By Karen Rubin, News& Photo Features
With House Judiciary Committee hearings beginning on the Mueller Report and the possibility the findings might trigger hearings to impeach Donald Trump, it is helpful to hear from Nick Akerman, who served as Assistant Special Watergate Prosecutor with the Watergate Special Prosecution Force under Archibald Cox and Leon Jaworski which ultimately led to the resignation of Richard Nixon. He is an expert on criminal and civil application of the Racketeer and Corrupt Organizations Statue (RICO), the Economic Espionage Act, the federal Securities Laws, the Foreign Corrupt Practices Act (FCPA) and State Trade Secret and Restrictive Covenant Laws. He also is an expert on computer crime and the prosecution of competitively sensitive information and computer data. Akerman, who appears regularly on MSNBC on subjects including the FBI’s ongoing investigation into alleged Russian tampering with US elections, recently opined on the comparisons between Watergate and Trump’s culpability during a talk on “The Critical Issues Confronting Our Nation” at Temple Emanuel of Great Neck. Here are highlights and some notes:
There is the obvious comparisons but differences: in Watergate, a bunch of American guys flew up from Miami, burglarized Democratic National Committee, took documents. A low tech operation and they got caught in a low tech way –they put tape over door and cop caught them. What was insidious about what happened [in 2016 campaign] is that it was a high tech operation against DNC, this wasn’t done by individuals in the United States but by Russians, sitting at computers in Moscow, hacking into DNC as referenced by fact 12 Russian intelligence officers were indicted by Mueller’s team.
In Watergate, we never knew what the burglars were trying to get; by the time they were caught, they didn’t get much.
Here, Russian operatives were hacking into DNC on multiple occasions, taking documents which they used and released during the course of 2016 presidential campaign that clearly had impact on what happened in campaign.
Back in Nixon era, had a conspiracy between Nixon and a foreign power in 1968 – which we didn’t learn about until 40 yrs later [so it never was part of the impeachment]- there was suspicion that Nixon had scuttled the Vietnam peace process during the 1968 campaign because he was concerned Johnson would settle and his lead over Humphrey would disintegrate –We learned later from notes of H.R. Handelman, that Nixon orchestrated it– that Anna Chenault interceded with the South Vietnamese government to keep them from coming to peace table. [As a result], Nixon make the war go on for four more years and some 26,000 Americans were killed (after 1968; 58,000 Americans altogether. Johnson knew of Nixon’s interference, confronted Senator Dirkson and said Nixon’s action constituted treason, but Johnson couldn’t release the information publicly, because would have revealed the US was bugging the South Vietnamese government]. Johnson was concerned that if he released that information that Nixon had interfered during campaign, it would appear that he was trying to throw the campaign to Humphrey.
In that, it sounds familiar: Obama was also concerned that it would appear he was exposing Russian interference to aid Trump in order to tilt the election to Hillary Clinton. [But it was also because when he presented the information to Senate Majority Leader Mitch McConnell, he refused to support it and Obama did not want to appear partisan.]
What Mueller said destroyed Trump’s claim of total exoneration based on Attorney General William Barr’s so-called summary of Mueller report. Mueller said, “If we had confidence the president clearly did not commit a crime, we would have said so.”
What kind of statement is that to make about the president of the United States? This is not a ringing endorsement of innocence by any means.
Mueller basically said he was tied to regulations issued by Department of Justice that don’t permit DoJ to indict a sitting president.
In Watergate, we didn’t have that problem [the rules governing Mueller as special counsel were very much constricted after the renegade Starr, and more constricted that the Nixon special counsel]. Archibald Cox was really independent, not part of DoJ, but careful to follow DoJ guidelines and regulations. When he was fired and Leon Jaworski came in, the staff believed Nixon should have been indicted but Jaworski overruled – in retrospect he was right – Congress was involved, the American public was being informed. His view: impeachment process was going on and he should provide evidence to the House Judiciary committee. So he could do the job. That’s not what we have today.
Mueller in his statement said it was also important to investigate a sitting president, to preserve evidence when memories are fresh and documents available. [Documents have already been destroyed, or kept out of the hands of investigators.)
What does that mean in prosecutor speak? Why is it important to investigate while the trail is hot? It might be that the people who conspired with the president could be prosecuted. More importantly, what he’s saying is that if the president committed crimes, the evidence should be put together, and if leaves office within statute of limitations (for obstruction of justice it is 5 years), so if leaves after one term, he is subject to being indicted.
