THE FEDERAL DEFRAUD STATUTE (18 U.S. CODE § 371), TITLES 50 AND 22 OF THE U.S. CODE, PAUL MANAFORT, AND THE MUELLER PROBE
Google Docs: August 2, 2018
From the jury instructions for the Third U.S. Circuit Court of Appeals
It has been said countless times by Trump’s defenders in RussiaGate that there was no collusion, and that even if there was, collusion is not a crime.
The claim that collusion is not a crime is false. In particular, if the Trump campaign did assist Russia in carrying out that country’s active measures in the 2016 U.S. election, the Trump campaign was in violation of 18 U.S. Code § 371.
There are many things a U.S. citizen can do to “interfere” with or “influence” a U.S. election that a foreign actor is forbidden to do. For example, it is not unlawful for a U.S. citizen to create a bot that advocates for a political candidate. But Russian military intelligence did that during the 2016 campaign, and it acted unlawfully in doing so. If Trump or any member of the Trump campaign — or any U.S. citizen for that matter — assisted Russia’s campaign-related bot activity, he or she committed a felony under 18 U.S.C. § 371. Such violations are punishable by fines and up to five years imprisonment.
Since there is no need for a separate statute making it unlawful for a U.S. citizen to “collude” with a foreign actor who interferes in a U.S. election, it is unsurprising that there is none. 18 U.S.C. § 371 provides all that is needed to prohibit any such “collusion.”
There are a few, very limited ways in which foreign governments, entities, and individuals can try to influence U.S. elections legally, but none of these come anywhere close to the Kremlin’s active measures during the U.S. presidential election.
Sculpturing provides a useful analogy here. Take a block of stone, and start chiseling away to get the sculpture that remains. In this analogy, the stone that is removed is what is lawful for foreign actors to engage in; what remains is what is unlawful. In U.S. election law, one hardly has to chisel away any of the exceptions, which are lawful, to get the remainder, which is unlawful.
The defraud statute reads as follows [emphases mine]:
18 U.S. Code § 371 — Conspiracy to commit offense or to defraud United States
If two or more persons conspire either to commit any offense against the United States, OR to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
(June 25, 1948, ch. 645, 62 Stat. 701; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)
Note that there are two prongs to this statute. (Grammarians and logicians would call it an inclusive rather than exclusive disjunction.)
Two or more persons can conspire to commit an offense — i.e., to commit an act that is unlawful because there is an “underlying” crime (first prong).
But that is not the only way 18 U.S.C. § 371 can be violated. Two or more conspirators can also violate 18 U.S.C. § 371 even if there is no underlying crime (“offense”). They will be in violation of this statute if they have conspired to defraud the United States “in any manner or for any purpose” — including acting to interfere in a U.S. election in any way not recognized as permissible for a foreign actor (which, as we will see, is almost everything).
18 U.S.C. § 371 is only one of many conspiracy statutes in the U.S. code. Most of these conspiracy statutes specify a specific offense, and lay down specific rules for the prosecution of offenses against them and specific penalties for their violation. Because the second prong of 18 U.S.C. § 371 does not require that there be an underlying offense or crime, it is very sweeping, just as obstruction of justice statutes are. 18 U.S.C. § 371 does, however, have a significant constraint: at least one of the conspirators must have engaged in an overt act to “effect the object of the conspiracy.”
All this is made very clear in the instructions that judges in U.S. courts give to juries in conspiracy cases. Below are some of the instructions included in such instructions for the Third Circuit Court of Appeals when there is no underlying offense or crime — i.e., when the trial involves the second prong only (defraud prong) of 18 U.S.C. § 371.
Note that for the purposes of the Mueller investigation, at least one of the
Individuals in the alleged conspiracy must be Trump or a member of his campaign team and another must be either the Russian government itself or a Russian national acting on behalf of that government to interfere in the election. In the jury instructions that are given below, the referent of “(name) agreed or conspired with one or more other persons to defraud the United States” would be Trump or a member of his campaign team, and the allegation would be that he or she had conspired with one or more other persons or entities to defraud the United States — at least one of these other persons being the Russian government or a Russian national acting on behalf of the Russian government to interfere in the election. “One or more other members” could also include other Trump campaign members involved in the alleged conspiracy.
Note also that a finding by Mueller of a Trump-Russia conspiracy would involve an allegation that there were two overt acts involving a quid pro quo agreement. The quid pro quo might, for example, involve an agreement by Russia to engage in cybercrime to assist the Trump campaign, and a reciprocal agreement by Trump and his campaign to lift U.S. sanctions against Russia in the event that Trump got elected.
