Special Counsel Robert Mueller indicted foreign citizens for trying to influence the American public about an election because those citizens did not register as a foreign agent nor record their financial expenditures to the Federal Elections Commission. By that theory, when will Mueller indict Christopher Steele, FusionGPS, PerkinsCoie, the DNC and the Clinton Campaign? Mueller’s indictment against 13 Russian trolls claimed their social media political activity was criminal because: they were foreign citizens; they tried to influence an election; and they neither registered under the Foreign Agents Registration Act nor reported their funding to the Federal Elections Commission.
First, if Mueller’s theory is correct, three things make Steele a criminal: first, he is a foreign citizen; second, he tried to influence an election, which he received payments to do (including from the FBI itself); and third, he neither registered as a foreign agent nor listed his receipts and expenditures to the Federal Election Commission. Also, according to the FBI, along the way, Steele lied…a lot, while the dossier he disseminated contained its own lies based on bought-and-paid for smears from foreign sources reliant on rumors and innuendo.
Second, if Mueller’s theory is correct, three things make FusionGPS a criminal co-conspirator: it knew Steele was a foreign citizen; it knew, and paid, Steele to influence an election; and it knew, and facilitated, Steele neither registering as a foreign agent nor reporting his funding from the Democratic National Committee and the Clinton campaign to the Federal Election Commission.
Third, if Mueller’s theory is correct, then three things make PerkinsCoie a potential target: it knew Steele was a foreign citizen; it knew, and paid, Steele to influence an election; and it knew, and facilitated, Steele neither registering as a foreign agent nor reporting his funding from the Democratic National Committee and the Clinton campaign to the Federal Election Commission, by disguising its receipt of payments from the Clinton campaign as a “legal expense.”
Fourth, if Mueller’s theory is correct, then three things make the DNC a potential target: it knew Steele was a foreign citizen; it knew, and paid, Steele to influence an election; and it knew, and facilitated, Steele neither registering as a foreign agent nor reporting his funding from the Democratic National Committee and the Clinton campaign to the Federal Election Commission, by disguising its payments to Steele as laundered legal expenses to a law firm.
Fifth, if Mueller’s theory is correct, three things make the Clinton Campaign a potential target: it knew Steele was a foreign citizen; it knew, and paid, Steele to influence an election; and it knew, and facilitated, Steele neither registering as a foreign agent nor reporting his funding from the Clinton campaign to the Federal Election Commission, by disguising its funding of payments to Steele laundered through a law firm as a “legal expense.”
Don’t expect such an indictment. Mueller chose his targets because he knows they will never appear in court, never contest the charges, and cannot be arrested or extradited as Russian citizens. Mueller’s unprecedented prosecution raises three novel arguments: first, that speaking out about American politics requires a foreign citizen to register under the Foreign Agents Registration Act; second, that speaking out about American politics requires a foreign citizen list their source and expenditure of funding to the Federal Election Commission; and third, that mistakes on visa applications constitute “fraud” on the State Department. All appear to borrow from the now-discredited “honest services” theories Mueller’s team previously used in corporate and bribery cases, cases the Supreme Court overturned for their unconstitutional vagueness. The indictment raises serious issues under the free speech clause of the First Amendment and due process rights under the Fifth Amendment.
Robert Barnes is a California-based trial attorney whose practice focuses on Constitutional, criminal and civil rights law. You can follow him at @Barnes_Law.