Law & the Courts

Fair-Minded Investigation or Partisan Witch Hunt?

Hillary Clinton speaks during a campaign rally in Omaha, Neb., August 1, 2016. (Dave Kaup/Reuters)
Mueller should investigate more than just the 2016 Trump campaign

Special Counsel Robert Mueller’s proxy prosecutor in New York City has obtained a plea agreement with Michael Cohen on some pretty slimy personal-business issues, and in the process, obtained pleas to two federal campaign-finance-law violations . . . that, from my experience as an attorney in the field, do not appear to violate federal campaign-finance law. That aside, maybe this means that Mueller might step out of his snipe hunt of an investigation of Russian “collusion” in 2016 to take an actual interest in whether there was compliance with federal campaign-finance law by both 2016 presidential campaigns, not just President Trump’s. If Mueller is actually concerned, as his designated prosecutor in the Cohen case apparently is, about compliance with the federal statutes setting limits on contributions and reporting of expenditures by campaigns, parties, and candidates, his interest is long overdue. There are several serious enforcement and prosecutorial undertakings awaiting his attention — none involving President Trump or his campaign.

Let’s start with the payments from the Hillary Clinton campaign and the Democratic National Committee (DNC) to Fusion GPS for the infamous dossier that triggered the entire Mueller investigation of “Russian collusion.” It is still not known how much the Democrats paid to Fusion GPS because that information has not been released, even though it was revealed almost a year ago that the source of payment was the Democrats. We should know the exact amount paid to Fusion GPS by the DNC and the Clinton campaign because all expenditures over $200 by parties and campaigns are required to be reported to the Federal Election Commission (FEC). However, the Democrats’ payments for the discredited dossier were falsely reported as “legal fees” paid to Perkins Coie, and not disclosed as to the actual vendor, amount, or purpose — as required by federal law. It is a federal offense to falsify an FEC report, which was obviously done in this case. Perhaps there is a conflict of interest for Mueller to investigate this matter, since it involves several of his own agents as potential witnesses, thus suggesting that the investigation of the Fusion GPS payments from Perkins Coie should be referred to the U.S. Attorney for the District of Columbia, in the same manner that Mueller transferred the Cohen case to the U.S. Attorney for the Southern District of New York.

It is a federal crime to make false statements to a federal agent, and Mueller has charged at least two persons associated with President Trump with that crime: Michael Flynn and George Papadopoulos. Fusion GPS and its founder, Glenn Simpson, should also be investigated and charged with making false statements to the FBI and congressional investigators, both in their Clinton-paid research paper that was served up to the FISA Court and in Simpson’s meetings with Bruce Ohr and others. As someone on the receiving end of Glenn Simpson’s lies, I’ll be happy to assist in the investigation of Glenn Simpson when Mueller decides to pursue him in the same way he has pursued others.

And now that we have the precedent in the Cohen case for federal intrusion into the heretofore sacrosanct attorney–client privilege, we are waiting for Mueller to swoop into the Perkins Coie law firm and seize the records of the Clinton/DNC attorney, Marc Elias. The firm was paid $9 million during the 2016 election by the DNC and the Clinton campaign, and the payments to Fusion GPS flowed through Elias and were falsely reported to the FEC as “legal fees.” We are waiting for Mueller to confiscate the Elias records just as he did Michael Cohen’s, so there can be a thorough federal investigation into the role Elias and his firm played in the dossier scandal. And once he gets into those records and files, who knows what other offenses might be uncovered? What’s good for the Michael Cohen goose surely is just as good for the Marc Elias gander.

Cohen’s guilty plea stated he violated federal contribution limits and reporting requirements with his payments of $25,000 during the 2016 calendar year to “silence” two women making accusations against then-candidate Trump (the plea agreement states that Cohen paid hundreds of thousands of dollars, but only $25,000 during 2016). The plea agreement does not once indicate or state that “Individual-1” (candidate Trump) was in any way involved in or aware of Cohen’s activities. That is an issue for another discussion.

The point here is that if Mueller is interested in unreported and excessive contributions to a 2016 presidential campaign, he can certainly accomplish that objective on a much grander scale in both the amounts involved and the scope of the conspiracy by turning his attention to the $84 million that flowed through the DNC in their massive scheme to completely evade the legal contribution limits to the Clinton campaign. Their misconduct is laid out quite specifically in a federal civil suit filed in May 2018 (Committee to Defend the President v. Federal Election Commission), making Mueller’s job fairly straightforward. Mueller and his agents could spend 30 minutes reading the complaint in that lawsuit and the memorandum of understanding prepared by Marc Elias for and signed by the DNC and the Clinton campaign (Elias represented them both) that gave Clinton control of the DNC’s finances, activities, and expenditures, as well as the millions of dollars in proceeds of joint fundraising by the DNC, state Democratic parties, and the Clinton campaign. These co-conspirators collectively engaged in the greatest campaign-finance scandal in history. Mueller has the opportunity to prove that his investigation is not a partisan witch hunt, as millions of Americans now believe. It will be interesting to see if he applies the same fervor to the Democrats’ 2016 campaign-finance violations and activities that he has applied to those of President Trump and his associates.

IN THE NEWS: ‘[WATCH] Trump Slams Justice Department’

Cleta Mitchell Cleta Mitchell is a partner in the Washington, D.C., office of Foley & Lardner, LLP, and a Republican campaign-finance attorney.

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