A Criminal Conspiracy to Undermine Our Government and Our Country? Part I of II

After a year of nonstop coverage by the media, that Russia or Russians attempted to influence our 2016 elections by means of an internet and social-media campaign is probably accepted by everyone. The question we have had for Robert Mueller, a special prosecutor, is whether criminal laws were broken. He has now attempted to answer that question by having successfully convinced a grand jury to return an eight-count, 37-page indictment against three Russian organizations and thirteen Russian nationals.

The indictment and its impact have been described in apocalyptic terms. House Minority Leader Nancy Pelosi called for “a strategic plan to confront the Russians.” Republican senator Ben Sasse specifically blamed Vladimir Putin for “undermining Americans’ trust in our institutions,” and House Speaker Paul Ryan said that Russians had taken “aim at democracy itself.” The Washington Post editorialized that “Moscow staged an attack on the United States’ democratic political process,” and a Post columnist called it “the second-worst foreign attack [after 9/11] on America in the past two decades.” The New York Times asserted that President Trump needed to “focus on protecting his own country.”

Indeed, the language of the indictment itself lends support to such ominous statements. The indictment alleges that the object of the charged conspiracy was “impairing, obstructing, and defeating the lawful governmental functions of the United States by dishonest means.” The defendants are said to have “conspired to defraud the United States by impairing, obstructing, and defeating the lawful functions” of the Federal Election Commission and the departments of Justice and State. And in announcing Mueller’s indictment, Deputy Attorney General Rod Rosenstein said that “the Russian conspirators want to promote discord in the United States and undermine public confidence in democracy.”

Preliminarily, let it be noted that the indictment contains no allegation charging any American, including any member of the Trump campaign or administration, with any criminal act. It contains no allegation charging any agent or agency of the Russian government as being involved in any criminal acts against the United States. The indictment does not state that the acts of the charged Russians changed the outcome of the 2016 presidential election. There is no claim that any voting lists or machines were compromised.

Count One, the principal count, charges three private Russian organizations and thirteen Russian nationals with a grandiose conspiracy “to defraud the United States,” that is, the entire federal government—or even, perhaps, the country itself. But no effective result, outcome, or consequence of that conspiracy is alleged. And unlike the normal criminal conspiracy, no other statute is alleged to have been violated as the “object” of that conspiracy.

The alleged substance of Count One is that the Russian defendants had a “strategic goal to sow discord in the U.S. political system.” To accomplish that goal, they “posted derogatory information” about a number of candidates and by “early to mid-2016,” they began to support the presidential campaign of Donald Trump, while “disparaging” the campaign of Hillary Clinton.

Count Two of the Indictment charges fraud based on the breach of the security system of the private money-transferring business, PayPal. Counts Three through Eight charge Russian nationals with stealing and using the identities of six Americans. The word “collusion” does not appear in the indictment.

A Rare and Unprecedented Conspiracy

A “conspiracy” is an agreement by two or more persons to commit a crime together with some overt act to carry out that agreement. The law of conspiracy changed. 18 U.S.C. 371, has two versions. Its normal and most-used version, conspiring “to commit an offense against the United States,” is used to charge a group of people with conspiring to break another law (the “offense”), for example, conspiring to commit tax fraud or conspiring to distribute illegal drugs.  In this version of conspiracy, the other law that is the object of the conspiracy has to be stated in the indictment. So long as the indictment alleges the agreement of two or more persons and a minimal number of overt acts, the rest of the indictment normally goes on to allege facts and events that prove the essential elements of the law constituting the “offense” that is the object of the conspiracy. And almost always, a conspiracy indictment of this kind would also charge individual violations of that same law that is the object of the conspiracy.

The other and much-less-used version of the Section 371 statute has the sweeping and indefinite purpose of prosecuting a conspiracy “to defraud the United States, or any agency thereof,” and the means and object of the conspiracy may be “any manner or for any purpose.” This is the conspiracy charged in Count One of the Mueller indictment. In this version of conspiracy, no additional law that is the object of the conspiracy need be referenced, and Mr. Mueller references none. As for “any agency” defrauded, the indictment mentions the Federal Election Commission and the Departments of Justice and State as agencies “charged with enforcing” federal election laws and the registration of foreign nationals.

However, concerning specific federal election laws, the indictment contains no separate counts charging any Russian nationals with violating the prohibitions against election contributions or expenditures. Nor does it charge any separate count alleging that any person violated the laws concerning visas administered by the State Department. It charges no count of violating the Foreign Agent Registration Act (FARA), a law enforced by the Department of Justice.

Defrauding the United States and Its Government

In criminal prosecutions and in common understanding, “fraud” almost always means an intention to acquire or use money or property illegally. And there are several statutes prohibiting fraud against the government, for example, the statute at 18 U.S.C. 286 forbids conspiracies to submit a false claim to any federal agency.

So, what does it mean “to defraud” the entire United States government or “any” of its agencies?  The first thing to note is that this version of conspiracy, despite its broad wording, is still normally used to prosecute everyday offenses against the United States government involving money or property.

Nevertheless, the federal courts have clearly held—albeit with ambivalence about the legal principles—that the 371 statute protects the functioning of the United States government as a whole and any of its functioning parts.  The law dates from the Nineteenth Century and was originally and primarily designed to catch tax cheats.  In the still-relevant-precedent of Hammerschmidt v. United States (1924), the Supreme Court took on a challenge to the broad reading of the “defraud the United States” language and ruled that “it means primarily to cheat the government out of property or money.” The Court went on to rule that the language does include acts that “interfere with or obstruct . . .  lawful government functions” but even then, the Court stated, the offense must involve “deceit, craft or trickery, or at least by means that are dishonest.” Whereupon the Court overturned the Section 371 “defraud the United States” convictions of the defendants who had been charged with the general charge of “open defiance” of the World War I military draft, since their “open” deeds did not by definition involve deceit or trickery.  This kind of 371 conspiracy has nowadays  come to be known, based on a 1957 case, as a “Klein conspiracy.”

