The movie the Princess Bride was released when I was in college. While a good friend loved the movie because of its fencing scenes, I was more enamored with its tongue-in-cheek tone. To that end, my favorite line remains, “That word? I no think it means what you think it means.” That quote has been quite present in my thoughts as I think about Barr’s 4-page summation of the Mueller report, especially this sentence: “… the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.”
A non-lawyer reading that sentence will think the question has been definitively answered when in fact, it hasn’t. The reason is that the person writing the sentence is a very experienced lawyer who is using the word “conspiracy” from a legal perspective. For lawyers, the word has a very specific connotation that inherently references various underlying legal concepts. When Barr writes that the special counsel “did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government,” Barr is really saying, “Mueller couldn’t make a conspiracy case.” This does not mean there was no evidence. It most likely means there was insufficient evidence or the Mueller couldn’t make his evidentiary burden.
Let me explain what this means. The legal definition of “conspiracy” is derived from the Federal Criminal Codes, specifically 18 U.S.C. 371, which 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.
The word conspire is a transitive verb that means, “make secret plans jointly to commit an unlawful act.” It also implies an agreement, which is supported by the Special Counsel’s definition contained in Barr’s summation. An agreement means one party had to say (either expressly or tacitly) , “Let’s break the law” to which the other party said, “Yes. Let’s break the law.” To my business law mind, this looks very similar to the process of contract formation, or, more specifically, the process of offer and acceptance.
And here is where we run into our first problem with Mueller’s case. Counter-intelligence activities – like those the Russians engaged in – are far more subtle than an overt or tacit offer. Instead, they reside in the gray are of human activity to which we can apply multiple interpretations. For example, we know that Paul Manafort gave polling data to a Russian with close Kremlin ties. Mueller could argue that this was a clear sign of collusion, arguing that the only reason Manafort gave this data was to help Russians more effectively use social media to influence the election. But a good defense lawyer could argue that Manafort was simply passing along information to help the Russian develop a U.S. based business (or something else that was more plausible).
And that leads the second problem: the burden of proof, which is beyond a reasonable doubt. There are a number of ways to look at or explain this concept. I think the most effective is this: “can the defense offer a reasonable explanation of the activity.” If the answer is yes, then the prosecution will have a difficult time getting over this evidentiary burden. For example, suppose the Fed’s had a video recording of Trump sitting down with Putin and saying, “Pleas help me win the election.” That would be a great piece of evidence. But that’s not how the facts in this situation played out. Instead, there were multiple cut-outs acting as buffers between Russians and Americans. And, to my knowledge, we don’t have a clear smoking gun. Instead, we have a lot of behavior that a good defense team could spin any number of ways. This means the Mueller probably couldn’t hit his evidentiary burden.
Summing this up, let’s circle back to Barr’s statement, which states, “ … the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.” What he’s really saying is this:
- There was either no or insufficient evidence to prove an agreement between the various parties, and/or
- The prosecution couldn’t meet his evidentiary burden.
Now, let’s look at what we do know from public records.
- There were 100 documented contacts between the Trump campaign and various Russian parties
- Paul Manafort gave polling data to a Russian with Kremlin ties
- Roger Stone made contacts with Wikileaks through at least one and probably more cut-outs.
That’s a lot of “touching” between the parties. However, there was either:
- Insufficient evidence of those contacts. For example, what were they talking about? Was there a record of that conversation or are we relying on memory?
- A good explanation for the contact to create reasonable doubt
Ultimately, we’re left with this: Barr’s statement that there was “no conspiracy” probably means, that for some or multiple reasons, Mueller couldn’t make a case. This is why we need to see the full report.
However, we also know that team Trump did a lot of talking with a lot of Russians. We also know Trump associates lied a great deal about those activities, which is a sign of a guilty mind. And, Trump did everything he could to discredit Mueller – which, again, is pretty good evidence of guilt. It’s hard to look at those facts and still not be suspicious that something was going on.
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