some flattering remarks, Trump gets down to business.  He reminds Zelensky how much the U.S. does for Ukraine but “that it’s not reciprocal necessarily….”  [That’s about as close to asking for a quid to reciprocate a quo as I’ve ever seen.]

• ·         Zelensky agrees that the U.S. has been very helpful with defense and then says, “…[W]e are almost ready to buy more Javelins from the United States for defense purposes.”

• ·         And then comes Trump’s first solicitation.  He says, “I would like you to do us a favor though...” and proceeds to ask Zelensky to find the DNC servers Crowdstrike examined before the 2016 election and found to have been hacked by Russia.  Trump says he thinks they may be in Ukraine, and he offers to have AG Barr call Zelensky about that. 

• ·         And then comes Trump’s second solicitation.  Trump says, “The other thing. There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great.” 

So, we can put a big, fat, red CHECK next to paragraph (2) of subparagraph (a) of the statute, solicitation.  But how about paragraph (1)?  Did Zelensky promise something of value to Trump in connection with the 2020 election?  Yes, he did.  In response to Trump’s two solicitations, Zelensky says (emphasis added),

• ·         …my candidate will start as a new prosecutor in September.  He or she will look into the situation, specifically to the company that you mentioned in this issue [presumably Crowdstrike, but the full transcript might indicate Burisma, the company on whose board Hunter Biden sat].  The issue of the investigation of the case [according to the Whistle Blower Complaint, "the case" refers to Biden] is actually the issue of making sure to restore the honesty so we will take care of that and will work on the investigation of the case.

 So, we can also put a big, fat, red CHECK next to paragraph (2) of subparagraph (a) of the statute, a promise.  Bingo!  Promises solicited.  Promises made.  So why didn’t the Criminal Division at least open an investigation into the matter---aside from the obvious fact that Barr is running DOJ and is implicated in this phone call?  Is there any credible basis for the determination that there was no crime here? 

I don’t see any, but let’s give the Criminal Division the benefit of the doubt.  There are two other items to be checked in order to find a campaign finance violation.  One is in the criminal statute itself and concerns whether the solicitation and the promise involved “a thing of value.” The other is outside the criminal statute and involves intent:  Was there a willful, knowing violation of the Federal Election Campaign Act?

Let’s turn to the Mueller Report for some precedent. 

These two questions—Was there a thing of value? and Was there an intentional violation of the law?--were dealt with in Volume 1 of the Mueller Report.  The issues came up in connection with Don Jr.’s Trump Tower meeting in June 2016, the one where he took a meeting that President Trump said “anyone would take” in order to get Russian dirt on Hillary Clinton.  Mueller ultimately decided he couldn’t establish beyond a reasonable doubt that a violation of campaign finance laws had occurred in that meeting for two reasons.  One, he couldn’t prove that Don Jr. acted knowingly or willfully in violation of the act, and two, he couldn’t establish beyond a reasonable doubt that the Hillary dirt had a value exceeding $25,000, the threshold for a federal felony offense. 

But both of these elements of the crime are present in the Zelensky call.  There is a knowing, willful violation of the Federal Election Campaign Act here.  The Mueller investigation was widely reported internationally.  Zelensky would have had to have been living under a rock not to have known that a foreign leader must not promise to influence a federal election.  And contrary to what Rudy Giuliani and other Trump apologists might like to spin, this was not a promise by Zelensky to fight corruption in Ukraine for corruption’s sake.  It was a promise to help Trump defeat a potential political rival in exchange for the release of U.S. defense dollars that were likely necessary in order to complete the purchase of the defensive Javelins.    

But even if we give Zelensky a pass on knowingly or willingly violating the campaign finance act, because of difficulties of proof based on jurisdictional and evidentiary logistics, there is the intent of Trump.  His intent to violate the statute can be inferred from the inappropriate siloing of the call’s transcript in the separate computer system maintained by the White House.  Trump either ordered or knew about that burying of the call, which had it been “perfect,” there would have been no need to segregate it.  All by itself, and even without knowing more facts, the concealment is classic circumstantial evidence of a knowing violation of the act. 

