If anybody, prior to the release of the Mueller report, looked good to get indicted, it was Donald Trump Junior, an idiotic chip off the old block that even the old block thinks is a moron, and architect of the famous Trump Tower meeting with Putin’s tricksters, the latter out doing a dangle for the GRU. There was Junior on email, rejoicing at the news relayed to him by a circuitous chain of cut-outs that the Russian government, Putin himself, wanted to help Pops win the election by spilling hacked dirt on Hillary: “If it’s what you say, I love it!”, said Donny. In writing. The master conspirator left a virtual paper trail (as did just about every other character in this clammy tale; I’m always reminded of Stringer Bell in The Wire, looking over during a meeting at a kid with a notepad and explaining, exasperated, that you don’t take the minutes of a criminal conspiracy).
Then, sure enough, Junior Dummy met with a Russian just a couple of floors below where Senior Dummy had his ass parked at that very moment, right there in the shiny tower that bears the family name, Manafort and Kirshner in tow, waiting for some lawyer named, almost comically, Natalia Veselnitskaya, to spill the beans (one assumes she reports to a GRU officer named Colonel Boris Badinnoff).* Junior was disappointed – this was just a dangle, a ploy to see who was willing to to do dirty business with the enemy (Russian SOP), and Ms. Veselnitskaya had nothing to offer. So nothing came of it – true. But Junior was there to get pilfered dirt on Clinton from a representative of a foreign adversary, and it isn’t supposed to matter that there’s no money in the vault when you knock over the bank. You’re still a bank robber.
It’s also not supposed to matter that you have no idea whether what you’re up to is illegal or not, so long as you’re consciously and deliberately doing the criminal deed. Yet Mueller let Junior off the hook, despite laying out the full details of how the law was broken, quite on purpose, by the younger Trump. Wrote Mueller:
This series of events [surrounding the June 9 meeting] could implicate the federal election-law ban on contributions and donations by foreign nationals . . . Specifically, Goldstone passed along an offer purportedly from a Russian government official to provide “official documents and information” to the Trump campaign for the purposes of influencing the presidential election. Trump Jr. appears to have accepted that offer and to have arranged a meeting to receive those materials. Documentary evidence in the form of e-mail chains supports the inference that Kushner and Manafort were aware of that purpose and attended the June 9 meeting anticipating the receipt of helpful information to the Campaign from Russian sources.
The Office considered whether this evidence would establish a conspiracy to violate the foreign contributions ban . . . solicitation of an illegal foreign-source contribution; or the acceptance or receipt of “an express or implied promise to make a [foreign-source] contribution” . . . There are reasonable arguments that the offered information would constitute a “thing of value” within the meaning of these provisions, but the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted “willfully,” i.e. with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation. (Emphasis added).
Now, as I’ve noted many times in this space, I’m a lawyer, and while I was never a criminal lawyer (you find yourself in a jam, you don’t get me on the phone, you find yourself a defence lawyer, and later if you want to sell three hundred million Class B convertible subordinated debentures in a private placement, then you call me), I took criminal law in school. I even won the criminal law prize. And one thing I remember is that when you’re committing a crime, it doesn’t matter one little bit whether you know you’re breaking the law. That’s not what ‘s required for mens rea, the guilty mind that grounds criminal culpability. You have to know what you’re doing, and mean to be doing it, that’s all. You can even think it’s perfectly legal – doesn’t matter. If, say, I think there’s a Criminal Code exception for “stealing while overcome by envious greed”, and make off with my neighbour’s Porsche in the conviction that the law is with me on this one, that’s tough luck for me. I’m a car thief. I knew I was stealing a car, I meant to steal a car, case closed. You’ve all heard the old sing-songy maxim: Ignorance of the law is no excuse.
So what does it matter that Don Jr. had no idea it was illegal to meet with the likes of Boris and Natasha to get dirt on Hillary?
At first I thought the press was just getting it wrong, keen to interpret Mueller in a way that facilitated headlines like Mueller Confirms: Donald Jr. Too Stupid to be Criminal. But no. Mueller expressly states that the stumbling block was proving that Junior acted with general knowledge of the illegality of what he was doing.
Curious, scholarly type that I am, I had to get to the bottom of this, and I looked up the relevant US criminal provisions, which you can find at 52 U.S.C. § 30121, combined with the enforcement provisions beginning at U.S.C. § 30109.
