If you’ve been hearing rumors that Special Counsel Mueller’s legal theory is novel, let Emma Kohse and Benjamin Wittes of Lawfare straighten you out:
The legal theory used by Special Counsel Robert Mueller turns out to be worth pondering in some detail, as it offers considerable insight into where he may be headed next. When news of the indictment broke, a number of commentators—including one of us—suggested that the legal theory was novel. On closer inspection, however, it doesn’t seem new. Still, the indictment is rather clever, drawing on a venerable and well-trodden theory of criminal liability in a fashion that Mueller may be able to leverage into a powerful instrument with respect to both foreign and domestic actors.
Let’s unpack it.The indictment works like this: It is a crime to conspire to “obstruct the lawful functions of the United States government through fraud and deceit.”
Etc in some detail. Their conclusion?
Which brings us to people on this side of the Atlantic—say, people who knowingly facilitated or participated in the distribution of emails through this mechanism or people who knowingly helped guide the activities of Internet Research Agency trolls. Such people might be inside or outside of the Trump campaign or organization. Their specific activities could all be, in and of themselves, perfectly legal. It’s an interesting question whether they would even need to know their interlocutors were Russian, much less acting at the behest of a foreign intelligence actor. As we read Mueller’s theory under §371, as long as they acted knowingly to join a scheme to deceive the U.S. government to frustrate its enforcement authority and took some action in pursuit of that scheme, they too would be guilty.
To be clear, without knowing details of the conduct of any specific individual, it would be irresponsible to speculate as to how a reasonable prosecutor would evaluate that person’s conduct with respect to this particular alleged conspiracy. For present purposes, our point is twofold: Mueller’s theory involves a well-established legal doctrine that has been deployed in roughly analogous situations, and it is potentially extremely powerful.
To be clear, Emma and Benjamin have no doubt that it is a crime to frustrate the organs of government from pursuing their statutorily defined goals, and anyone knowingly doing so will be guilty and dumped in the pokey.
Including, I suspect, the President.
