Monday, November 29, 2021

Putin and Ukraine


Two recent articles on the Foreign Affairs website deal with the question of what Putin plans to do about Ukraine.  Will he invade or not?

·       Russia Won’t Let Ukraine Go Without a Fight

·       Ukraine in the Crosshairs

I think the first ignores the history of the relationship between Russia and Ukraine, while the second tends to downplay the importance of the history.  The second article refers to an essay by Putin on the history of the relationship, calling it “revanchist drivel.” 

There are several matters that may be prompting Putin to threaten to invade Ukraine. 

·       Putin see Ukraine as a historical part of Russia and does not want to see it move further toward the West. He may try to keep it physically under Russian control.   

·       Lukashenko, the Putin-supported president of Belarus is being challenged by a popular movement in Belarus. Putin may fear losing his proxy in Belarus as he did in Ukraine. 

·       Putin’s popularity and support are sinking in Russia as he faces opposition from Navalny and other challengers.  He may think a foreign success will strengthen his support within Russia. 

Ukraine and Russia

For the last thousand years, Ukraine has been an ethnic and geographical region, but not an independent country.  Kiev, founded around 500 A.D., was in many ways the first capital of Russia, before Moscow, founded around 1150, or St. Petersburg (1700). 

In his article, Putin says:

Russians, Ukrainians, and Belarusians are all descendants of Ancient Rus, which was the largest state in Europe. Slavic and other tribes across the vast territory – from Ladoga, Novgorod, and Pskov to Kiev and Chernigov – were bound together by one language (which we now refer to as Old Russian), economic ties, the rule of the princes of the Rurik dynasty, and – after the baptism of Rus – the Orthodox faith. The spiritual choice made by St. Vladimir, who was both Prince of Novgorod and Grand Prince of Kiev, still largely determines our affinity today.

The throne of Kiev held a dominant position in Ancient Rus. This had been the custom since the late 9th century. The Tale of Bygone Years captured for posterity the words of Oleg the Prophet about Kiev, ”Let it be the mother of all Russian cities.“


Over the years, as Russia or Poland became more or less powerful and expanded or contracted, parts of Ukraine became more Russian or more Polish.  The western Polish parts tended to be Roman Catholic, while the eastern Russian parts were Orthodox Catholic.  After World Wars I and II, Ukraine became more fully Russian.  The Russian Communists made the Ukraine SSR one of the Socialist Republics which was part of the Union of Soviet Socialist Republics.  In 1954, the Crimea region was transferred from the Russian SSR to the Ukrainian SSR, probably to advance the career or Nikita Khrushchev, who was the party official responsible for Ukraine.  Thus, when the USSR disintegrated in 1991, Ukraine, including Crimea, automatically became a separate country for the first time. 

For the first few years of independent Ukraine continued as largely a satellite of the Russian Republic.  In 2004, however, a disputed election resulted in the Ukrainian supreme court overturning the election of Putin’s candidate, Yanukovich.  The opposition to Yanukovich created the Orange Revolution, which brought in opposition candidate Viktor Yushchenko as the new president.   Yanukovich, however, returned to power as prime minister in 2006, and after a hiatus, again in 2010. 

Mounting opposition to Yanukovich was expressed in the Euromaidan protests in 2014 resulting in new elections and the election of Petro Poroshenko.  The ousting of Yanukovich, however, prompted Putin to annex Crimea, and return it to Russian rule.  American, Russian, and European political strategists have been involved in the various campaigns for president, including Paul Manafort, who was Donald Trump’s campaign manager for a while.  Manafort worked for the pro-Russian candidates.  In 2019 Volodymyr Zelensky was elected president, replacing Poroshenko.

In addition to annexing Crimea, Putin has used more or less covert military means to bring the eastern Donbas region of Ukraine back into the Russian orbit.  Pro-Russian Ukrainians, supported by covert Russian military, have fought against Ukrainian soldiers.  Reuters reported on November 23 that Russian-controlled forces in Donbas were increasing readiness and hold exercises.   The Atlantic Council reports that on November 15, Putin issued a decree removing trade barriers between Russia and the Donbas region, but not with the pro-Western parts of Ukraine.       