[Some want to pass a law suspending the statute of limitations while a sitting president can’t be indicted, if that is the DoJ policy; note: that is only policy, not part of the Constitution or any law that prevents a sitting president from being indicted.]
[But because under the current policy, a sitting president can’t be indicted, that leaves the only remedy to Congress to impeach, especially since Trump has blocked evidence and witnesses.]
Mueller report lays out a complete trial for obstruction of justice- 8 instances of obstruction – any one of which anybody but a sitting president could be, should be, and has been convicted of.
There is a statement by over 1000 former DoJ employees and prosecutors (including me) who said precisely that: if this evidence were out there on anyone else, that person would have been indicted and convicted of obstruction.
For example, Trump requested [former FBI Director James] Comey drop the FBI investigation into [National Security Adviser] Michael Flynn – that purpose was to impede and stop the investigation.
Trump tried to stop Russian investigation by firing Comey – he admitted that to Lester Holt on tv and to the Russians [in the Oval office].
He tried to stop the investigation by firing [Special Counsel] Bob Mueller and asked [Attorney General] Jeff Sessions to limit the scope of investigation into Russian meddling in the election to only focus on future elections, and not 2016.
He attempted to influence and probably did influence his former campaign manager Paul Manafort to refuse to cooperate with Mueller, and that was extremely significant [because Manafort had such critical insight into what happened during the campaign, while Mueller was unable to get the Russians who were out of reach; recall Trump also jumped at the suggestion of handing over the former Ambassador McFaul in exchange for Putin extraditing the Russians, and allowing Putin to interrogate Americans Putin suspected of interfering in his election, like former Secretary of State Hillary Clinton.]
Trump publicly attacked his former fixer Michael Cohen and Cohen’s family, to intimidate him to not cooperate with Mueller investigation.
Why? Because there are practical problems with respect to charge anyone in the Trump campaign: the US doesn’t have subpoena authority in Moscow and other countries, so it is not an easy investigation. Whereas with Watergate, almost everything happened in the US, we could subpoena records, witnesses, and didn’t have to worry about foreign agents in foreign countries not subject to subpoenas.
But one huge problem: our federal criminal law does not address this new digital age. We had no problem in 1973 finding crimes – burglary was simple. Our laws have not kept up with new technology.
Page 167 of the Mueller report, right in the middle of the redacted portion relating to dissemination of stolen docs and emails from the DNC, right before the Democratic National Convention, is a whole series of emails disseminated by Wikileaks at the direction of the Kremlin to sow dissention of Sanders versus the Clinton supporters.
Within 30 minutes of the release of the Access Hollywood tape [in which Trump gloated over his ability to grab women by the pussy, because being a celebrity he could get away with it], Wikileaks, with the Russians, was releasing the Podesta emails to distract attention away. [It also came out simultaneously to Obama Administration releasing information of Russian waging a disinformation campaign on social media.]
This was pretty slick, sophisticated operation. But if you look at the Mueller report, it ruled out charges on the theory that trafficking in receipt of stolen property under National Stolen Property Act only covers tangible property, not intangible. Mueller couldn’t charge beyond reasonable doubt the crime of trafficking in stolen property, because it was data.
As for collusion, which is cooperation members of Trump campaign were cooperating in accepting this help. That is an important distinction, because of the difficulty in investigating crimes outside US – DoJ has no subpoena power in Russia, no ability to extradite Russians indicted for hacking into DNC or other Russians involved in use of social media to suppress Clinton vote – other major allegations –
[That makes no sense, since the government frequently prosecutes theft of intellectual property, which this was, and because it is illegal for a campaign to accept anything of value from a foreign country, which opposition research and social media campaign surely had value. They have the evidence that they could present at trial – even in absentia, if the Russians don’t want to defend themselves, that is their choice. But the evidence would show that Don Jr., Jared Kushner, Paul Manafort learned at the Trump Tower meeting that Putin wanted to help Trump win the election; that Manafort met on several occasions and delivered polling data that would help the Russians target enough communities in the swing states to suppress the Clinton vote and give Trump the 77,000 votes, across three states, that clinched the Electoral College. Kushner met with head of sanctioned bank and likely promised overturning sanctions; Michael Cohen and Felix Slater were negotiating the Trump Tower Moscow deal; Roger Stone was the intermediary with Wikileaks, and Wikileaks was working with the Russian hacker, Gucipher 2.0, and Michael Flynn met with Russians to guarantee that Trump would overturn sanctions.
