***Jed Shugerman, law prof: Mueller team misread the law and missed the crime.***
Prof. Shugerman is not trying to diminish Trump's crimes, as some criticizing Mueller have done. Shugerman's afraid that the report uses a mistaken interpretation of campaign finance law and wrongly lets Trump off the hook on the issue of coordination.
And, as Prof. Shugerman points out, this mistake in reading campaign finance law will affect not just this investigation, but every election going forward. It will effectively green-light foreign interference that Congress, in a 2002 statute, specifically sought to ban.
https://www.thedailybeast.com/robert-mueller-missed-the-crime-trumps-campaign-coordinated-with-russia?ref=scroll&fbclid=IwAR2h3WMCRTUgsUKaRSDESYhXh6EP_n2Uk7PyGF3laKsYzTwtNzwOuiIMPMY
The DOJ’s initial appointment explicitly tasked Mueller with investigating campaign “coordination,” and it is not too much to ask that he get the law of “coordination” right. The report stated that “‘coordination’ does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express.”
However, Congress purposely sought to prevent such narrow interpretations: in 2002, it passed a statute directing that campaign finance regulations “shall not require agreement or formal collaboration to establish coordination.” The Federal Election Commission established the regulations for the implementation of the statute: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” with no need to show any kind of agreement.
Outside spending for coordinated communications is an in-kind contribution, and foreign contributions are completely prohibited. And Congress made the criminal penalties unmistakably clear: “Any person who knowingly and willfully commits a violation of any provision of this Act” commits a crime. The Supreme Court upheld these limits in McConnell v. FEC with crucial observations about the functional role of suggestions, rather than agreements: “[E]xpenditures made after a wink or nod often will be as useful to the candidate as cash.” This timeline is full of suggestions far more explicit than winks and nods.
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Mueller’s failures and omissions have another round of dangerous cause-and-effect. He is opening the loophole that Congress was purposely trying to avoid, and he is telling all the 2020 campaigns that these rules will not be enforced. Now Trump and his aides seem to think they have legal permission to openly do all of it again. Rudy Giuliani flagrantly tested these coordination rules in his political contacts with Ukraine officials. Given Mueller’s failure and Trump’s exploitation of that failure, it is now Congress’s duty to the public, the candidates under investigation, and future candidates to identify the law clearly, and to explain that some of this behavior was a civil violation, and in fact a criminal violation.
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