Mikhaila Fogel and Benjamin Wittes: Mueller is laying siege to the Trump presidency.
The criticism is part of the overall discounting of the value of truth in the Trump era. Lies, it’s implied, are a rampant, and ultimately trivial, feature of public life. But here’s another word for what Mueller’s chasing that has not yet lost its sting: fraud. That sounds a lot less benign than lie or process crime, and for good reason. The fraudster, more than just fooling the victim, aims to exploit, to implement a scheme that deprives the victim of something of personal or financial value.
Under the law, fraud is a deliberate, material deception to secure an unlawful gain. The bread-and-butter charge of the white-collar prosecutor is fraud of some sort—wire fraud, bank fraud, or tax fraud—which constitutes about 10 percent of the federal docket and about 75 percent of all white-collar offenses. As a prosecutor, I brought dozens of fraud cases, and in my current legal practice, I routinely sue people and companies in civil court who have defrauded the government.
At the core of every fraud is a lie: an important lie that the defendant tells knowingly in order to influence a victim’s action. Paul Manafort has made a life of such lies, as in different ways have many of Mueller’s 33 defendants and, of course, the president.
Read: Mueller’s sentencing memo for Flynn doubles as a warning to Manafort
To the extent the “mere process” description is meant to trivialize the charges, several responses come immediately to mind.
First, there is nothing trivial about lying to Congress or the FBI, and none of the lies in question were picayune. Cohen’s lies, for example, were thoroughly premeditated, even written out. And his sentencing memorandum indicates that his lies toed the party line designed to support the president’s political fortunes, which makes them considerably more serious. Likewise, with Flynn, underlying his false statements was an apparent relationship with Russia that may have led him to push for specific diplomatic changes. It may have been to keep that conduct under wraps that the president improperly importuned then-FBI Director James Comey to drop the Flynn probe.
Second, Mueller’s approach is common to large-scale investigations of political crimes—think Watergate, Iran-Contra, Scooter Libby—as captured in the well-worn adage “It’s not the crime, it’s the cover-up.”
Third, the Russian angle imposes another level of gravity on the crimes of dishonesty here, because many of the lies—e.g., Flynn’s and Cohen’s—were known to the Russian government, and therefore exposed the liar to the possibility of blackmail.
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By suggesting that the administration’s lying ways are haphazard and trifling, the “process crime” argument simply misses the mark. More and more, the administration looks like a fundamentally fraudulent enterprise presided over by a fraudster-in-chief. Trump is not only an inveterate liar; he is a fraudster who lies knowingly, and by design, to help himself at others’ expense.