Alexander Lukashenko has been Russia’s strongman in Belarus since Belarus became independent in 1994.  He had managed to keep politics relatively quiet until the 2020 election, when protests erupted, somewhat like those in Ukraine in 2004 and 2014. The protests have been led by a blogger, Sergei Tikhanovsky, and presidential candidate Sviatlana Tsikhanouskaya.  Lukashenko cracked down hard on the protesters with beatings, arrests, and torture.   Lukashenko remains in control, but his 2020 election is not recognized by the UK, the EU, or the US because of election fraud. 

The opposition to Lukashenko, may have Putin worried that he is in danger of losing his man in Minsk, like he lost his man in Kyiv/Kiev.  He may think that some kind of military showing in Ukraine will make the Belarussians think twice about following the Ukrainian example. 


Putin’s Hold on Russia

Putin still has a strong hold on Russia, but opposition to him is growing, or at least becoming more visible.  His poisoning and imprisonment of Alexei Navalny and the crackdown on the opposition Navalny led indicate that he is worried.  He may think that an exercise showing Russian military strength in Ukraine would help cement his leadership position in Russia.  Putin would see it as a restoration of Russian greatness, and he would expect nationalist Russians to see it that way as well. 



Saturday, August 28, 2021

Vietnam and Afghanistan

I have had two brushes with Vietnam during my life: one was serving in the Army artillery in Vietnam during the war, the second was overseeing databases of Vietnamese who wanted to go to the United States after the war. 

When I was in Vietnam from 1969 to 1970, I had very little interaction with the Vietnamese. I was in a heavy artillery battery that supported American Army soldiers on the ground.  Most of the time we were stationed at firebases in the middle of nowhere, with no Vietnamese around.  A few times we had Vietnamese units on the same firebase, but we did not interact.  They supported Vietnamese units and we supported American units.  We were in northern South Vietnam, which the Army called I Corps.  Occasionally I would ride into town with supply trucks; so, I occasionally saw Hue and Quang Tri. At Firebase Barbara, on a lonely mountaintop not too far south of Khe Sanh on the Laotian border, all of our resupply was done by helicopter.  When Saigon fell, I had no personal connection to any South Vietnamese left behind. 

At the American Embassy in Bangkok, Thailand, from 1984 to 1986, I was in charge of the embassy’s computers.  I was primarily responsible for the computers in the embassy, which mainly handled administrative tasks like maintaining personnel and financial records.  However, as the senior computer person in the embassy, I had oversight responsibility for several other computer operations.  One of them handled data for the Orderly Departure Program for Vietnamese still in Vietnam who wanted to leave the country.  The Orderly Departure Program had been established to try to stop the dangerous exodus of Vietnamese “boat people.” Another handled data for Vietnamese refugees who had already escaped across Laos or Cambodia to Thai refugee camps and who wanted to go to the United States.  This was about ten years after the fall of Saigon, but I don’t know how many of these people had worked for the US during the war. 

According to Wikipedia, from 1980 to 1997, 623,509 Vietnamese were resettled abroad under the Orderly Departure Program, of whom 458,367 went to the United States.  As I recall, a friend at the embassy in Bangkok who worked in the Orderly Departure Program went to Vietnam about once a week to process a planeload of Vietnamese going to the US.  Outside of the Orderly Departure Program, the number of “boat people” leaving Vietnam and arriving safely in another country totaled almost 800,000 between 1975 and 1995.  The UN High Commissioner for Refugees estimated that between 200,000 and 400,000 boat people died at sea without reaching their destination.  About 40,000 Vietnamese refugees were held in Thai border refugee camps until they could be resettled. 

If Vietnam is an example, there will continue to be many refugees fleeing Afghanistan for years to come. 


