In Vox Story, Professor Miriam Baer Explains the Legal Theory Behind Robert Mueller’s Latest Indictments

Professor Miriam Baer, an expert in white collar crime and criminal law and an associate director of the Law School’s Center of the Study of Business Law and Regulation, has been a frequent commentator on issues related to special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election.

In a Vox story, Baer explained the theory behind the charges against 13 Russian citizens and three Russian companies, accusing them of conspiring to interfere with the 2016 presidential election and help Donald Trump win the White House.

“The theory underlying Mueller’s indictment is that the conspirators agreed to obstruct the federal government’s ‘lawful function’ of administering its own election laws,” she said, adding “although prosecutions such as these are relatively rare, they are not unprecedented.”

The latest charges do not directly implicate anyone in Trump’s campaign or his inner circle, but they raise several legal questions, such as where the broader investigation is headed; whether people close to Trump, who “unwittingly” got help from the Russians, are protected from prosecution; and how difficult it will be to prove the indicted Russians conspired to defraud the United States.

According to Baer, there are two types of conspiracies a prosecutor can charge. The more common occurs when two or more individuals have conspired to commit some other crime, such as computer fraud, bribery, or another offense. The less common usage, which is seen in Mueller’s latest indictment, is the so-called ‘conspiracy to defraud the United States.’

“For this kind of conspiracy, the government must show that the conspirators agreed to interfere with one of the federal government’s ‘lawful functions,’” said Baer. “As for the Americans who may have ‘unwittingly’ helped the conspirators, they have nothing to worry about—at least in regard to this indictment. One cannot unwittingly join a conspiracy; the core of conspiracy is the existence of an agreement to violate the law.”

Baer is a member of the American Law Institute and a Fellow at the American Bar Foundation. At the Law School, she teaches in the areas of corporate law, white collar crime, criminal law, and criminal procedure. Her scholarship, which focuses on organizational wrongdoing in public and private settings, has twice been selected for the prestigious Stanford-Yale-Harvard Junior Faculty Forum and for the American Law and Economic Association’s Annual Meeting. She has published her work in many journals, including the Columbia Law Review, Michigan Law Review, Virginia Law Review and Yale Law Journal Online, among others.

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