Emphases in the following are mine.
6.18.371B Conspiracy “To Defraud the United States” — Basic Elements (18 U.S.C. § 371)
Count (no.) of the indictment charges that on or about the___ day of _______, 2__, in the _______ District of _______, (name) agreed or conspired with one or more other persons to defraud the United States and that, to further the objective of the conspiracy, one member of the conspiracy committed at least one overt act, (as alleged in the indictment) (as I will describe to you).
It is a federal crime for two or more persons to conspire or agree to defraud the United States or any of its agencies, even if they never actually achieve their objective. A conspiracy is a kind of criminal partnership.
In order for you to find (name) guilty of conspiracy to defraud the United States, you must find that the government proved beyond a reasonable doubt each of the following four (4) elements:
First: That two or more persons agreed “to defraud the United States,” as charged in the indictment. “Defraud the United States,” means to cheat the United States government or any of its agencies out of money or property. It also means to obstruct or interfere with one of the United States government’s lawful functions, by deceit, craft, trickery, or dishonest means;
Second: That (name) was a party to or member of that agreement;
Third: That (name) joined the agreement or conspiracy knowing of its objective to defraud the United States and intending to join together with at least one other conspirator to achieve that objective; that is, that (name) and at least one other alleged conspirator shared a unity of purpose and the intent to achieve a common goal(s) or objective(s), to defraud the United States; and
Fourth: That at some time during the existence of the agreement or conspiracy, at least one of its members performed an overt act in order to further the objective of the agreement.
I will explain these elements in more detail.
Some of the further jury instructions seem particularly relevant to the Mueller probe of Russian interference in the election.
6.18.371C Conspiracy — Existence of an Agreement
The first element of the crime of conspiracy is the existence of an agreement. The government must prove beyond a reasonable doubt that two or more persons knowingly and intentionally arrived at a mutual understanding or agreement, either spoken or unspoken, to work together to achieve the overall objective of the conspiracy, [to commit the offense(s) of (state offenses)] [to defraud the United States].
The government does not have to prove the existence of a formal or written agreement, or an express oral agreement spelling out the details of the understanding. The government also does not have to prove that all the members of the conspiracy directly met, or discussed between themselves their unlawful objective(s), or agreed to all the details, or agreed to what the means were by which the objective(s) would be accomplished. The government is not even required to prove that all the people named in the indictment were, in fact, parties to the agreement, or that all members of the alleged conspiracy were named, or that all members of the conspiracy are even known. What the government must prove beyond a reasonable doubt is that two or more persons in some way or manner arrived at some type of agreement, mutual understanding, or meeting of the minds to try to accomplish a common and unlawful objective.
You may consider both direct evidence and circumstantial evidence in deciding whether the government has proved beyond a reasonable doubt that an agreement or mutual understanding existed. You may find the existence of a conspiracy based on reasonable inferences drawn from the actions and statements of the alleged members of the conspiracy, from the circumstances surrounding the scheme, and from evidence of related facts and circumstances which prove that the activities of the participants in a criminal venture could not have been carried out except as the result of a preconceived agreement, scheme, or understanding.
6.18.371D Conspiracy — Membership in the Agreement
If you find that a criminal agreement or conspiracy existed, then in order to find (name) guilty of conspiracy you must also find that the government proved beyond a reasonable doubt that (name) knowingly and intentionally joined that agreement or conspiracy during its existence. The government must prove that (name) knew the goal(s) or objective(s) of the agreement or conspiracy and voluntarily joined it during its existence, intending to achieve the common goal(s) or objective(s) and to work together with the other alleged conspirators toward (that) (those) goal(s) or objective(s).
The government need not prove that (name) knew everything about the conspiracy or that (he) (she) knew everyone involved in it, or that (he) (she) was a member from the beginning. The government also does not have to prove that (name) played a major or substantial role in the conspiracy.
You may consider both direct evidence and circumstantial evidence in deciding whether (name) joined the conspiracy, knew of its criminal objective(s), and intended to further the objective(s). Evidence which shows that (name) only knew about the conspiracy, or only kept “bad company” by associating with members of the conspiracy, or was only present when it was discussed or when a crime was committed, is not sufficient to prove that (name) was a member of the conspiracy even if (name) approved of what was happening or did not object to it. Likewise, evidence showing that (name) may have done something that happened to help a conspiracy does not necessarily prove that (he) (she) joined the conspiracy.
You may, however, consider this evidence, with all the other evidence, in deciding whether the government proved beyond a reasonable doubt that (name) joined the conspiracy.