As noted in the Mueller Report, Don Jr.’s knowledge of the illegality of accepting Hillary dirt at the Trump Tower meeting could have been proved by the attempt to conceal the purpose of the meeting.  The problem was that the concealment—the self-serving memo written on Air Force One that claimed the meeting’s purpose was to discuss Russian adoption—was written by people who did not attend the meeting and it occurred almost a year after the meeting.  That authorship and that time lag made it plausible in Mueller’s view that the cover-up was created for political, not legal, reasons.  It just didn't reach the "beyond a reasonable doubt" evidentiary standard.  That is not the case here.  The call was siloed immediately or shortly after it occurred,and it strains credulity to think that Trump was unaware of the siloing.  So we can put a big, fat, red CHECK next to knowing and willful. 

So, all that’s left now is the “value of the solicited promise” which has to exceed $25,000.   In the case of the Trump Tower meeting, Mueller couldn’t put a value on the Hillary dirt, partly because the Russians failed to deliver it.  He acknowledges that it surely had a value to the Trump campaign, but exactly what that dollar value was, Mueller couldn’t definitively determine. We do not have that problem in the Zelinsky call.  There was an unequivocal solicitation for opposition research.  There was an unequivocal promise to try to get it.  And there was an acceptance of the promise in the form of the subsequent release of the withheld defense appropriation. 

Bingo again!  We have jumped well over the $25,000 hurdle.  We know the value of the solicitation to Trump and the value of the promise to Zelensky.   It’s $400 Million of military aid that Trump had personally asked Rick Mulvaney, Director of the Office of Management and Budget, to withhold after it had been appropriated by Congress months earlier.  That was the value of the promise to Zelensky, and it was the value of the solicitation to Trump.  So we can put a big, fat, red CHECK next to a thing of value. 

Here’s a recap of the Mueller Report’s details on the Trump Tower meeting so you can make your own determination as to their relevance to the Zelensky call and how it’s different from the Trump Tower meeting.

In General:

The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting described in Volume I, Section IV.A.5, supra. The Office concluded that, in light of the government’s substantial burden of proof on issues of intent (“knowing” and “willful"), and the difficulty of establishing the value of the offered information, criminal charges would not meet the Justice Manual standard that the admissible evidence will probably be sufficient to obtain and sustain a conviction.

Requirement of “Knowing” and “Willful”(emphasis added)

On the facts here, the government would unlikely be able to prove beyond a reasonable doubt that the June 9 meeting participants had general knowledge that their conduct was unlawful. The investigation has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban or the application of federal law to the relevant factual context. The government does not have strong evidence of surreptitious behavior or efforts at concealment at the time of the June 9 meeting. While the government has evidence of later efforts to prevent disclosure of the nature of the June 9 meeting that could circumstantially provide support for a showing of scienter, see Volume II, Section II.G, infra, that concealment occurred more than a year later, involved individuals who did not attend the June 9 meeting, and may reflect an intention to avoid political consequences rather than any prior knowledge of illegality.

Thing of Value

These authorities would support the view that candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute a contribution to which the foreign-source ban could apply. At the same time, no judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law. 

The Zelensky call is different.  There was concealment at the time by, or with the knowledge of, a call participant.  This was not a voluntary provision of uncompensated opposition research.  It was coerced and it was compensated to the tune of $400 Million.  The stripped-down transcript alone was enough to warrant the opening of an investigation into the Zelensky call.  Yet the Criminal Division of the DOJ didn’t open an investigation.  Wow. 

As Marcellus said to Horatio in Act-1, Scene-IV of Hamlet:  “Something is rotten in the state of Denmark.”  The Department of Justice in the Trump Administration is a fish that is rotting from its head to its tail.

Keep it real!

Marilyn