Is The Mueller Indictment A Joke?

Yesterday Special Counsel Robert Mueller issued an indictment against some sixteen Russian entities -- three companies and thirteen individuals -- for various things somehow related to "meddling" or "interference" in the U.S. elections of 2016.  A copy of the indictment can be found here.  This may be the most absurd indictment ever issued in the name of the government of the United States.

Ever since the Mueller investigation of Russian "meddling" or "interference" or "collusion" or something like that began a year or so ago, you have probably been wondering, What the heck is the crime?  Granted, there are 5000 or so supposed federal crimes out there.  Nobody has any good idea what all of them are, and plenty of them are so vague that they might criminalize brushing your teeth on an angle.  But still -- "meddling" or "collusion"?  How could such things even be illegal?

So probably you are thinking, the answer must be in this indictment.  Don't get your hopes up.  As far as I can tell there is nothing real about this indictment at all.

Start with the basics:  The defendants are all Russian citizens or companies.  According to the allegations, at least a few of the individuals were present in the U.S. for brief periods of time to commit wrongful acts, but there is no reason to think that any of them are present here today.  They are all in Russia.  Does the U.S. have an extradition treaty with Russia?  The answer is no.  So none of the defendants can be forced to come here to stand trial.  And if they can't be forced to come, they won't come.  Why would they?

And once you know you are putting together an indictment against someone who will never stand trial, you know that you will never need to prove the allegations.  So why bother sticking to anything remotely tethered to an actual crime, or for that matter, to reality?  You can throw in whatever you feel like!

What are the charges?  The big one is -- get ready for this -- 18 U.S.C. Section 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.

OK, what does that mean?  "Fraud" -- that's something coming out of the common law, with a detailed definition.  There has to be a false statement made to someone.  That person needs to have "relied" upon the false statement in taking some action.  The action needs to have harmed the defrauded person.  Think about "defrauding" the "United States," and you can easily come up with some clear examples.  You are doing a contract for the government, and they owe you $100,000, but you submit an invoice for $1 million, with false backup, and they pay it.  You have defrauded the United States out of $900,000.  

Is there anything like that here?  Not remotely.  The allegations are things like:  The defendants put up fake Facebook ads!  The defendants set up fake advocacy organizations!  The defendants held fake political rallies!  So?  Did anybody (let alone the U.S. government) get tricked into turning over money or property to these people under false pretenses?  Short answer:  No.

Ah, but our ever-reliable "Justice" Department has a theory from some old Supreme Court case law that any "obstruction" of some government function somehow falls under this statute.  Here on a Justice Department web page they have a quote from a case called Hammerschmidt back in 1924, written by then Chief Justice (and former President) Taft:

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.

And in fact that is the language that this "indictment" picks up on.  From paragraph 28:

The conspiracy had as its object impairing, obstructing, and defeating the lawful governmental functions of the United States by dishonest means . . . .  

But is that a valid statement of current U.S. criminal law?  First of all, how did the Hammerschmidt case come out?  Seems that Hammerschmidt and some others got convicted for handing out flyers advising young men how to avoid the draft during WWI.  Was that a "conspiracy to defraud the government"?  The Justice Department's web page, after the quote above, somehow fails to mention that Hammerschmidt's conviction was reversed.  From the case:

[The construction of the statute in prior case law] cannot be used as authority to include within the legal definition of a conspiracy to defraud the United States a mere open defiance of the governmental purpose to enforce a law by urging persons subject to it to disobey it.

And it's not just that they have way overstated this one case.  Those who follow recent Supreme Court case law, let alone this website, on the subject of criminal convictions under vague statutes, will be aware that the current Supreme Court is not at all sympathetic to prosecution efforts to expand vague statutory proscriptions.  See, for example, the reversals of convictions for so-called "deprivation of the intangible right to honest services" of Jeffrey Skilling in 2010 and Bob McDonnell in 2016.  The McDonnell reversal was unanimous.

In other words, the odds of the Supreme Court's 1924 Hammerschmidt dicta being good law today are about zero.  But don't worry, nobody's ever going to get tried under this absurd indictment, so none of this will ever be tested.

Let's list a few things that this indictment is not about:

  • Alleging actual real crimes.
  • Forming the basis for a criminal trial.
  • Bringing real criminals to justice and obtaining convictions.

OK, that rules out pretty much everything that any real indictment would be about.  So what could this one be about?  Maybe justifying a year or so of completely wasted effort with an unlimited budget by a supposed top-flight team of our best prosecutors?