6.18.371F Conspiracy — Overt Acts
With regard to the fourth element of conspiracy — overt acts — the government must prove beyond a reasonable doubt that during the existence of the conspiracy at least one member of the conspiracy performed at least one of the overt acts described in the indictment, for the purpose of furthering or helping to achieve the objective(s) of the conspiracy.
The indictment alleges certain overt acts. The government does not have to prove that all of these acts were committed or that any of these acts were themselves illegal. Also, the government does not have to prove that (name) personally committed any of the overt acts. The government must prove beyond a reasonable doubt that at least one member of the conspiracy committed at least one of the overt acts alleged in the indictment and committed it during the time that the conspiracy existed, for the purpose of furthering or helping to achieve the objective(s) of the conspiracy. You must unanimously agree on the overt act that was committed.
6.18.371G Conspiracy — Success Immaterial
The government is not required to prove that any of the members of the conspiracy were successful in achieving any or all of the objective(s) of the conspiracy. You may find (name) guilty of conspiracy if you find that the government proved beyond a reasonable doubt the elements I have explained, even if you find that the government did not prove that any of the conspirators actually [committed any other offense against the United States] [defrauded the United States].
Conspiracy is a criminal offense separate from the offense(s) that (was) (were) the objective(s) of the conspiracy; conspiracy is complete without the commission of (that) (those) offense(s).
Note that the instructions tell jurors that 18 U.S.C. § 371 covers more than conspiracies to cheat the United States government or any of its agencies of property or money. The instructions tell jurors that it is also a violation (a felony) to conspire to “obstruct or interfere with one of the United States government’s lawful functions, by deceit, craft, trickery, or dishonest means.”
THE MUELLER INDICTMENT OF THE INTERNET RESEARCH AGENCY
We are now in a position to see how Mueller uses the default statute in the indictment of Russia’s Internet Research Agency (IRA), filed 18 Feb 2018. While this indictment does not include indictments of any U.S. citizens for engaging in this conspiracy, it does indict the following: the IRA; Yevgeniy Viktorovich Prigozhin, the owner of the IRA (and an oligarch who is very close to Vladimir Putin); two other entities owned and controlled by Prigozhin; and twelve other individuals employed by or associated with the IRA. These individuals and entities have been indicted by Mueller for unlawfully interfering with the U.S. 2016 presidential election, and the indictments reference the defraud prong of 18 U.S.C. § 371.
The Introduction to the indictments states that it is a lawful function of the United States to protect its elections against the kind of activities alleged against the IRA, as follows: http://tinyurl.com/yaetr9ff
1. The United States of America, through its departments and agencies, regulates the activities of foreign individuals and entities in and affecting the United States in order to prevent, disclose, and counteract improper foreign influence on U.S. elections and on the U.S. political system. [emphases mine] U.S. law bans foreign nationals from making certain expenditures or financial disbursements for the purpose of influencing federal elections. U.S. law also bars agents of any foreign entity from engaging in political activities within the United States without first registering with the Attorney General. And U.S. law requires certain foreign nationals seeking entry to the United States to obtain a visa by providing truthful and accurate information to the government. Various federal agencies, including the Federal Election Commission, the U.S. Department of Justice, and the U.S. Department of State, are charged with enforcing these laws.
Note that none of the election campaign activities that the IRA is alleged to have engaged in fit within the recognized permissible ways in which foreign actors might try to influence a U.S. election. For example, foreign governments can openly state their preference for one of the candidates (though this is deemed to be highly improper diplomatically); under the First Amendment, foreign owned and controlled media companies (like RT, formerly Russia Today) can openly propagandize for and against candidates in a way that clearly seeks to influence a U.S. election (RT, however, must now register as a foreign agent in the US); non-profits in the U.S. can accept contributions from foreign actors, including foreign governments, to finance issue-oriented ads during political campaigns, but such contributions cannot be used to openly support or oppose any political candidate, and must also be clearly segregated in the organization’s accounts from all other funds; and agents registered as lobbyists under the Foreign Agents Registration Act can make their own individual contributions and work as volunteers for a candidate, but the organization that the lobbyist works for may not do so.
None of the alleged actions taken by the IRA during the last presidential election fit these descriptions. Not even close. All the alleged activities were, in the words of the indictment, activities that the U.S. government, through its departments and agencies, is responsible to “prevent, disclose, and counteract.”