Friday, August 20, 2021

Covid and the Stock Market

Mohamed El-Erian’s opinion piece on Bloomberg says it will take a huge shock to deter risk-taking investors.  He cites five mantras that stock traders have followed over the years:

·       Never fight the Fed.

·       The trend is your friend.

·       There is no alternative.

·       Fear of missing out.

·       Buy the dip.

For me, the first one is the most significant, “Never fight the Fed.” The Fed has become more and more important over the years. When inflation, which had started under Nixon, took off under Jimmy Carter, Fed Chair Paul Volker inflicted painfully high interest rates that got it under control.  Previously at Treasury, Volker had been instrumental in making Nixon’s decision take the US off of the gold standard work without destroying the US or the world economy. 

Fed Chair Greenspan was famous for holding up the stock market with the “Greenspan put,” named for a market option trade that enables an investor to avoid losses on a stock that goes down.  He was tested by the 1987 stock market crash just a few months after he was nominated to succeed Paul Volker.  He presided over a second crash, the bubble of 2000, and he was Fed Chair during the 9/11/2001 World Trade Center attack, which was a huge blow to Wall Street. 

Ben Bernanke was Fed Chair when the housing crisis hit in 2008, which threatened to bring down many of Wall Street’s most famous banks.  In the end, thanks to Bernanke, Treasury Secretary Paulson, and others at the Fed and Treasury, only one major bank failed, Lehman Brothers. 

When the Covid-19 lockdown crisis hit, Fed Chair Powell reacted even more strongly than Bernanke had.  Although many of the Fed measures to fight the 2008 crisis were still in place, Powell opened the flood gates of liquidity even wider, flooding the financial world with cash. 

The Fed “put” still exists and is more powerful today than it was in Greenspan’s day, justifying the maxim, “Never fight the Fed.”   The “put” has a double sided effect of keeping the US out of recession, but also magnifying inequality by enriching stock market investors.  This is a larger group that it was in previous generations, but still by no means includes everyone, and does not benefit investors equally.  It clearly favors the richest investors.  It subsidizes the rich to prevent the economy from collapsing for everyone. 

El-Erian mentions a phenomenon that has existed mainly since the the 2008 housing crash: low interest rates and bond yields.  People are buying stocks because bonds are such a bad deal.  Bond prices go down when interest rates go up.  There is no way for interest rates to go but up from here, and that means there is nowhere for bond prices to go but down. 

Interest rates are low for several reasons, but the main one is that the Fed buys them all as soon as they are issued by the Treasury.  If there is  no demand for bonds the interest rate goes up.  The Feds “quantitative easing” policy of buying bonds like crazy means that there is no reason for rates to go up because the Fed buys so many bonds quickly, no matter what the interest rate is, thus preventing the normal bond market from operating for normal investors. This is a global phenomenon because almost all central banks, particularly in Europe, have programs similar to the Fed’s “quantitative easing” resulting in negative interest rates in some countries, where banks charge you for holding your money instead of paying you interest. 

The loss of the bond market as an alternative to the stock market has meant that the stock market has risen even faster than in the past because of another of El-Erian’s maxims:  “There is no alternative.”  This is illustrated by the fact that the market has risen so much even as the Covid pandemic has played havoc with the economy.  Most recently the US suffered one if its most embarrassing defeats in Afghanistan in the last few days, but the defeat has almost no effect on market optimism.  The world may see the US as incompetent, weak and vulnerable, but investors see it as strong and vibrant. 

US investors have turned against China in recent days because it has cracked down and restricted many of its most famous high-tech companies.  They see this as a Chinese turn away from innovation toward more repressive government control.  There is an element of this, but I think China may be reacting to what it sees as excesses in the world financial markets, and is trying to limit this excess in China.  If this is the case, then I think it is good thing.  I worry that the excessive optimism in the US markets may be leading to a fall at some point, but I thought we would have seen something crack long before now. 