[Here’s the thing: Trump, himself, probably only wanted to cement relationship with Putin for when he lost the election, but Putin saw the advantage in having a puppet in the White House who would overturn sanctions on Russian banks and businesses and individuals, promote oil and fossil fuels (the foundation of Russia’s economy) while dismantling the shift to clean, renewable energy; weaken US support of NATO, Paris Climate Agreement, and Iran Nuclear Agreement, break US as a global power while Russia and China become dominant political and economic powerhouses around the world including the Middle East, Africa and Asia. Trump may not have cared to win the presidency, but Manafort, Flynn, Steve Bannon, Roger Stone, Robert Mercer certainly did and were serving as agents of Russia. Meanwhile, other Trump-connected figures, like Broidy and George Nador, were working on behalf of Saudi Arabia and UAE and not only did Trump support their embargo of Qatar, where the US has its largest military base in the Middle East, but now is allowing Saudi Arabia to have the technology for high-tech bomb components.
[The fact that Putin and others knew about the private dealings, and who knows what from before, like money laundering for Russian oligarchs with Trump Organization properties and tax evasion, that made him and many of his aides like Michael Flynn all vulnerable to kompromat and doing Russia’s will.]
There are two buckets [of criminal activity]: the break in at DNC, hacking emails, stealing documents, while a group another group of Russian intel officers in St. Petersburg, was involved in social media disinformation campaign to microtarget Clinton voters and suppress their vote by passing fake news about Clinton – 13 Russian intel operatives were indicted February 2018 on this use of social media. [But what is not readily realized is how closely the Russian campaign dovetailed with the Trump Campaign’s social media disinformation campaign operated by Brad Parscale, now Trump’s 2020 campaign manager, who boasted about a disinformation campaign designed to suppress votes by women, blacks and liberals; Parscale was connected to Cambridge Analytica, a Steve Bannon/Robert Mercer entity, that linked up with Russia, and in England, was connected to the Brexit disinformation campaign. Facebook and Twitter had their own professionals embedded in Parscale’s office, while both social media giants were also disseminating the Russian bots.]
What we learn in Mueller report: Manafort provided [Russian agent Konstantin] Kilimnik with polling data multiple times, not just in cigar bar – but multiple times, on one occasion, in context of talking about battleground states, PA, MI, WI. If you take those three states with 66,000 votes among them, that’s how Trump won [the Electoral College]. So we have evidence, from [Rick] Gates (Manafort’s right hand man who revealed to Mueller), we have kalynick, Russian agent, getting polling data, talking about 3 states in particular, and Russians micro-targeting voters to suppress vote, but Mueller had to prove somebody in the Trump campaign engaged in conspiracy beyond reasonable doubt.
[Here’s the thing about surveillance and Trump’s charge of spying: they were monitoring the Russians and these encounters with Trump-connected Americans came up. Trump never said anything uncovered was untrue; to the contrary, his insistence that he must have been spied upon is proof that what they uncovered was accurate. The point of counter-intelligence is to determine if foreign agents have infiltrated or turned Americans into agents or moles, witting or unwitting “useful idiots.”]
The three states that elected Trump, on multiple occasions were talking about using data to send false news to potential Clinton voters, but what you can’t do is execute search warrant on St. Petersburg, pick up Russians for questioning. Mueller knew the key to investigation was Paul Manafort [so needed Manafort to turn and give evidence. That’s where Trump’s obstruction comes in, dangling the possibility of a pardon if he would just shut up].
In the end Mueller had a failure of proof because Manafort lied to him. When Manafort appeared before judge in DC, Amy… she found he lied about polling data [so why didn’t Manafort get more time, or have cooperation deal torn up?]. He was covering up the campaign; he was given 7 ½ years [a tiny amount of time for a guy who committed some $50 million in tax and financial fraud and basically was paying off his debts by selling out the country, essentially handing over secrets to a foreign power]. He was also indicted by New York State. The issue is whether at some point will he realize he doesn’t want to spend full 7 ½ years and cooperate – if he does, the Mueller team is no longer in place, so we are left with AG Barr who is basically a political hack for Trump and has done everything to paint rosy picture of Trump’s involvement, lied about what was in Mueller report, setting up situation for a month before the report was released, giving the impression Trump was exonerated by the report, when he wasn’t.
So it is an open question: what happens if Manafort decides to cooperate, if Roger Stone, right in the middle of dissemination of stolen documents, interacted with Gucifer 2.0, what happens if these people suddenly decide to cooperate? [More likely Barr’s DoJ will stop any investigation or prosecution altogether so the truth never comes out, the evidence is destroyed and Trump skates free.]