APPLYING 18 U.S.C. § 371 TO THE TRUMP CAMPAIGN: THE 9 JUNE 2016 MEETING IN TRUMP TOWER
We are now in a position to assess how the defraud statute applies to the Trump campaign. It will be useful to begin with the meeting held between Russians and high ranking Trump campaign members (Paul Manafort, Jared Kushner, and Don Jr.) on 9 June 2016 in Trump Tower.
There are two essential components of the defraud statute: an agreement or intention to conspire, and at least one overt act. The June 9 meeting is of interest in showing beyond any doubt that the Trump campaign was interested in participating in a conspiracy to defraud the United States as defined in the defraud statute. It is true that the campaign team was disappointed in what Natalia Veselnitskaya offered the campaign, but that is irrelevant for the purpose of establishing whether there was an intention or willingness to conspire.
While we don’t know everything that we would like to know about the meeting, what we do know leaves no doubt that the Trump team would have carried out an overt act or acts in furtherance of a conspiracy with Russia if they had been offered something that they had deemed to be useful.
We have hard evidence of that in the email that Rob Goldstone sent to Don Jr. Goldstone is a mutual acquaintance of the Trump family and the Agalorovs (father and son), an oligarch family that is close to Vladimir Putin and other high ranking government officials. It was not Goldstone who wanted the meeting; he requested it on behalf of Natalia Veselnitskaya, a Russian lawyer who is known to U.S. intel as a Kremlin agent.
The smoking gun establishing intention to conspire is in the following email exchange between Rob Goldstone and Don Jr. [emphases mine] http://tinyurl.com/yc3skux2
3 June 2016
Rob Goldstone to Trump Jr
Emin [Agalarov, a Russian pop star represented by Goldstone] just called and asked me to contact you with something very interesting.
The Crown prosecutor of Russia [Yuri Chaika] met with his father Aras [a Moscow-based developer who tried to partner with Trump in a hotel project] this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary [Clinton] and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr Trump — helped along by Aras and Emin.
What do you think is the best way to handle this information and would you be able to speak to Emin about it directly?
I can also send this info to your father via Rhona [presumably Rhona Graff, Trump’s longtime executive assistant], but it is ultra sensitive so wanted to send to you first.
Trump Jr to Goldstone
Thanks Rob I appreciate that. I am on the road at the moment but perhaps I just speak to Emin first. Seems we have some time and if it’s what you say I love it especially later in the summer. Could we do a call first thing next week when I am back?I
The very fact that the Russian government was offering information that it wanted to get to the Trump campaign (and to Trump himself) and that the Trump campaign eagerly accepted and arranged for the meeting shows that Team Trump was willing (and in fact eager) to participate in a Russian conspiracy to interfere in the campaign in violation of 18 U.S.C. § 371.
Trump and his defenders have tried to explain away the meeting as innocuous, but the reasons they have given are spurious.
The campaign team was disappointed in what Veselnitskaya and Yuri Chaika had to offer them. (Indeed, the Trump campaign seemed to have a hard time understanding what Veselnitskaya was driving at and why she thought the information could even be useful to them.) But that fact is irrelevant to whether 18 U.S.C. § 371 applies to it or not. The fact that something was offered that one party thought would be valuable to the other party, and that the second party was willing to accept it if it proved to be valuable in their estimation, is enough to establish a corrupt intent for the purposes of 18 U.S.C. § 371.
Nor is it any justification of the June 9 meeting that it was only “information” that was transferred. The meeting discussed the transfer of information from a foreign actor to a political campaign. The transfer of that information, therefore, was not protected by the First Amendment. Veselnitskaya would not have been in violation of U.S. election law if she had offered the same information to, say, the New York Times or the Washington Post for them to publish, because publishers have First Amendment protection. But she did not do that. She offered the “information” in a clandestine manner to the Trump campaign in the hopes of participating in a conspiracy against U.S. election law, and a political campaign is not a publisher enjoying First Amendment protection.
In case this is not sufficiently obvious on its face, consider the following scenario. Imagine that Natalia Veselnitskaya had decided to register as a foreign lobbyist with the Attorney General of the United States. She appears at one of the offices and declares: “Hello, my name is Natalia Veselnitskaya. I am a Russian national, and I want to register with your office because I want to contact the Trump campaign and present to them materials that I and the Prosecutor General of Russia believe would be useful to the Trump campaign. We believe that the publication of these materials would be harmful to the Clinton campaign.”
This is, of course, a preposterous scenario, because Veselnitskaya (and the Russian government) were acting in a clandestine way to conspire to interfere in a U.S. election. And it is exactly that kind of activity that the Department of Justice, the FBI, the U.S. intelligence community, and the Federal Election Commission are responsible for preventing, disclosing, and counteracting.
