How to Get Away with Interstate Mail Fraud

On today’s podcast, David and Sarah discuss a host of thorny legal issues starting with ...

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On today’s podcast, David and Sarah discuss a host of thorny legal issues starting with an indictment against a lawyer who lied to the FBI when he alleged communications between the Trump Organization and a Russian bank. They then dig into a Second Amendment amici brief, a defamation case, and the issue of misleading headlines. Listen to the end to hear Sarah explain how to get away with murder (or somewhat less sensationally, how to get away with interstate mail fraud).

SHOW NOTES

Indictment:

U.S. v. Michael A. Sussmann

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  1. Avatar photo
    Angie

    Good pod, thanks....sorry I am late, been lots of stuff going on
    What I don't understand is that I read somewhere that they knew Sussman worked for Hillary even i he didn't say so?

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    Kristen L

    I’m curious what David and Sarah would think of shifting the view of Sussman back to 2016, and the knowledge we all had then. The Clinton campaign had been the victims of a crime and were the ongoing victims of a campaign against them by a foreign government. Sussman doesn’t know what to make of the Alfa bank stuff technologically but they can all plainly see something is funny about Trump’s insistence that it wasn’t Russia. Is he not supposed to take this to the FBI? Are victims of crimes not supposed to offer possible evidence to law enforcement?

    I encourage all to read this piece, because I think it’s really thought provoking. https://www.emptywheel.net/2021/09/22/john-durham-is-the-jim-jordan-of-ken-starrs/

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      Sarah Isgur vertical-nib Author

      They absolutely are supposed to go to the fbi…and tell the truth. There was nothing wrong with him representing his client and turning over evidence to the fbi. But by lying about it, he was making the fbis job harder and that taints his motivations. If you were concerned about a crime that was committed against your client, why would you tie the FBIs hands in terms of where you got your information?

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        Kristen L

        Well I’m super geeked that I got a response from you! Thanks.
        I agree that if he lied, that is bad and also that tying the FBI’s hands is bad.

        Because of the criminal hacking against Clinton, I just don’t think it’s the same thing as a campaign taking a regular opposition research binder to law enforcement instead of the news, which was the example you gave on the podcast of regular campaign practice in the past.
        So, lying bad. Not a good look. It just seems to me, especially because the contemporaneous notes show that Baker and Priestap knew who Sussman represented even if he didn’t say it, that going to the FBI in this instance was more about thrashing out when victimized than designing a new way to use law enforcement to target in a political campaign.

        People do some pretty… interesting… things when they think they themselves are in fact the ones being attacked. Not a justification for illegality, but perhaps just a mindset distinction between that and normal practice. I’m trying to be hopeful that because they felt victimized, this was an aberration and not the new normal practice.

        But, you know more than I do.

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    PaulH

    As David and Sarah point out, the real significance of the Sussman indictment is that it further illustrates the unprecedented actions taken by the Hillary campaign to manufacture treason charges against Trump and then weaponize the FBI and the media to smear Trump. As the indictment clearly shows, there was nothing to the Alfa Bank story and the tech executive knew it. In the same way, there was nothing to the Steele Dossier and Steele knew it. Yet these allegations were central to the Trump collusion narrative and were used to undermine and paralyze his presidency. And, of course, there is zero curiosity on behalf of the mainstream media to ask Clinton or anyone in her campaign about the appropriateness of those actions.

    As David mentions, the Trump campaign certainly did have some dubious interactions with Russia, but there are two important things to note. First, nothing came of them (yes Wikileaks released information, but not because of Stone’s efforts). Second, they weren’t the basis for the Trump-Russia collusion narrative – the information about the interactions came out much later after Clinton and the Democrats had created the collusion narrative based on the Steele Dossier and the Alfa Bank story.

    Finally, none of this would have happened if the FBI wasn’t so politically biased and so eager to investigate Trump. A properly functioning FBI would have been much more skeptical of the disinformation being peddled by the Clinton campaign, would have been much more cautious about launching an investigation into a presidential campaign and would not have leaked the fact of any investigation to the press.

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      JohnF

      But wait! Haven't you guys been saying for years that lying to the FBI is only a "process crime" and not really anything serious? Are we to understand that it's now an important consideration and Flynn was guilty all along?
      As for this guy being the source of the "collusion narrative" did you miss the part where the FBI looked into his allegations and determined there was nothing there? And that this meeting wasn't held until mid-September, whereas the investigation started in July after Papadopolous got drunk with an Australian diplomat? As you say, nothing came of the Trump campaign's efforts to collude with Russia. Nothing came of Sussman's efforts either. How is this any different?
      After two and a half years, Durham has managed to find one guy who altered an email and another guy who lied to the FBI.
      After two and a half years

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        PaulH

        Rather than attacking a strawman (who is "you guys"?), you might consider reading what I read and responding to it.