Impeachment, the “I” Word
That leaves us with the House of Representatives and the impeachment process.
Impeachment is a whole different animal – a political process not a legal process [I always hear that it is ‘political’ but what does that mean? Shouldn’t it be about Rule of Law, not about which party is in power?] The House doesn’t have to show evidence beyond reasonable doubt to start an impeachment case – doesn’t have to deal with same standard, but the House acts as grand jury, in doing so, brings charges, which then go to Senate, and it takes 2/3 of the Senate [67 votes] to remove somebody from office, based on impeachment from House. The obvious problem now is that 2/3 of Senate is not in any way, shape or form, going to remove Trump from office and the public is just not there at this point [which is why Trump and new fixer Rudy Giuliani have been undermining Mueller and the FBI, in the “court of public opinion”]. I totally believe Pelosi is correct, the public just doesn’t understand what Trump did.
[But it is chicken and egg- Trump has obstructed access to the evidence which would change public opinion and force the Senate to vote to impeach or else look like they support a criminal in the white House. In Watergate, the House finally was able to force Nixon to give over the tapes that damned him.]
Barr purposely muddled waters when he issued the ‘summary’ of the Mueller report – Mueller report over 400 pages, it is long and takes some background in knowing what happened beforehand.
The other significant document is the New York Times – the long [investigative] report they have done on Trump’s taxes. It is no coincidence Trump doesn’t want to turn over taxes – they go through that long history of tax avoidance, and what the Trump family did [and the fact he lost more money than any other American] – but if boils down to a long history of tax evasion – evading gift taxes, estate taxes, income taxes. Most of what was reported in the Times is passed statute of limitations, 6 years – but other matters.
[But here’s where impeachment would come in –not for a crime that is avoided because of statue of limitations, but shows unfit for office, unfit to be the one issuing tax policy, financial protections for consumers that he wants to overturn, shows he is vulnerable to blackmail from others who knows he committed tax fraud, bank fraud, lying to mortgage companies and insurance companies, as well as lying to the government, and the likelihood of money laundering, as well. These practices make him vulnerable to blackmail and collusion by anyone who knows, and the Russians could certainly have found those documents, like any other secret document. It’s like when an old drunk-driving offense is dug up during the campaign. But there are criminal financial practices that Trump apparently engaged in within the 6 years, and even during his time in office.]
In 2016 [during the campaign], we know that Trump sold two properties at 100 Central Park South, to son Eric for $330,000, even though the Trump Organization valued at $800,000 and $700,000, essentially passing assets not at true value, just like Fred Trump did to Donald to evade gift taxes.
Trump knows that the real vulnerability to him are the tax returns. Also, he doesn’t want the facts of Mueller report to be brought to life.
Keeping the Public in the Dark
One thing in Watergate: Cox was appointed in May 1973 and by June 1973, the Senate select committee was in full gear, there were TV hearings where people understood what happened, we had testimony that the burglary was connected to the Committee to Re-Elect the President (CREEP), John Dean [White House counsel] laid out the elaborate obstruction of justice plot, the hush money to Watergate burglars – so as of summer of 1973, the public was pretty well educated.
[But Watergate was essentially one crime at the center, the burglary, when Trump campaign involved many different illegal, unethical activities, including the tacit agreement with the Russians that would overturn sanctions, which motivated the Russians to commit crimes on Trump’s behalf, which Trump encouraged, egging on the release of Wikileaks, for example. In some ways, Trump committed his offenses in the open, including saying on TV he fired James Comey because of the Russia investigation giving the impression, ‘how could it be illegal if he does it openly.’ But many more are surreptitious and convoluted. But Trump is already named as Individual Number 1 in campaign finance violations, which had it been any other president, would have been sufficient on its own to initiate impeachment.]
We haven’t had that. Prior to the new [Democratic-controlled] House, it was controlled by Republicans who kept everything out of the public [except when Nunes forced the release of FISA materials, intending to signal to intelligence officers to back off], the Senate didn’t do anything in public. What has to happen now has to be to bring the Mueller report to life: get McGahn [and Hope Hicks, Don Jr., Steve Bannon, Roger Stone, Jared Kushner] to testify; these are people who worked at the Trump White House or still do, who have already provided testimony to the Mueller team.
One of things Trump administration tries to do – same as Nixon – is to stonewall. By not providing witnesses, documents. The recent court rulings are significant – tax returns. Most significant in last the 10 days is that New York State can provide tax returns to the House committees, and NYS tax returns mirror the federal returns.