Finally, I think the US needs to repair its infrastructure, but I am not sure that now is the best time to do it.  We have spent like drunken sailors since the Covid crisis, running up the most debt since World War II.  I think this may be an overreaction.  Covid has killed many, but mainly it has killed older people, while war mostly kills people in their 20s, some of their most productive years; so, there is less of an effect on the economy.  Despite the fact that the damage to the economy was not as great as a war, the US government borrowed as if it were.  The borrowing was encouraged by the new, trendy idea that deficits don’t matter.  For some reason the economists have decided that governments never have to pay off their debts and so it doesn’t matter how much debt they have.  I don’t believe this idea.  I think someday interest rates will go up and it will become very expensive to pay off a gigantic federal debt.  Therefore, I don’t think this is the best time to start a very expensive infrastructure project.  It is as if you had just gotten out of the hospital with big medical bills and when you got home said, “Now is the time to build that new swimming pool we’ve been talking about for years.”  You should spend on big projects when you don’t have extra bills, like we have for the Covid stimulus.  We should get our house in order first.  We can always spend on essentials, like repairing bridges before they fall down, but we shouldn’t take on big, new projects now.  

Tuesday, January 19, 2021

Ancient Rome and the US

 I have been reading some history of Rome to see if it had any lessons for today.  In the description of Rome around 133 BC, I found Mary Beard’s description apposite.  She writes: 

Looking back over the period, Roman historians regretted the gradual destruction of peaceful politics. Violence was increasingly taken for granted as a political tool. Traditional restraints and conventions broke down, one by one, until swords, clubs and rioting more or less replaced the ballot box. At the same time, to follow Sallust, a very few individuals of enormous power, wealth and military backing came to dominate the state – until Julius Caesar was officially made ‘dictator for life’ and then within weeks was assassinated in the name of liberty. When the story is stripped down to its barest and brutal essentials, it consists of a series of key moments and conflicts that led to the dissolution of the free state, a sequence of tipping points that marked the stages in the progressive degeneration of the political process, and a succession of atrocities that lingered in the Roman imagination for centuries. 

Beard, Mary. SPQR: A History of Ancient Rome (p. 216). Liveright. Kindle Edition.

 Her subsequent, more detailed, discussions brought out more similarities, the growth of parties divided by bitter animosities and points of view, increasing disparities between the wealthy and poor.  Violence and murder was much more common in ancient Rome than in the US today.  But it does make one wonder about where the US is heading, for if history does not repeat itself, it often rhymes.  

Saturday, September 19, 2020


 Soul has ceased to something that people think or talk about, as life becomes less spiritual and more materialistic.  Soul should be thought of as a divine spark within each person. says soul is “the spiritual part of humans as distinct from the physical part.”  It also says it is simply “a human being; a person.”

Wikipedia says:

The soul, in many religious, philosophical, and mythological traditions, is the incorporeal essence of a living being.[1] Soul or psyche (Ancient Greek: ψυχή psykhḗ, of ψύχειν psýkhein, "to breathe") comprises the mental abilities of a living being: reason, character, feeling, consciousness, memory, perception, thinking, etc. Depending on the philosophical system, a soul can either be mortal or immortal.[2]

Soul has been an important concept to almost all ancient religions, from the Greeks up until a generation ago.  Today, as fewer people are religious, the religious concept of soul is seldom considered.  If the word is used at all, it is in with the meaning of a human life.  People say, “Five souls were lost in the accident.”  If souls were immortal, they would not have been lost, but would have moved on.  People today reject a divine connection to, or influence on, human beings.

Even if you don’t believe in an afterlife, there is still the idea of a special, moral quality within man that makes him special, more than an animal or a piece of protoplasm.  This loss of a moral center may account for some of the problems we have today.  We haven’t had any world wars, but perhaps because we can’t unite enough to have gigantic faceoffs.  We have our smaller, fractious disagreements, which mean continual warfare on a personal scale.

I don’t think people today even think much about the concept of soul, of something more than you can see or feel, and society is the worse for it.