        I never said that the Alfa Bank hoax started the FBI investigation. I said it was an important part of the Trump-Russia Collusion narrative -- i.e. the public discussion that Trump was a Russian agent. And, in fact it was; it was repeatedly mentioned as evidence of collusion. Nothing you said refutes that.

        And, of course, it is wrong to say nothing came of Sussman's efforts. He succeeded in getting an FBI investigation started, the fact of that investigation was leaked, and the underlying allegations became an important part of the false Trump Russia Collusion narrative. And, as you might have noticed, that narrative roiled our politics for quite a while.

        The importance of this element of the Durham investigation is that it further exposes both that the Trump-Russia collusion narrative was manufactured by the Clinton campaign and that the participants knew that they were peddling falsehoods.

        We will see whether Durham finds additional crimes -- that is really not the point. The point is that Clinton, the Democratic establishment, the media and the FBI were all complicit in an effort to falsely smear a candidate and a President as a Russian agent.

        If you care about American democracy, that should worry you. If you are just a partisan hack who likes to attack strawmen, then go ahead and make another non-responsive comment.

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          JohnF

          One last thing regarding your allegations of a "biased FBI". 11 Days before the 2016 election, the leader of that biased organization pretty much killed Hillary's chances.

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            PaulH

            Comey repeatedly broke FBI rules and protocols in order to undermine Trump. There is no reason to believe that re-opened the investigation to hurt Clinton - none, absolutely none. He did it solely to protect himself from charges (legitimate charges) that he had sat on potentially incriminating evidence. Your example just proves my point about his bias.

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          JohnF

          Yup, because the greatest threat to American democracy these days is Campaign opposition research and Hillary was certainly the first person ever whose campaign launched a smear campaign. Trump did a pretty good job of making people wonder what was up with him and Russia on his own. Even National Review published articles prior to the 2016 election that could have been headlined "what's up with this guy and Russia?
          You are very forgiving of all of the actions of the Trump campaign, using the excuse that "they certainly tried to collude with Russia but they weren't competent enough to do it and nothing came of it so it's all OK."
          Russia did hack the DNC servers.
          Wikileaks did get the contents of that hack. They did publish those contents.
          Papadopoulos did tell the Australian diplomat that those materials were going to be released.
          Roger Stone was in contact with Wikileaks regarding this release.
          After they were released, that diplomat notified the FBI, who opened an investigation in July. Two months before the Sussman meeting and most of the Steele reports were even written.
          Flynn, Manafort, Papadopoulos, Gates, and Stone all lied to the FBI. Don Jr. and Michael Cohen lied to Congress. Trump himself would have lied to everyone if any of his lawyers had been crazy enough to let him testify about anything.
          There were also plenty of other journalists and technology "experts" propagating that story at the time. Sussman may have tried to get the FBI interested in this particular story but he failed. By your metrics, that makes this a nothingburger.

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            PaulH

            Oh, the Trump-Russia Collusion hoax was just a smear campaign? Talk about forgiving! It dominated our politics for months and was a deliberate attempt to undermine the legitimacy of a duly elected President. And it was based on deliberate lies. Yet you treat it as commonplace? Only a partisan hack could say that with straight face.

            I think part of the problem is that you don't have your facts right. Papadopoulos didn't tell the Austrian diplomat that materials were going to be released -- he repeated a vague rumor about the Russians having dirt. Roger Stone -- despite his best efforts -- was not in contact with Wikileaks. So, yes, the Trump's campaign tawdry outreach efforts were inconsequential.

            In contrast, Sussman was, in fact, successful in getting the FBI to look into the Alfa Bank story. And yes, the Clinton campaign was successful in getting others to write about the Alfa Bank -- which is exactly my point. It became an important part of the narrative.

            As indicated, the Clinton campaign's manufactured Trump Russia Collusion narrative had a huge and ongoing impact on our politics. It is good that Durham is digging up more details about that. Hopefully we will learn more whether or not there are more indictments. And hopefully more people will understand how much her actions undermined faith in American democracy.



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  4. Steve's Spanish wine

    The Yellowstone crime zone is actually referenced, though I think not with perfect legal/geographical accuracy, in the show " Yellowstone" several times. I believe the euphemism of taking X to the "train station" is where several problems went to "be solved'.