Recent cases have endorsed the broad reading of the broad language of Section 371. For example, the appeals court for the Second Circuit has stated that the law “is designed to protect the integrity of the United States and its agencies.” But in that case (United States v. Ballistrea), the criminal offense was regulatory and less than grandiose; the defendant was convicted of “defrauding” the Food and Drug Administration by conspiring to undermine its authority over the interstate distribution of drugs and medical devices. And the federal appeals court for the District of Columbia has endorsed the prosecution of an individual who conspired “to impair the functioning of the Department of Housing and Urban Development.” In that case (United States v. Dean), a HUD employee was convicted of the decidedly less-than-monumental purpose of corrupt management of and realizing personal gain from a HUD program.

But a newer case has cast doubts once again on broad applications of a conspiracy to “defraud the United States.” The case concerned the mundane crimes of developing and selling tax shelters, and thus the defrauded federal agency was the IRS. In United States v. Coplan (2012), the Second Circuit Court of Appeals issued a highly unusual decision in which it overturned jury verdicts based on the insufficiency of the evidence, rather than on procedural mistakes or erroneous trial court rulings. The Circuit, in an extended analysis, wondered if the “defraud the United States” language was unconstitutionally vague but deferred a definitive decision on that issue to the Supreme Court (which later declined to accept the case). Nevertheless, the Second Circuit went on to overturn two 371 conspiracy counts due to insufficient evidence.  In both of those reversals, the Circuit found that the totality of each defendant’s acts did not prove the necessary specific intent to “defraud the United States.” The Circuit also overturned three other related convictions based on other criminal laws.

In applying these principles to the indictment of the Russians, special prosecutor Mueller amply qualifies under the Hammerschmidt principle that a prosecution based on “defrauding the United States” should be based on deceit and trickery, since deceit and trickery is exactly what Mueller is charging the Russians with. However, whether the Russian deceit and trickery is actually a criminal fraud against the United States is another question, a question that a jury would ultimately have to decide.

Moreover, if this case were to progress through full judicial proceedings and levels, it would be up to the United States Supreme Court, having avoided the issue in the Coplan case, to take up full consideration of the fundamental meaning of “to defraud the United States” for the first time since Hammerschmidt. The difference in the facts and the stakes of the two cases can hardly be compared.  Hammerschmidt involved a group of people protesting the military draft a hundred years ago, whereas the Russian case is being publicly described today as involving the “integrity” of, a “foreign attack” on, and the “undermining of public confidence in” the United States and its government. Such matters have never been the subject of the criminal law, and no one has ever been prosecuted for or convicted of such a crime.

Reader Discussion

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on February 26, 2018 at 08:12:12 am

Very interesting piece and analysis of these conspiracy charges. Unfortunately, shy of trying the defendants in absentia, or of the U.S. conducting some sort of Mossadesque Nazi war criminal operation to snatch the defendants out of Russia, SCOTUS will likely never get to take up this 371 issue, at least not yet; but more importantly the American people are unlikely ever to know for sure if the charges have any actual merit, whether criminality has been assigned where it properly lies, and whether or not the real and greatest threat to our Democracy actually lies within the very government charged with upholding it.

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Paul Binotto
on February 26, 2018 at 14:53:16 pm

I suspect Mueller's purpose was not to *charge* any culpable persons with a *chargeable* offense but rather to gain time and seek cover for his investigation.

It would appear that Mueller needed to demonstrate some "progress" in his investigation.

Fresh meat for the media arm of the Democrat Party providing sufficient sustenance for their continued campaign against The Trumpster who, BTW, is absotively correct: The Russkies, and Old Vladimir, are "laughing their asses off at us."

Hey, I got it - Maybe the ultimate charge will be "that they are laughing their asses off at us!!!! - and that is not nice.

Then again, how about we take a different tack.

Given that our leftist friends seem to believe that anyone, anywhere in the world is provided protection(s) under the US Constitution, why can't the Russians claim that their use of derogatory information is PROTECTED under the First Amendment and, at worst, they could be subject to libel - nothing mopre.
How soon before the ACLU and / or some immigrations rights group takes up their case, I wonder

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on December 19, 2019 at 14:23:57 pm

You know , folks who see the obvious conspiracy of Democrats to blatantly , illegally undermine the 2nd amendment and all the rest after are not capable of seeing what Dems have made obvious to even the blind because they're all law graduates , nope they see it because it's there just as obvious as it is and factual . I don't know anything about this Russian election stuff ,since I didn't see any Russians that I'm aware of but I and about 300 million American brethren and sisters have all seen a conspiritorous group of traitor Dems disrupt , drag feet , do everything including incite violence on Americans , calling conservative supporters things only Nazis would call a nation of decent , concerned citizens , calling for violence upon them because they disagree ! Look y'all , the cats out of the bag , everybody knows what's going on , that this rogue gov is representing corporation and not liberty or America . It's illegap to undermine the IlUS Constitution and yet the Dems in Virginia are steady at just that , and without any consequences from law enforcement , but , it's not their consequences or rather lack of , that are going to be bad , it's the American public who are betrayed and not fooled by any of it that all guilty traitors should be concerned about . Dems , you guys are not fooling anybody but yourselves man , y'all are opening up that little box on hellraiser I'm telling ya .

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Notas blindasuthink

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.