Wednesday, October 2, 2019

Schiff’s Whistleblower and the Mueller Report

The whistleblower complaint against President Trump alleges acts very similar to those examined by the Mueller Report which occurred during the June 9, 2016, meeting in Trump Tower between the Russian attorney Natalia Veselnitskaya, Donald Trump, Jr., and several other participants.  In both episodes there was the possibility of a foreign government giving Trump opposition research information relevant to his campaign opponent. 

The Mueller Report examined the June 9, 2016, meeting in great detail.  Its conclusion was that there was no violation of campaign finance laws.  The same conclusion should apply to Trump’s phone call with Ukrainian President Zelensky.  The Report said:

Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting.
In particular, on the question of whether opposition research provided by a foreign government constituted a thing-of-value, the Muller Report said:
… no judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law. Such an interpretation could have implications beyond the foreign-source ban, see 52 U.S.C. § 30116(a) (imposing monetary limits on campaign contributions), and raise First Amendment questions. Those questions could be especially difficult where the information consisted simply of the recounting of historically accurate facts. It is uncertain how courts would resolve those issues. 
The Democrats working on impeachment refuse to mention the Mueller Report, although it is clearly relevant to their investigations.  Since the factual situations are so similar it is important to review the Mueller Report’s extensive analysis of the June 9, 2016, meeting between Trump Jr. and Veselnitskaya.  The Democrats would no doubt argue that they are different because Trump threatened to withhold aid from Ukraine, but in fact, Trump asked Zelensky to do him a “favor.”  A favor is not something you pay for.  It is something done at the other party’s discretion, and need not be done at all.  Zelensky did not do anything in response to Trump’s request, and Trump did not withhold the aid.  In that sense it was like the June 9 meeting in that nothing happened with regard to providing opposition research. 
Because it is so relevant, following is the complete text from the Mueller Report of its legal analysis of the June 9 meeting. 
Begin quote:
3. Campaign Finance
Several areas of the Office's investigation involved efforts or offers by foreign nationals to provide negative information about candidate Clinton to the Trump Campaign or to distribute that information to the public, to the anticipated benefit of the Campaign. As explained below, the Office considered whether two of those efforts in particular- the June 9, 2016 meeting at Trump
Tower Harm to Ongoing Matter ---:-constituted prosecutable violations of the campaign-finance laws. The Office determined that the evidence was not sufficient to charge either incident as a criminal violation.
a. Overview Of Governing Law
"[T]he United States has a compelling interest... in limiting the participation of foreign citizens in activities of democratic self-government, and in thereby preventing foreign influence over the U.S. political process." Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011) (Kavanaugh, J., for three-judge court), ajf'd, 565 U.S. 1104 (2012). To that end, federal campaign- finance law broadly prohibits foreign nationals from making contributions, donations, expenditures, or other disbursements in connection with federal, state, or local candidate elections, and prohibits anyone from soliciting, accepting, or receiving such contributions or donations. As relevant here, foreign nationals may not make- and no one may "solicit,' accept, or receive" from them- " a contribution or donation of money or other thing of value" or "an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election." 52 U.S.C. § 30121(a)(l)(A), (a)(2).1283 The term "contribution," which is used throughout the campaign-finance law, "includes" "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office." 52 U.S.C. § 30101(8)(A)(i). It excludes, among other things, "the value of [volunteer] services." 52 U.S.C. § 30101(8)(B)(i).
Foreign nationals are also barred from making "an expenditure, independent expenditure, or disbursement for an electioneering communication." 52 U.S.C. § 30121(a)(l)(C). The term "expenditure" "includes" "any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office." 52 U.S.C. §,30101(9)(A)(i). It excludes, among other things, news stories and non-partisan get-out-the-vote activities. 52 U.S.C. § 3010I(9)(B)(i)-(ii). An "independent expenditure" is an expenditure "expressly advocating the election or defeat of a clearly identified candidate" and made independently of the campaign. 52 U.S.C. § 30101(17). An "electioneering communication" is a broadcast communication that "refers to a clearly identified candidate for Federal office" and is made within specified time periods and targeted at the relevant electorate. 52 u.s.c. § 30104(f)(3).