Here’s the problem: when it comes to the illegality of accepting electoral assistance form foreign nationals, US law sets up a standard of “knowingly and willfully”:
Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution or expenditure aggregating $2,000 or more during a calendar year shall be fined, or imprisoned for not more than one year, or both.
At first blush, this doesn’t appear to change the analysis – “knowingly and willfully” would seem to mean the same thing that underpins mens rea in nearly all other crimes, that you understood what you were doing and meant to do it. But in this context, Mueller seems to be interpreting “knowingly and willfully” to mean “deliberately violated the law, knowing the action to be illegal”.
From what I can find in an exhaustive, 15 minute survey of the internet, this seems to be a matter of some confusion in the case law. For example, you can find sources that could be taken to indicate that the phrase “knowing and willful” goes merely to knowledge of what one is doing, factually, like when I’m stealing my neighbour’s Porsche, without importing any additional requirement for knowledge of the law. Yet others state flatly that intending to break the law is the key. Here’s an example of what seems to be the traditional approach:
An act is done willfully if it is done intentionally, and with the specific intent to do something the law forbids.”[United States v. Greenup, 1999 U.S. App. LEXIS 12027 (6th Cir. Tenn. June 7, 1999)]
A specific intent to do something. My natural inclination is to read this to mean that you’ve intentionally done something the law forbids, but what matters is that you meant to do that thing, not that you knew it was illegal. Yet other courts seem to articulate with greater clarity that “willfully” means not “to intentionally do something, which something the law forbids”, but “to intentionally do something which the law forbids”, that is, to do something you know breaks the law:
Willful means “voluntarily and purposefully committing an act with the specific intent to disobey or disregard the law.” [United States v. Hoffman, 918 F.2d 44, 46 (6th Cir. Ky. 1990)]
The phrasing and use or non-use of commas and subordinate clauses make all the difference, a problem that besets all sorts of legal syntax and legislative drafting.
Mueller, clearly, is siding with the “knew what he was doing and further knew that it was illegal” school of thought, no doubt on the basis of superior knowledge to mine, and in that case, all you need to slip the grasp of the prosecutors is a general dumb-assed unawareness of what the law forbids. This seems, frankly, a piss-poor ground for innocence. It goes against the whole purpose of criminal law, which is to punish deliberate behaviour, whatever the perpetrator knows about the surrounding law. In this field we care about lots of subjective factors, like motive (as in the defences of duress and necessity), mental capacity (as in the insanity defence), and knowledge of the actual circumstances (as in the defence of “mistake of fact”, as when, hypothetically, the person found with cocaine was quite sure on reasonable grounds that it was just icing sugar). What we don’t care about is mistake of law. It’s supposed to avail you naught to exclaim “but I thought it was legal!”
Not this time. Not for Donny-boy.
So Junior skates. Like the headlines said, too stupid to be a criminal. Of course, if this was the general rule it’d be frickin’ anarchy out there, but luckily, the courts usually see it differently, and thus with respect to the more run-of-the-mill crimes the line is held. If he was still with us, you could just ask Antonin Scalia, who gave his full-throated support to the practice of imposing the death penalty on unfortunate perps so profoundly mentally disabled that they couldn’t possibly have understood the nature and consequences of their acts, much less the import of the laws that forbade them. In one horrible instance, the guy being strapped in asked if he could have ice cream after it was all over. That was OK. That guy could go to the chair. You start letting every dummy walk, just because he’s a dummy, and before you know it there’s no such thing as criminal punishment at all, right Antonin?
*Per Steve Bannon, quoted in Fire and Fury: The three senior guys in the campaign thought it was a good idea to meet with a foreign government inside Trump Tower in the conference room on the 25th floor – with no lawyers. They didn’t have any lawyers. Even if you thought that this was not treasonous, or unpatriotic, or bad shit, and I happen to think it’s all of that, you should have called the FBI immediately. Even if you don’t think to do that, and you’re totally amoral, and you want the information, you do it in a Holiday Inn in Manchester, New Hampshire, with your lawyers who meet with these people and go through everything and then they verbally come and tell another lawyer in a cut-out, and if you’ve got something you dump it down to Breitbart or something like that.