Category Archive 'Andrew C. McCarthy'

31 Oct 2017

Unpacking Yesterday’s Charges

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I was hoping somebody would take the time to read Mr. Mueller’s charges. Andrew C. McCarthy kindly did.

On first glance, Mueller’s case, at least in part, seems shaky and overcharged.

Even though the Ukrainian money goes back to 2006, the counts involving failure to file FBARs (Counts Three through Nine) go back only to 2012. This is likely because the five-year statute of limitations bars prosecution for anything before then. Obviously, one purpose of the conspiracy count (Count One) is to enable prosecutors, under the guise of establishing the full scope of the scheme, to prove law violations that would otherwise be time-barred.

The offense of failing to register as a foreign agent (Count Ten) may be a slam-dunk, but it is a violation that the Justice Department rarely prosecutes criminally. There is often ambiguity about whether the person’s actions trigger the registration requirement, so the Justice Department’s practice is to encourage people to register, not indict them for failing to do so.

It may well be that Manafort and Gates made false statements when they belatedly registered as foreign agents, but it appears that Mueller’s office has turned one offense into two, an abusive prosecutorial tactic that flouts congressional intent.

Specifically, Congress considers false statements in the specific context of foreign-agent registration to be a misdemeanor calling for zero to six months’ imprisonment. (See Section 622(a)(2) of Title 22, U.S. Code.) That is the offense Mueller charges in Count Eleven. But then, for good measure, Mueller adds a second false-statement count (Count Twelve) for the same conduct — charged under the penal-code section (Section 1001 of Title 18, U.S. Code) that makes any falsity or material omission in a statement to government officials a felony punishable by up to five years’ imprisonment.

Obviously, one cannot make a false statement on the foreign-agent registration form without also making a false statement to the government. Consequently, expect Manafort to argue that Mueller has violated double-jeopardy principles by charging the same exact offense in two separate counts, and that the special counsel is undermining Congress’s intent that the offense of providing false information on a foreign-agent registration form be considered merely a misdemeanor.

Finally, the money-laundering conspiracy allegation (Count Two) seems far from slam-dunk. For someone to be guilty of laundering, the money involved has to be the proceeds of criminal activity before the accused starts concealing it by (a) moving it through accounts or changing its form by buying assets, etc., or (b) dodging a reporting requirement under federal law.

Now, it is surely a terrible thing to take money, under the guise of “political consulting,” from an unsavory Ukranian political faction that is doing the Kremlin’s bidding. But it is not a violation of American law to do so. The violations occur when, as outlined above, there is a lack of compliance with various disclosure requirements. Mueller seems to acknowledge this: The money-laundering count does not allege that it was illegal for Manafort and Gates to be paid by the Ukrainian faction. It is alleged, rather, that they moved the money around to promote a scheme to function as unregistered foreign agents, and specifically to avoid the registration requirement.

That seems like a stretch. To be sure, the relevant money-laundering statute includes in its definition of “specified unlawful activity” “any violation of the Foreign Agents Registration Act of 1938.” (See Section 1956(c)(2)(7)(D) of Title 18, U.S. Code.) But the prosecution still has to prove beyond a reasonable doubt that the money was the proceeds of unlawful activity in the first place. Moreover, the prosecution must prove beyond a reasonable doubt that Manafort and Gates (a) knew the money was the proceeds of illegal activity and (b) transported the money the way they did with the specific intent of avoiding having to register as foreign agents. This count will thus fail if there is any doubt that the Ukrainian money was illegal under American law, that Manafort and Gates knew it was illegal, that they knew the work they were doing required them to register as foreign agents, or that it was their intention to promote a failure-to-register violation.

Even from Paul Manafort’s perspective, there may be less to this indictment than meets the eye — it’s not so much a serious allegation of “conspiracy against the United States” as a dubious case of disclosure violations and money movement that would never have been brought had he not drawn attention to himself by temporarily joining the Trump campaign. From President Trump’s perspective, the indictment is a boon from which he can claim that the special counsel has no actionable collusion case.

28 Jun 2015

Let’s Start Electing the Supreme Court

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Andrew C. McCarthy thinks it’s time to drop the fiction that Supreme Court justices are following the law. Last week’s decisions demonstrate once and for all that the majority of the Court is comprised of partisan politicians.

Already, an ocean of ink has been spilled analyzing, lauding, and bemoaning the Supreme Court’s work this week: a second life line tossed to SCOTUScare in just three years; the location of a heretofore unknown constitutional right to same-sex marriage almost a century-and-a-half after the adoption of the Fourteenth Amendment; and the refashioning of Congress’s Fair Housing Act to embrace legal academe’s loopy “disparate impact” theory of inducing discrimination.

Yet, for all the non-stop commentary, one detail goes nearly unmentioned — the omission that best explains this week’s Fundamental Transformation trifecta.

Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?

There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.

There was not an iota of speculation about how the four Progressive justices would vote.

How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory.

But not the Court’s lefties, not on the major cases.

And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.

It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable.

But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution.

That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.

If the justices are going to do politics, they should be in electoral politics. If John Roberts is going to write laws on the days when he isn’t posing as powerless to write laws, if Anthony Kennedy truly believes the country craves his eccentric notion of liberty (one that condemns government restraints on marriage 24 hours after it tightens government’s noose around one-sixth of the U.S. economy), then their seats should not be in an insulated third branch of government. They should be in an accountable third chamber of Congress.

If, for old times’ sake, we want to maintain some harmless vestige of the charade, then let them keep wearing their robes to work — for at least as long as they can persuade voters to keep them in these jobs. Let’s dispense, though, with the fiction that their judgments are the product of legal acumen rather than sheer will.

Read the whole thing.


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