Intention is one of the hardest things to prove in court. That is why the undeniable evidence of a willingness to participate in a conspiracy in the Goldstone-Don Jr. correspondence will be so important to the Mueller prosecution.
TRUMP-RUSSIA COLLUSION WAS IN THE MAKING — VERY POSSIBLY EVEN A DONE DEAL ALREADY — AT THE TIME OF THE JUNE 9 2016 MEETING IN TRUMP TOWER
There is evidence that a conspiracy between the Trump campaign and Russia may already have been in place at the time of the Trump Tower meeting. Recall the very incriminating remark by Rob Goldstone in his email dated June 3: “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr Trump.” This is important evidence that the Russian government’s decision to support the Trump campaign had already been made before June 9. And it is remarkable that no one in the meeting was surprised by Goldstone’s remark. It is like the Sherlock Holmes story about the dog that didn’t bark.
Sir Arthur Conan Doyle: The Adventure of Silver Blaze
Don Jr.’s reply “if it’s what you say I love it specially later in the summer” is also significant. The meeting in Trump Tower took place six days after Goldstone’s email, so the reference to “later in the summer” cannot refer to the Trump Tower meeting, but to something else. Of course, something of immense significance to the 2016 campaign for the presidency did happen “later in the summer”: the release by Wikileaks, a known Kremlin cut-out, of the DNC-Clinton emails. The first tranche of these emails, which proved to be devastating to the Clinton campaign, was released by Wikileaks “later in the summer” — on July 22, 49 days from the date of the Goldstone email and 46 days from the date of the Trump Tower meeting.
The very incriminating Goldstone-Don Jr. correspondence provides evidence not only that a conspiracy was underway at the time; it also suggests that the Trump campaign (and therefore Trump) knew about the hacking of the DNC emails, and that they expected Goldstone and Veselnitskaya to give them information about that. No wonder they were disappointed with what she brought them.
That Trump was expecting advance information from Russia about damaging anti-Clinton emails is more than mere speculation, because we know that on 26 April 2016 (44 days before the June 9 meeting in Trump Tower), Joseph MIfsud told Papadopoulos that he had met with high-level Russian officials who had told him the Russians had “dirt” on Hillary Clinton, including “thousands of emails.” It is inconceivable that this information did not get to the highest levels of the Trump campaign, including Trump himself. Paul Manafort, who in late March of 2016 had become de facto chairman of the Trump campaign, would have known about the “dirt” the Russians had on Clinton in the form of “thousands of emails,” and surely the other two high ranking members of the Trump campaign at the June 9 meeting — Jared Kushner and Don Jr. — would have known about it as well.
There is also SIGINT (signals intercepts) that Trump-Russia collusion preceded even the disclosure by Joseph Mifsud to George Papadopoulos of the hacked DNC-Clinton emails.
European intelligence officials first intercepted communications between Trump associates and Russian operatives as early as August 2015. The intercepts were reportedly of such concern that the head of the British intelligence service, Robert Hannigan, passed the intelligence directly to CIA chief John Brennan. In the next several months, intelligence agencies in several countries, including the UK, Germany, Estonia, Poland, and Australia, passed information to the U.S. regarding interactions between the Trump campaign and Russian operatives. (The Guardian, 13 April 2017).
The Dutch domestic intelligence service AIVD had access to the Russian hacking group Cozy Bear for at least a year starting in mid-2014.
The Dutch government alerted the U.S. to Russian interference in the 2016 presidential election after Netherlands-based officials watched the hacking of the Democratic National Committee as well as other operations by the Russians, including a 2014 State Department hack. (WaPo, 26 Jan 2018).
On 12 January 2017, veteran BBC journalist Paul Wood reported that in April of 2016 (therefore long before the 9 June 2016 Trump Tower meeting), CIA director John Brennan was shown intelligence that worried him. It was — allegedly — a tape recording of a conversation about money from the Kremlin going into the U.S. presidential campaign through Trump’s associates. Paul Manafort, who had joined the Trump campaign in late March, was likely one of these associates. Manafort is an adept in the dark art of money laundering, as the Mueller indictments of Manafort and his associate Rick Gates show.
Although it refers to the post-election period, it’s worth including another report as well: On 1 March 2017, the New York Times reported that American allies, including the British and the Dutch, had provided information describing meetings in European cities between Russian officials and others close to Vladimir Putin and “associates” of President-elect Trump. Separately, the Times says, American intelligence agencies had intercepted communications of Russian officials, some of them within the Kremlin, discussing contacts with Trump associates.