Federal statute requires treasury to produce tax returns [What makes you think was Trump submitted to State jibed with Federal return?]
Where this is going will be a road to slog – court actions, committees – their job is to bring life to 435 page report that most American don’t have time or inclination to read.
[Why stonewall? First place, to diminish the weight of the charges; second, to push the process into the election campaign so he can argue that it is only political, and get the DoJ to impose its policy, which Comey conveniently ignored, of indicting or prosecuting someone during a campaign. That’s why there was a hiatus before the 2018 election.]
Around same section, p 176 –there is a prosecution decision Mueller explains that’s redacted –about whether or not to charge federal computer crimes statute. But just as the same as Russian intel officers who had hacked, Mueller concludes he doesn’t have enough evidence. The statute is computer fraud and abuse statute – hacking statute – the only reason to charge anybody would be if he were actually involved in the hacking done by Russians. We don’t know what’s under the redaction, but it is significant.
You can pick up bits and pieces. It is important that the public know about and be brought to attention.
AG Barr Muddies Waters
What Mueller writes about the law refutes that letter that Barr provided the White House and DoJ as a ‘job’ letter to be appointed as new AG. [It shows his ignorance of the law.] You wouldn’t want a first year law student to be writing, it’s just wrong. He says obstruction of justice doesn’t apply to anything other than a judicial proceeding which is wrong, the DoJ brings it up with FBI cases all the time. In Watergate, the principles in obstruction were charged with cover up of the FBI investigation, just like Trump did with Comey and Russia.
In the letter Barr provided to White House and DoJ [which is why Trump appointed him] Barr says that corrupt intent doesn’t apply because it’s an ‘amorphous’ statute. But there is a specific charge: simply acting with improper purpose to corruptly interfere, impede and obstruct a due administration of justice – straight forward. Yet Barr doesn’t buy into that. Barr was never a prosecutor, always a political appointee, and never tried a case. It’s disturbing for somebody who is AG supervising everyone else doing that.
Watergate was essentially simple, as you point out, and reduced to one crime, a two-bit burglary and a cover up – Trump’s crimes are many.
What about security of voting systems? If Russians can hack into the DNC (and voting rolls in 20 states), what protection is there?
That is a huge problem. The [Trump administration] has said we don’t have evidence Russians hacked in [to voting machines] but the systems are so antiquated, they don’t have means to capture audit trails to know if anyone did.
[The intelligence contractor Realty Winner is in prison for five years for blowing the whistle on the attempt by Russian military intelligence to attack U.S. elections, specifically by trying to “phish” more than 100 local election officials, which is not given the credit it should for opening the Russian investigation, separate and apart from George Papadoplous. See https://www.npr.org/2018/08/23/641229886/reality-winner-sentenced-to-5-years-3-months-for-leaking-classified-info. Meanwhile, Senate Majority Leader Mitch McConnell, who blocked Obama’s attempt to expose Russian meddling during the 2016 campaign, also is blocking House bill to modernize voting equipment.]
[Here’s the biggest problem: while the Constitution has a provision for Impeachment, there is no provision to review an election that has been stolen. You can have a criminal billionaire who pays hackers to flip switches to win the Electoral College, pay them a cool million dollars apiece to sweat out a year or so in jail, or pardon altogether.
[It’s circular – Trump will obstruct, stonewall, and don’t know that witnesses won’t destroy evidence, docs, tapes, unless there is impeachment inquiry.
[But I don’t understand the confusion over prosecuting for collusion – or conspiracy – when clearly, there were over 100 contacts between Trump, family, associates, campaign aides, and the Trump campaign benefited from the social media disinformation campaign to targeted districts, very possibly based on the polling data that Manafort supplied; from telegraphing his interest in lifting sanctions, weakening NATO, selling nuclear arms to Saudi Arabia, Japan and South Korea, and knowing (from the Trump Tower meeting with Kushner, Manafort and Don Jr) that Putin favored his election. It makes no sense that they can’t prosecute because data was stolen, not material, but data is intellectual property and it is criminal to steal intellectual property – which has value. So does the social media campaign waged by Russians based on Trump campaign’s own polling data, which by the way mirrored what Brad Parscale was doing – with an objective to suppressing turnout by women, blacks and liberals – who is now Trump’s 2020 campaign manager. And what about the Cambridge Analytica link which had Russia, Wikileaks (and Roger Stone), the Mercers and Steve Bannon and Brad Parscale’s fingerprints.]
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