What Watergate Prosecutors Had That Mueller Didn’t.


I served as an assistant special prosecutor on the Watergate Special Prosecution Force, and I have been frequently struck by the similarities between the investigations of Presidents Nixon and Trump. Both involved property theft from the Democratic National Committee and resulted in the criminal convictions of individuals close to the president. Presidents Nixon and Trump repeatedly lied to the American people to cover up their conduct, and the head prosecutor in each case chose not to indict a sitting president but rather to provide Congress with a "road map" for impeachment should Congress choose to pursue it.

But there is a major difference between the two, and it is crucial to understanding how the Mueller report should be read: the distinction between physical and intangible property.

In Watergate, the burglars were caught by the police during the break-in at the scene of the crime. They were arrested, photographed, fingerprinted and jailed. Police officers collected crime scene physical evidence, and investigators subsequently obtained additional corroborating evidence — telephone records, bank statements, airline tickets and hotel invoices. The vast accumulation of physical evidence was vital to securing the criminal convictions of the burglars — who, slapped with stiff prison sentences, revealed their connections with the Nixon campaign.

Before their sentencing, President Nixon and his aides engineered a cover-up by dangling "hush money." Some of the burglars appeared willing to clam up, but no matter how many lies or how steadfast their silence, they could never deny the evidence that was physically present.

Mr. Mueller did not have that kind of leverage in his investigation of Americans tied to the Trump campaign and any potential connection to Russia's "sweeping and systematic" interference in the 2016 election.

With the hacking of D.N.C. computers, Mr. Mueller did an impressive job of compiling a strikingly detailed narrative of thieves and their methods. Twelve Russians were indicted, but none have been arrested. That is because the Russian hackers were not physically present at the D.N.C., but were thousands of miles away, often sitting at computer terminals in an office building in Moscow out of the reach of American law enforcement.

As a consequence, Mr. Mueller and his team faced a much more difficult task than the one that confronted Watergate investigators. In a footnote of the report (Volume I, Page 176), Mr. Mueller reveals that his office "considered, but ruled out," bringing charges against American citizens who conspired with the Russian hackers "on the theory that the post-hacking sharing and dissemination of emails could constitute trafficking in or receipt of stolen property."

Why wasn't that theory pursued? Because it didn't involve the kind of physical evidence as in Watergate, but rather cyberevidence.

The relevant criminal statute that covers the theory Mr. Mueller "considered, but ruled out" is the National Stolen Property Act, and it applies only to "tangible" property (i.e., "goods, wares, or merchandise"), and does not include "intangible" property like computer data that exists "only in electronic form" and resides in cyberspace.

This may sound like a bothersome legal technicality, but it is also the current state of the law, and the fact that the American statute is obsolete meant that Mr. Mueller felt his hands were tied by the nonphysical nature of his evidence.The report documents "multiple links between Trump Campaign officials and individuals tied to the Russian government," including numerous instances in which the former Trump campaign chairman Paul Manafort and his deputy, Rick Gates, passed internal polling data to a Russian associate, Konstantin Kilimnik. According to Mr. Gates, the polling data was discussed in the context of "'battleground' states," which were "identified as Michigan, Wisconsin, Pennsylvania, and Minnesota." Mr. Mueller was unable to obtain the material passed to Mr. Kilimnik because he's in Russia.

The special counsel's ability to investigate what happened was further hampered by the use of encryption applications by individuals affiliated with the Trump campaign and their Russian contacts that concealed their communications.

Watergate was much more a traditional investigation. I was able to track the Watergate burglars through traditional paper records, and many of President Nixon's top aides kept handwritten notes that detailed what others said and did, not to mention the White House tapes.

As Congress continues its oversight responsibilities, our legislators should be aware that Mr. Mueller has signaled them of the need to modernize the Stolen Property act. Our computer crime statute is directed primarily at protecting unauthorized access to computers but does not outlaw the knowing use, possession or trafficking in stolen computer data. Congress needs to make certain that such activity is properly codified as the crime that it is, as well as to allow law enforcement to circumvent encryption technology in a way that protects legitimate privacy interests.It also should be clear that a proper reading of the Mueller report does not offer the "exoneration" President Trump and Attorney General Barr have claimed. Rather, the report, like the "road map" from the Watergate special prosecutor Leon Jaworski, provides a factual record of wrongdoing (including the clear obstruction of justice in Volume II) that invites Congress to independently investigate and decide whether or not such conduct merits an impeachment inquiry.

Nick Akerman was an assistant special prosecutor on the Watergate Special Prosecution Force. The New York Times. May 2, 2019.

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May 3, 2019

Voices4America Post Script. This Watergate prosecutor points out differences and similarities between the Watergate break-in and Trump’s criminality, and why it was so difficultly for Mueller to show Trump’s crimes with Russia.

Yes, we all watched Trump conspire with Russia & yes, Mueller indicted 34 individuals. What next as Congressional oversights continues? This article is a must read on the difficulties in pinning down Trump's treason - a must read, a must share. People must know! #TrumpTreason #ImpeachTrump

An aside, prosecutors are also not likely as computer savvy as they need be for this new kind of investigation, plus this investigation involved the Russian language as well as English. Yes, experts can be hired, but a non empirical investigation, half in a foreign language is, as Ackerman says,hard, really hard.

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