MUELLER’S METHOD: FLIPPING HIS WAY UP THE LADDER
18 U.S.C. § 371 lies at the heart of Mueller’s legal strategy and his theory of the case. This statute is a conspiracy statute, closely related to the RICO statute. As its name implies (RICO means Racketeer Influenced and Corrupt Organizations Act), RICO is directed against organizations formed for the purpose of a conspiracy.
Mueller and other members of his team (like Andrew Weismann and appellate law legal eagle Michael Dreeben) are all experienced in 18 U.S.C. § 371 and RICO litigation. A former F.B.I. senior official who worked under Mueller has said:
“This investigation is classic Mueller: he is doing a classic, organized crime case. This is RICO 101, working your way up and sideways. You pop a few guys for gambling, and no one is going to do a million years for gambling, but you’re gonna get their scratch pads, then you move on to their associates. You flip one guy who you arrest with no fanfare. It’s exactly what Mueller has been doing his whole goddamn life. It’s just that this time the boss of the family happens to be the leader of the free world.”
The essence of conspiracy investigations is a very methodical, step by step, disciplined procedure of flipping your way up the ladder. This is exactly what Meuller is doing.
There is one definite advantage of this approach that needs to be noted.
As we’ve seen, there is significant SIGINT evidence for Trump Russia collusion during the campaign. Leaks about this SIGINT have come from veteran reporters in the mainstream media. Such stories have to be supported by three independent, qualified sources before they are approved for publication by the editors. The SIGINT cited above undoubtedly exists. It has no doubt been invaluable for Mueller as a guide in his probe, and for us to understand the lay of the land from available public sources.
But for prosecutors there is a problem with SIGINT: it is virtually never used in court, because U.S. intelligence agencies are loathe to expose their methods and sources in court. This is particularly true here, where some of the most valuable intelligence has come from friendly foreign intelligence sources, especially our Five Eyes allies.
Mueller’s M.O. of “flipping up the ladder” avoids this problem. To get a Trump associate or campaign member to flip, Mueller doesn’t need to use the electronic intercepts that are undoubtedly available to him: he can rely on crimes committed by the target (even crimes that have nothing to do with the collusion) to do this. It’s like climbing a wall with a ladder and then kicking the ladder away once you’ve reached the top.
The electronic intercepts and whether they exist is a matter that came up in the Manafort litigation that is before Judge T.S. Ellis’ court in Alexandria, Virginia.
In discovery, a pre-trial phase of litigation, the prosecution is required to provide the defense with all the documents it has, including any exculpatory evidence, that it intends to introduce in the trial. Manafort’s lawyers, of course, knew that signals intercepts allegedly about Manafort had been reported by some leading mainstream newspapers, and they obtained from Judge Ellis an order requiring Mueller to turn over any intel of this sort that he had. The Office of Special Counsel replied that it had none.
Trump’s defenders exulted. Manafort’s lawyers claimed that this meant that SIGINT impeaching Manafort did not exist. But this is entirely unwarranted, because the prosecution is only required to turn over documentary evidence that is pertinent to the trial, and Mueller has been very careful not to introduce collusion-related matters in either the Virginia or Washington DC courts. So he has not put himself in a position where he is required by the federal rules of discovery to disclose the campaign-related SIGINT that he undoubtedly has. Nor will he ever have to do so, given his methodology of flipping witnesses. The evidence will be provided by witnesses who will testify about what they know about Trump based on their personal interactions with him.
It has has been widely acknowledged, even by critics, that Mueller and his team are exceptionally good at their jobs. This is the kind of thing that makes one think so.
Trump is up against the A team.
TITLE 50 AND TITLE 22 OF THE U.S. CODE
Besides the defraud statute, two other statues of the federal code have been in play in the Mueller probe: Titles 50 and 22.
Title 50 of the U.S. Code concerns matters of WAR AND NATIONAL DEFENSE. 50 U.S. Code Chapter 36 concerns FOREIGN INTELLIGENCE SURVEILLANCE. 50 U.S. Code Subchapter I covers ELECTRONIC SURVEILLANCE. This subchapter of the Code is the Foreign Intelligence Surveillance Act (FISA).
Surveillance of Paul Manafort and Carter Page was conducted under warrants granted by FISC (the FISA court). Recently, highly redacted copies of the original FISA warrant against Carter Page and three of its renewals were made available, due to unprecedented pressure from the House Intel Committee under the chairmanship of Devin Nunes.