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      Dave S.

      It is also a central point in a CJ Box novel, I forget the name off the top of my head.

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  5. Richard Kennedy

    As to the mail fraud issue, this challenge has been around for a while. “Police”procedural novelist C.J. Box called it a “free fire zone” in his 2007 Joe Pickett novel Free Fire. The first page of Part One quotes the relevant statute and its origin date. Our hero, a Wyoming Game and Fish Dept. officer gets stuck with the investigation. Nice to know that legal minds are getting around to this issue.

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    1. The Town Orc

      Was just about to comment about Box's book. It's been a while since I read it, but I remember the investigation focused on whether or not the crime was planned outside the park and if they could catch him on a conspiracy charge.

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    Michael Harris

    Curious on The Dispatch's policy on writing headlines? Do that you let your writers have more input?

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    Cornelius O’Brien

    It's a bit odd to talk about gun laws at the founding in the context of 'originalism'. The Second Amendment was intended solely as a restraint on the federal government in disarming the States, originally. The question is what was the intent of the post-war Congress in extending due process and equal protection to the States via the Fourteenth Amendment, if there is to be an inquiry into original intent. For my money, the argument for incorporation of the Second as applicable to the States is the weakest of all, and not consistent.

    Anyway, I was a little surprised by the distinction between concealed and open carry in the context. A stupid aside, about 25 years ago I was thumbing through old books and a record fo the debates at the Pennsylvania Constitutional Convention of 1900 caught my interest. There was a long debate about whether to amend that document to allow for concealed carry, open carry being unquestioned. The opponents were concerned that men concealing weapons had ill-intent, such that anyone caught hiding his weapon on his person should be subject to arrest, while proponents thought it best that all men fear that others were surreptitiously armed and thus restrain their criminal proclivity for fear of resistance from any man.

    I will read the amicus brief but, I'm dubious that there is any room for a true originalist interpretation of the Second Amendment.

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    1. Rodney Rubert

      It strains credulity to accept the first amendment under incorporation when the text clearly limits the meaning to only Congress and then not accept the second amendment which is a statement acknowledging an individual right. I do think that incorporation doctrine renders mute arguments based on state and local laws at the founding.

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        Cornelius O’Brien

        That's a good point and I don't recall the reasoning for incorporation of the first amendment, nor whether it was done in one fell swoop. Certainly, it does a bit of violence to the text to interpret "Congress shall make no law" to mean the States and local governments shall make no law. To my mind, the multi-faceted nature of the first lends itself to a grayer, more nuanced analysis if the hook is equal protection. Otherwise, it's a question of substantive due process, which is what they've done with the second. I think the second poses an insurmountable federalism issue because of its core purpose, which the Court got wrong in its incorporation decision. I mean, hell, if the Civil War is the impetus for the fourteenth, it seems counterintuitive that the Congress meant not only to leave in place a prohibition on Congress disarming the States but, that it also gavotte federal government the power to prohibit the States from passing laws of general application concerning when, where, how and who may arm themselves in public. Perhaps the Court will surprise me and draw a hard line where its current jurisprudence stands.

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    Chany Ockert

    The one element that I never hear about the Mueller investigation and Russia. In-between the two spectrums that David mentions is Putin. According to Putin, he sought to sow chaos in the American election. But, he didn't think Trump would win. Because of this, of course, there wouldn't have been any evidence of Russia assisting Trump. Putin wouldn't have risked direct assistance because he assumed Clinton would win. A bigger question for the Trump campaign and for future candidates of any party... would the candidate accept foreign assistance if offered or promised?

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      PaulH

      @Chany: Your final question could (and should) also be directed to the Hillary campaign. But we know the answer. The Hillary campaign hired Steele to get information from Russian intelligence sources. So, yes, the Hillary campaign was actively seeking foreign assistance. Somehow no one in the mainstream media has ever considered this a problem.

      @Cornelius. The Trump Tower fiasco is a real muddle. Your kompromat theory is possible. It is also possible that the Russian lawyer was really just acting for her client. She didn't actually have any meaningful dirt to provide but she did have a real interest in pushing for repeal of the sanctions (and had reason to believe that Trump might be receptive). Plus she could tell her client that she had met with Trump (and justify her retainer). If this was a kompromat situation, I think she would have dangled some better dirt in from of the Trump campaign in order to draw them in.

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        Kristen L

        The Clinton campaign sought assistance from a foreign person for an investigation, they didn’t seek foreign assistance by asking a foreign government to manufacture an investigation.