The statute defines "foreign national" by reference to FARA and the Immigration and Nationality Act, with minor modification. 52 U.S.C. § 30121(b) (cross-referencing 22 U.S.C. § 61 l(b)(l)-(3) and 8 U.S.C. § 1101(a)(20), (22)). That definition yields five, sometimes- overlapping categories of foreign nationals, which include all of the individuals and entities relevant for present purposes-namely, foreign governments and political parties, individuals
outside of the U.S. who are not legal permanent residents, and certain non-U.S. entities located outside of the U.S. ·
A and willful[]" violation involving an aggregate of $25,000 or more in a calendar year is a felony. 52 U.S.C. § 30109(d)(l)(A)(i); see Bluman, 800 F. Supp. 2d at 292 (noting that a willful violation will require some "proof of the defendant's knowledge of the law"); United States v. Danielczyk, 917 F. Supp. 2d 573, 577 (E.D. Va. 2013) (applying willfulness standard drawn from Bryan v. United States, 524 U.S. 184, 191-92 (1998)); see also Wagner v. FEC, 793 F.3d 1, 19 n.23 (D.C. Cir. 2015) (en bane) (same). A "knowing[] and willful[]" violation involving an aggregate of $2,000 or more in a calendar year, but less than $25,000, is a misdemeanor. 52 U.S.C. § 30109(d)(l)(A)(ii).
b. Application to June 9 Trump Tower Meeting
The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting described in Volume I, Section IV.A.5, supra. The Office concluded that, in light of the government's substantial burden of proof on issues of intent ("knowing" and "willful"), and the difficulty of establishing the value of the offered information, criminal charges would not meet the Justice Manual standard that "the admissible evidence will probably be sufficient to obtain and sustain a conviction." Justice Manual§ 9-27.220.
In brief, the key facts are that, on June 3, 2016, Robert Goldstone emailed Donald Trump Jr., to pass along from Emin and Aras Agalarov an "offer" from Russia's "Crown prosecutor" to "the Trump campaign" of “official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to [Trump Jr.'s] father." The email described this as "very high level and sensitive information" that is "part of Russia and its government's support to Mr. Trump-helped along by Aras and Emin." Trump Jr. responded: "if it's what you say I love it especially later in the summer." Trump Jr. and Emin Agalarov had follow-up conversations and, within days, scheduled a meeting with Russian representatives that was attended by Trump Jr., Manafort, and Kushner. The communications setting up the meeting and the attendance by high-level Campaign representatives support an inference that the Campaign anticipated receiving derogatory documents and information from official Russian sources that could assist candidate Trump's electoral prospects.
This series of events could implicate the federal election-law ban on contributions and donationsbyforeignnationals,52U.S.C.§3012l(a)(l)(A). Specifically, Goldstone passed along an offer purportedly from a Russian government official to provide "official documents and information" to the Trump Campaign for the purposes of influencing the presidential election. Trump Jr. appears to have accepted that offer and to have arranged a meeting to receive those materials. Documentary evidence in the form of email chains supports the inference that Kushner and Manafort were aware of that purpose and attended the June 9 meeting anticipating the receipt of helpful information to the Campaign from Russian sources.
The Office considered whether this evidence would establish a conspiracy to violate the foreign contributions ban, in violation of 18 U.S.C. § 371 ; the solicitation of an illegal foreign- source contribution; or the acceptance or receipt of "an express or implied promise to make a [foreign-source] contribution," both in violation of 52 U.S.C. § 3012l(a)(l)(A), (a)(2). There are reasonable arguments that the offered information would constitute a "thing of value" within the meaning of these provisions, but the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government's burden to prove beyond a reasonable doubt that these individuals acted "willfully," i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation, see 52 U.S.C. § 30109(d)(l)(A)(i).