The warrant application for Page made the case that Page was acting as a foreign agent (of Russia). There has been a lot of confusion (including on the part of Page himself, who seems to be confused about many things) about what the allegation of being a foreign agent means.
Page seems to assume that a foreign agent could only be a spy, engaging in espionage like the Rosenbergs or characters in a Graham Greene or John Le Carré novel. Page has made a big point of saying that the only thing he ever turned over to the Russians were his class notes for a course he was teaching at NYU in 2013 (to a Mr. Podobnyy, an S.V.R. officer who wanted to recruit him). Page scoffed at the idea that this constituted “intelligence gathering” or espionage.
This overlooks the purpose of FISA. Spying and intelligence gathering are certainly covered, but FISA is not limited now (if it ever was) to intelligence gathering.
The purpose of FISA, which was passed in 1978 in response to privacy abuses by the Nixon Administration, is (in the wording of the law at the very top) “To authorize electronic surveillance to obtain foreign intelligence information.” Title 1 of the Act is entitled: “ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN INTELLIGENCE
That is, the purpose of the act is to authorize surveillance to gather intelligence about what other governments or foreign entities are doing that might adversely affect the national security of the United States. U.S. citizens only come under its purview if the government has sufficient evidence to suspect them of being foreign agents of some foreign government, person, or entity, and that surveilling them would therefore help the government to obtain valuable “foreign intelligence information.”
More specifically, in these times FISA is used to find out what other intelligence services are doing to undermine the security of the US. That purview includes all three of the Russian Federation’s “security services”: the FSB (soon to be the KGB, its original name), the GRU (Russian military intelligence), and the SVR (foreign intelligence service). It is well known now (and was certainly well known to the U.S. intelligence community when the FISA applications against Manafort and Page were made) that all three of these agencies engage in a wide range of “active measures.” These measures are intended to “influence the course of world events, in addition to collecting intelligence and producing ‘politically correct’ assessment of it.”
Any FISA application would be approved that proposed surveillance of any of the activities of Russia’s three security services that met the required evidentiary standards — as would a FISA application to surveil any U.S. citizen suspected of aiding, abetting, or assisting such efforts, provided that his or her warrant application also met the required evidentiary standards.
A target of a FISA application is called (as Carter Page was in the allegations in his warrant application and renewals) an “agent of a foreign power.” An “agent of a foreign power” is defined in Title I of the statute as follows:
(b) “Agent of a foreign power” means —
acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4), irrespective of whether the person is inside the United States;
acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances indicate that such person may engage in such activities, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities;
engages in international terrorism or activities in preparation therefore;
engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or
engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor, for or on behalf of a foreign power, or knowingly aids or abets any person in the conduct of such proliferation or activities in preparation therefor, or knowingly conspires with any person to engage in such proliferation or activities in preparation therefor; or
(2) any person who —
knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities [emphasis mine] for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
Taken together, (1) and (2) mean that the statute designates as a “foreign agent”) (=”agent of a foreign power”) any “person” who is either
a non-US citizen who satisfies conditions (1)(A)-(E)
any person (whether a U.S. citizen or not) who satisfies (2)(A)-(E).
It is easy to overlook this point because (1) refers specifically to a person who is not a U.S. citizen, which on a careless reading might suggest that (2)(A)-(E) refers only to U.S. citizens. But that is not what (2) says. It refers to any person, a term that refers “any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.”
A U.S. citizen (like Paul Manafort or Carter Page), therefore, can be subject to FISA surveillance if there are sufficient grounds for believing that he or she is knowingly aiding or abetting any U.S. citizen or foreign national in the conduct of any other intelligence activities (not just intelligence gathering) or knowingly conspires with any foreign national or U.S. citizen to engage in such activities.
A U.S. citizen (like Paul Manafort or Carter Page) can also be subject to FISA surveillance more directly, if he or she, pursuant to the direction of an intelligence service or network of a foreign power, “knowingly engages in any other clandestine intelligence activities [emphasis mine] for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States.” Here, “pursuant to the direction of an intelligence service or network of a foreign power” undoubtedly would apply to any person engaged in this way if the engagement involves a quid pro quo: i.e., an agreement by the U.S. person to do something (under the direction of the foreign actor) in return for the foreign actor agreeing to do something in return.
Given the broad range of the foreign “intelligence activities” that FISA is designed to cover, there is no clear line to be drawn between an “agent of a foreign power,” which is defined in Title 50, and an “agent of a foreign principal,” which is defined in Title 22, which is another part of the U.S. code. Anyone who is engaged in the activities covered by Title 22 can become a target of a FISA surveillance if he or she is acting in a way that in the very nature of the case is clandestine.
