I wrote here about Robert Mueller’s indictment of 13 Russian citizens and three Russian companies. The indictment is an odd one, as I pointed out:

Its very first paragraph recites that it is against the law for foreign nationals to spend money to influence US elections, or for agents of foreign countries to engage in political activities without registering. But no one is charged with these crimes. Instead, the indictment is devoted mostly to charging a “conspiracy to defraud the United States.” Normally, that would refer to defrauding the U.S. out of, say, $10,000 in Medicare benefits. Its application to the 2016 election seems dubious. Beyond that, the indictment charges relatively minor offenses: bank fraud (opening accounts in false names) and identity theft.

I have continued to puzzle over why Mueller chose not to indict the Russians for their most obvious offenses. I think the answer lies in this column by Robert Barnes, titled “Does Mueller Indictment Mean Clinton Campaign Can Be Indicted for Chris Steele?”

Barnes’s column is off the mark, I think, because it is written as though Mueller did indict the Russians for improper meddling in a U.S. election:

Special Counsel Robert Mueller indicted foreign citizens for trying to influence the American public about an election because those citizens did not register as a foreign agent nor record their financial expenditures to the Federal Elections Commission. By that theory, when will Mueller indict Christopher Steele, FusionGPS, PerkinsCoie, the DNC and the Clinton Campaign?

Actually, Mueller indicted the Russians only for violating 18 U.S.C. §371 (conspiracy to defraud the United States), §§ 1343 and 1344 (wire fraud and bank fraud), and §1082(A) (identity theft). He did not indict them for violating 52 U.S.C. §30121 (contributions and donations by foreign nationals). The question is, why not? Here, I think Barnes supplies the answer, although again I do not think his explanation is technically accurate.

This is the relevant language of 52 U.S.C. §30121, which covers “meddling” in U.S. elections by foreign nationals:

(a) Prohibition: It shall be unlawful for— (1) a foreign national, directly or indirectly, to make— (A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; (B) a contribution or donation to a committee of a political party; or (C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or (2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.

The Russians obviously violated this statute; they spent millions of dollars to promote the candidacies of Bernie Sanders, Donald Trump and Jill Stein, and to oppose the candidacies of Hillary Clinton, Ted Cruz and Marco Rubio. So why weren’t they charged with the most pertinent crime they committed? Because Christopher Steele arguably violated the same law. He is a foreign national, and he contributed a “thing of value” to the Hillary Clinton campaign, namely the fake dossier.

Note, too, Section (2): it is a crime to “solicit, accept, or receive” such a contribution from a foreign national. Isn’t that what the Perkins, Coie law firm, the Clinton campaign, the DNC, and probably Hillary herself, did?

The FEC guidance on contributions by foreign nationals is interesting. There is a “volunteer exception”; i.e., foreign nationals can volunteer their services to a political campaign. But Steele wasn’t a volunteer.

I don’t doubt that election lawyers could come up with defenses for Christopher Steele, were he to be charged with violating §30121. But that is a can of worms that Mueller didn’t want to open. Too many people know the facts behind the Steele dossier, and if he had charged the Russians with meddling in the presidential election under §30121, he soon would have faced questions about why he didn’t indict Steele–and Glenn Simpson, Perkins, Coie, Clinton campaign officials, and perhaps Clinton–for the same offense.

It was in order to avoid that pitfall, I suspect, that Mueller overlooked the most relevant federal offense that the Russians committed, and instead charged them with a vague “conspiracy to defraud,” along with wire fraud, bank fraud and identity theft. The first charge is entirely discretionary on Mueller’s part, and Steele didn’t commit wire fraud, bank fraud or identity theft.

I think that is why Mueller chose not to indict the Russians for meddling in a U.S. presidential election.

UPDATE: Daniel Lowenstein, an election law expert, doesn’t think much of my hypothesis. He writes:

As you point out, Steele was not a volunteer. He was paid for his services. But if he was paid for his services, those services did not constitute a contribution. To say otherwise would mean it would be illegal for an election campaign to purchase anything from a foreign vendor. Furthermore, it would be patently contrary to what the word “contribution” signifies. I don’t see the can of worms.

I assumed something along these lines must be right, which is why I wrote that “I don’t doubt that election lawyers could come up with defenses for Christopher Steele.” But is it really that simple? If it is OK for a foreign national to provide valuable services to a campaign as long as he is paid, and it is also OK if he is a volunteer, what becomes of the prohibition? I assume that the safe harbor Lowenstein refers to requires that the foreign national be paid fair market value for his services; otherwise, he makes a contribution in the amount of the difference between the fair market value and what he was paid. But what was the fair market value of the dossier? Who knows?

Also, I believe that Steele continued to work on behalf of the Clinton campaign in ways that went beyond what he was paid for, e.g. by leaking the contents of his dossier to the press and by taking it to the FBI. Are these “volunteer” activities and therefore exempt from the prohibition of §30121? I don’t know. Simpson, for what it is worth, testified that Steele engaged in these activities out of a sense of duty, for the sake of the public good.

So with all due respect to Lowenstein, I think that Bob Mueller could well have believed that indicting the Russians under §30121 would open a “can of worms” with regard to Steele, even if Steele would have had plausible defenses to the potential charge.

Lowenstein agrees that the charge of “conspiracy to defraud the United States” is goofy:

Like you, I find it hard to understand the charge of intent to defraud the United States. I have not read the indictment, but if there is no better explanation of what they mean than you provided, then I can only imagine it means the Russians intended to mislead the voters in a manner likely to influence voters. I agree with you that that is pretty flaky. But flaky or not, I do not see why it is less applicable to Steele than to the indicted Russians.

My point is not so much that the conspiracy theory is less applicable to Steele than the Russians, but rather that the theory is so vague and so novel that its application is, as I phrased it, “entirely discretionary on Mueller’s part.”

At the end of the day, I freely acknowledge that my hypothesis is speculative and may be wrong. But if so, the question remains: why did Mueller recite in the indictment’s first paragraph that it is against the law for foreign nationals to spend money to influence U. S. elections, implicitly recognizing that that was the essence of what the Russians did, and then not charge them with that crime? I, at least, haven’t seen a better answer.

We thank Daniel Lowenstein for adding his expert perspective to the discussion.