i. Thing-of Value Element
A threshold legal question is whether providing to a campaign "documents and information" of the type involved here would constitute a prohibited campaign contribution. The foreign contribution ban is not limited to contributions of money. It expressly prohibits "a contribution or donation of money or other thing of value." 52 U.S.C. § 3012l(a)(l)(A), (a)(2) (emphasis added). And the term "contribution" is defined throughout the campaign-finance laws to "include[]" "any gift, subscription, loan, advance, or deposit of money or anything of value." 52 U.S.C. § 30101(8)(A)(i) (emphasis added).
The phrases "thing of value" and "anything of value" are broad and inclusive enough to encompass at least some forms of valuable information. Throughout the United States Code, these phrases serve as "term[s] of art" that are construed "broad[ly]." UnitedStatesv.Nilsen,967F.2d 539, 542 (11th Cir. 1992) (per curiam) ("thing of value" includes "both tangibles and intangibles"); see also, e.g., 18 U.S.C. §§ 20l(b)(l), 666(a)(2) (bribery statutes); id. § 641 (theft of government property). For example, the term "thing of value" encompasses law enforcement reports that would reveal the identity of informants, United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979); classified materials, United States v. Fowler, 932 F.2d 306, 310 (4th Cir. 1991); confidential information about a competitive bid, United States v. Matzkin, 14 F .3d 1014, I 020 (4th Cir. 1994); secret grand jury information, United States v. Jeter, 775 F.2d 670, 680 (6th Cir. 1985); and information about a witness's whereabouts, United States v. Sheker, 618 F.2d 607, 609 (9th Cir.
1980) (per curiam). And in the public corruption context, " ' thing of value' is defined broadly to include the value which the defendant subjectively attaches to the items received." United States v. Renzi, 769 F.3d 731,744 (9th Cir. 2014) (internal quotation marks omitted).
Federal Election Commission (FEC) regulations recognize the value to a campaign of at least some forms of information, stating that the term "anything of value" includes "the provision of any goods or services without charge," such as "membership lists" and "mailing lists." 11 C.F.R. § 100.52(d)(l). The FEC has concluded that the phrase includes a state-by-state list of activists. See Citizens for Responsibility and Ethics in Washington v. FEC, 475 F.3d 337, 338 (D.C. Cir. 2007) (describing the FEC's findings). Likewise, polling data provided to a campaign constitutes a "contribution." FEC Advisory Opinion 1990-12 (Strub), 1990 WL 153454 (citing 11 C.F.R. § 106.4(6)). And in the specific context of the foreign-contributions ban, the FEC has concluded that "election materials used in previous Canadian campaigns," including "flyers, advertisements, door hangers, tri-folds, signs, and other printed material," constitute "anything of value," even though "the value of these materials may be nominal or difficult to ascertain." FEC Advisory Opinion 2007-22 (Hurysz), 2007 WL 5172375, at *5.
These authorities would support the view that candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute a contribution to which the foreign-source ban could apply. A campaign can be assisted not only by the provision of funds, but also by the provision of derogatory information about an opponent. Political campaigns frequently conduct and pay for opposition research. A foreign entity that engaged in such research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value. At the same time, no judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law. Such an interpretation could have implications beyond the foreign-source ban, see 52 U.S.C. § 30116(a) (imposing monetary limits on campaign contributions), and raise First Amendment questions. Those questions could be especially difficult where the information consisted simply of the recounting of historically accurate facts. It is uncertain how courts would resolve those issues.
ii. Willfulness
Even assuming that the promised "documents and information that would incriminate Hillary" constitute a "thing of value" under campaign-finance law, the government would encounter other challenges in seeking to obtain and sustain a conviction. Most significantly, the government has not obtained admissible evidence that is likely to establish the scienter requirement beyond a reasonable doubt. To prove that a defendant acted "knowingly and willfully," the government would have to show that the defendant had general knowledge that his conduct was unlawful. U.S. Department of Justice, Federal Prosecution of Election Offenses 123 (8th ed. Dec. 2017) ("Election Offenses"); see Bluman, 800 F. Supp. 2d at 292 (noting that a willful violation requires "proof of the defendant's knowledge of the law"); Danielczyk, 917 F. Supp. 2d at 577 ("knowledge of general unlawfulness"). "This standard creates an elevated scienter element requiring, at the very least, that application of the law to the facts in question be fairly clear. When there is substantial doubt concerning whether the law applies to the facts of a particular matter, the offender is more likely to have an intent defense." Election Offenses 123. ·
