The Mueller Report: The Comprehensive Findings of the Special Counsel

by Robert S. Mueller III

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.