        You keep writing that Clinton manufactured evidence when the reality is she and her campaign were the victims of a crime committed by a foreign government. They were trying to investigate those crimes, but for some reason you don’t think they should hand over any of their raw investigatory materials to the professionals. That to you smacks of trying to game the system?
        They were the victims.

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          PaulH

          The Clinton's actively sought the assistance of Russian intelligence sources in to advance their campaign. In other words, they colluding with the Russians. Do you think that was appropriate? [Please answer and compare and contrast to what Trump was accused of].

          The campaign did not just hand over the materials to the FBI. They tried to get the press to write about the materials. And they initially hid the financing of the documents from the FBI, while trying to get the fact of the investigation leaked. So, yes, absolutely, they were gaming the system.

          And, in fact, it turns out the information was manufactured. Steele really didn't have any sources. The Alfa Bank story (as discussed in the podcast) was completely bogus -- and the person peddling it knew it.

          The idea that the were victims is hilarious. Clinton seeks the assistance of Russian intelligence sources, passes on the garbage she receives without any consideration to its accuracy, mobilizes the FBI and the press to launch investigations and stories based on the garbage, throws the Trump presidency into turmoil for months and months, and then natters on for 5 years about his illegitimacy. All without ever acknowledging her role in the story.

          And you claim she was a victim? How has she suffered? Not a bit. Instead she has gotten away with pulling off the biggest and most consequential dirty trick ever in the history of American politics. And people like you are willfully oblivious to the tremendous damage she did to our democracy.

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            Kristen L

            Clinton was a victim of a criminal invasion of the DNC server.
            The US intelligence agencies knew it was Russia. They said it, and trump denied it. Trump and his campaign planned a messaging and media strategy around the proceeds of Russian criminal attack on the DNC. Mueller said this.

            It isn’t proven that any Trump campaign member conspired with any Russians. Though Mueller did say we’d know more if they hadn’t used apps designed to hide messages, and if those in Trump world hadn’t destroyed communications.

            Clinton didn’t collude with Russians by interviewing Russians, neither did anyone on her team. Interviewing and investigating ones opponent isn’t a crime. She isn’t a saint. Sussman isn't either. But this one Clinton attorney is not the big story about the 2016 election.

            She didn’t damage the American democracy. People pretending that she was the driving force behind the investigations are being willfully ignorant at this point.

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        Chany Ockert

        @PaulH. No. That is not my question. My question is - will candidates of any party be willing to accept assistance from a foreign power if offered or promised?

        In 2016, Putin would not have offered direct assistance to Trump, given his perceived risks if Clinton had been elected. Foreign leaders have been watching our reactions.

        In 2024 campaign, has the Overton window moved enough where the American people are desensitized and foreign power assistance would be seen as a normal aspect of presidential campaigns? And, if so, how will malicious actors/foreign leaders take advantage of that?

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          PaulH

          I am not sure the Overton window has been shifted. The Trump campaign paid a big political price as a result of the false charges of accepting foreign assistance --that would seem to narrow the window. No one seems to have noticed or cared that the Clinton campaign actively sought the assistance of Russian intelligence sources -- so that didn't shift the window at all. So my guess is that the status quo remains -- it is OK for Democrats to seek foreign assistance as long as they are quiet about it.

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            Chany Ockert

            I would like to remind you that Clinton did face consequences. She LOST the election.

            I would also like to remind you that President Trump solicited assistance from Ukraine President Zelensky. His perfect call as President Trump said. Although he faced impeachment, he was acquitted.

            Again, back to my question about the Overton window and foreign leaders offering assistance. Given the right-wing media coverage of Hungarian PM Orban this summer and based on rumors addressed in the Sweep, here's a scenario....

            Tucker Calson runs for President in 2024. Hungarian PM Orban offers assistance.

            What would the American public say, especially conservatives? How would Fox cover it? I'm not as confident as you that the Overton window didn't shift.

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      Cornelius O’Brien

      I always thought the Don Jr. meeting at Trump Tower was classic Russian kompromat. They weren't there to collude; they were there to create an appearance of collusion that could be disclosed if Trump won.

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    Dustin Anglin

    Ugh, came out too early to catch the first S.B. 8 lawsuit, filed against the WaPo op-ed doctor by an out of state claimant who is a convicted felon serving time in Arkansas! What a time!

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  10. Laurie

    As Bill commented, the Atlantic covers a specific case in the Experiment podcast from February 4, 2021 entitled The Loophole: Inside Yellowstone National Park There's a Glitch in the U.S. Constitution.

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