On the facts here, the government would unlikely be able to prove beyond a reasonable doubt that the June 9 meeting participants had general knowledge that their conduct was unlawful. The investigation has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban or the application of federal law to the relevant factual context. The government does not have strong evidence of surreptitious behavior or effo11s at concealment at the time of the June 9 meeting. While the government has evidence of later efforts to prevent disclosure of the nature of the June 9 meeting that could circumstantially provide support for a showing of scienter, see Volume II, Section II.G, infra, that concealment occurred more than a year later, involved individuals who did not attend the June 9 meeting, and may reflect an intention toavoidpoliticalconsequencesratherthananypriorknowledgeofillegality. Additionally, in light of the unresolved legal questions about whether giving "documents and information" of the sort offered here constitutes a campaign contribution, Trump Jr. could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law. Given his less direct involvement in arranging the June 9 meeting, Kushner could likely mount a similar defense. And, while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues.
iii. Difficulties in Valuing Promised Information
The Office would also encounter difficulty proving beyond a reasonable doubt that the value of the promised documents and information exceeds the $2,000 threshold for a criminal violation, as well as the $25,000 threshold for felony punishment. See 52 U.S.C. § 30109(d)(l). The type of evidence commonly used to establish the value of non-monetary contributions-such as pricing the contribution on a commercial market or determining the upstream acquisition cost or the cost of distribution-would likely be unavailable or ineffective in this factual setting. Although damaging opposition research is surely valuable to a campaign, it appears that the information ultimately delivered in the meeting was not valuable. And while value in a conspiracy may well be measured by what the participants expected to receive at the time of the agreement, see, e.g., United States v. Tombrello, 666 F.2d 485, 489 (11th Cir. 1982), Goldstone's description of the offered material here was quite general. His suggestion of the information's value-i.e., that it would "incriminate Hillary" and "would be very useful to [Trump Jr.'s] father"-w as non- specific and may have been understood as being of uncertain worth or reliability, given Goldstone's lack of direct access to the original source. The uncertainty over what would be delivered could be reflected in Trump Jr.'s response ("if it’s what you say I love it") (emphasis added).
Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting.
Mueller 183-188

Wednesday, January 11, 2017


With the decline of organized religion, moral guideposts that were based on the Bible are disappearing, and new age ideas are replacing them.  One of these new ideas is diversity.  The Bible says to love your neighbor as yourself, but it doesn't say that that you should live among other people who are different from yourself.  Most of the Bible tells Jews that they should stick together and not mingle with the other peoples that they lived among.

There is no Beatitude that says, "Blessed are the diverse...."

Diversity is a new virtue which has not been espoused by moralists and philosophers over the millennia since Plato and the Jewish prophets thought about such issues.  It's arguable that increased diversity in the Roman empire as it grew larger and larger was one of the factors that led to the "decline and fall" of the Roman empire.  It's also arguable that one of the most diverse countries recently was the Soviet Union which spanned eleven time zones.  Political turmoil has reduced the Soviet Union to a more homogeneous Russia, spinning off Georgia, Kazakhstan, and other "stans" as separate countries.  The same thing happened to the old Yugoslavia under Tito, which degenerated into several countries after a vicious civil war.  It may also be the case in the animosity between Sunnies and Shiites in the Middle East today.  It's not clear that history shows that diversity is a virtue.