Betsy Woodruff, by far my favorite reporter from The Daily Beast, writes a breaking article coming out just this afternoon by the lawyers for the Russians charged in Mueller’s original conspiracy to defraud the United States. As my title makes obvious, their theory is these Russians had no idea they were violating U.S. law.
Please don’t think that most criminal law involves “knowing you were doing something illegal.” The key in almost all crimes is that you simply knew what you were doing. For example, it can be a defense if one believed they were speeding a man to the E.R. for a life-threatening condition, when in reality, and unbeknownst to the driver, he or she was simply speeding the guy away from the bank he just robbed. In that instance, the person would not really know “what” they were actually doing. Whether someone knows that giving a bank robber a lift is against the law doesn’t matter, you just need to know he’s a bank robber getting the ride. The defense is thinking you’re giving a sick man a ride.
But, these crimes involve election law, and election law may be a little different. It may be that there is some sort of “intent” (called “mens rea” by people attempting to sound smart) which involves knowing that one is breaking a law. I honestly don’t know which statutes apply, but I do know that the charging documents do accuse the Russians of “knowingly violating the law.” The defense that the of the people in the “fake news farms” didn’t know they were violating the law may work for a few of them, but almost surely not for the top dog(s), Putin’s close advisor (aka “Putin’s chef, who now is Putin’s G-man). The top guy who set the whole thing up likely had a pretty good idea why the job was “outsourced” to Russians. In fact, someone surely told him it was all illegal, if for no other reason than to ensure he used serious caution in setting it up.
It is a highly unusual argument to say the least. Of course, it is a highly unusual crime. Lawyers for the Russians say that Mueller failed to prove to the grand jury that the Russians were knowingly violating U.S. election law in an attempt to defraud the United States.
It is a long shot, even though they have a fairly sophisticated legal theory. The reason it is a long shot is that no one has to “prove” anything to a grand jury, one just needs to show that there is “probable cause” to believe that these people committed the crime – which means simply convincing the grand jury found “probable cause” to believe that the defendants knew they were violating the law.
The judge is far more likely to say; “That’s an issue for the jury at trial (presuming the crime includes the need to prove that one knows they are violating a law). There are many ways to prove that these people “knew they were violating the law. It can be by “inference” if there is no reasonable doubt that they were well-aware they were breaking U.S. law. Mueller has lots of evidence at his disposal to prove that any person with an I.Q. over 50 would figure out that what they were doing was against the law in the United States. The very fact that this had to be run secretly out of Russia ought to have been a pretty good clue. They had to use secret names. True, it would make it less believable if all the writers had Russian names, but once you start “faking identities,” that’s a pretty good indication you don’t want to be caught. And, I’m sure there’s much more, like some of them noting that their boss said at some point “do not tell anyone who you work for or what we’re actually doing.” Statements like that are often followed with “because this is illegal.” But even if the statement wasn’t, the “do not tell anyone” would “tell” most people they’re doing something “wrong.”
I cannot envision a scenario where someone so high up in the Kremlin that he is taking direction directly from Putin would not know that the whole plan violated U.S. law. That pretty-well takes care of the entire issue, because, really – all Mueller truly needs is one Russian who led the thing, not thirteen. If he’s got one, then he can join any American who “helped” any part of it become part of the conspiracy.
But, the “intent” question and federal election law is an interesting subject generally. Election law is so damn complicated that major campaigns employ high powered attorneys to oversee pretty-well everything. However, we also know that Trump ran the campaign on the cheap (how could he make a ton of money on it if he spent it on running?) and may not have had much legal advice telling his people – we’ve now moved to whether this could be a defense for Americans, and Trump’s people in particular – and some of them might-well try the: “We’re just so stupid we didn’t have any idea what we were doing was illegal.”
Criminal trials depend upon juries for fact finding, and there might well be plenty of “always Trumpers” happy to believe that the Trump people are just far too stupid to know they were in the midst of a conspiracy.
It likely won’t work. Try playing stupid to get out of the next felony you get charged with and let me know how it all shakes out. But, it is worth noting, and following. Ah, one thing, though, it will not help Trump, who – as the candidate, is responsible for knowing the laws applicable to campaigns. It won’t help Cohen, either, because everything the guy did screams “I’m going to prison if anyone figures out what’s really going on here.”