Title 22 of the U.S. code concerns FOREIGN RELATIONS AND INTERCOURSE. 22 U.S. Code Chapter 11 concerns FOREIGN AGENTS AND PROPAGANDA. Subchapter II of Chapter 11, 22 U.S. Code concerns REGISTRATION OF FOREIGN PROPAGANDISTS. Subchapter II is the Foreign Agents Registration Act (FARA).
22 U.S. Code § 611 provides that (except for press or news services) an “agent of a foreign principal” includes any person who acts as an “agent” and “who directly or through any other person engages within the United States in political activities for or in the interests of such foreign principal.”
It is legal under FARA for any U.S. citizen or foreign national to work on behalf of a foreign government or national to advance their interests, but requires those individuals to register as “agents of a foreign principal.” An individual can be deemed to be such an agent even if there is no contract or any payment made. Even political activities are permitted if properly registered, except that advocacy for political candidates is not permitted for FARA-registered individuals or entities. Finally, it is to be noted that an “agent of a foreign principal” under FARA is not the same thing as a lobbyist. There are lobbyists for foreign principals who are not “agents of a foreign principal.” An individual or entity can try to avoid the onerous burdens of being a registered foreign agent under FARA by filing as a foreign lobbyist, but that exemption is limited and is itself problematic. So much for the frequently made claim that failing to register under FARA is just a matter — supposedly inconsequential legally — of failing to register as a foreign lobbyist.
What counts as “political activities” under FARA has been and continues to be a matter of considerable controversy, so 28 C.F.R. § 5.2(b) [Code of Federal Regulations] provides that parties can “make inquiries of the FARA Registration Unit concerning the application of the Act to contemplated activities and the Department’s present enforcement intentions with respect to those activities.” Significantly, the FARA Registration Unit is a department of the Counterintelligence and Export Control Section (CES) in the National Security Division (NSD). The place of FARA in the organizational structure of the Department of Justice shows that the matters it deals with are regarded as counterintelligence and national security issues. As of March 2016, advisory opinion requests have been answered by a Heather H. Hunt, Chief of the FARA Registration Unit, on “U.S. Department of Justice, National Security Division” letterhead.
Given the foregoing, it is easy to see how an individual (or more generally, “person”) can become a target for a FISA surveillance: all that is required are reasonable grounds to believe that the person, either a U.S. citizen or foreign national, is engaging in political activities that advance the interests of a foreign principal in a (necessarily) clandestine fashion. The person has done more than simply fail to register under FARA (something that is quite common, and rarely punished): he or she has become the target of U.S. counterintelligence for those clandestine “political activities.” In such a case, 22 U.S. Code § 611, which covers “agents of a foreign principal,” and 50 U.S. Code Chapter 36, which covers “agents of a foreign power,” point in the same direction.
THE SANCTIONS ISSUE AND THE TRUMP CAMPAIGN
Armed with the foregoing discussions about 18 U.S.C. § 371 and FISA, it is possible to discern the theory of the case that Manafort is building against Trump.
FISA is a counterintelligence statute. Designating an American citizen X as a target of FISA surveillance does not require finding probable cause that a crime is or has been committed by X. However, a FISA surveillance might uncover a crime. In the case of Manafort and Page, for example, the surveillance might have uncovered (and undoubtedly was intended to uncover) evidence that they acted to defraud the U.S. government in the election. This would be a serious matter, since 18 U.S.C. § 371 is a criminal statute that provides for fines and up to five years imprisonment per pop.
The intention by the Trump campaign to collude with Russian interference and assistance to the campaign in the 2016 election is easily established. Mueller already has that well in hand. What he needs to establish is the overt act that is the second condition required for establishing a violation of the defraud statute.
The history of the Trump campaign, together with known details about the Carter Page FISA warrants (and likely details about at least some of the Manafort FISA warrants, the texts of which are not available), strongly indicate that the overt act that establishes the Trump campaign’s violation of the defraud statute is the effort made by Trump to unilaterally lift U.S. sanctions against the Russian Federation. The overt act on the part of the Russian Federation is the well-known interference by Russia in the election to help Trump and defeat Clinton.
It was clear almost from the outset of the Trump campaign that the candidate wanted to lift the sanctions, though he never said so explicitly.
One month after announcing his campaign for the presidency, Trump was asked at an NRA convention by Maria Butina:
“If you will be elected as president, what will be your foreign politics especially in the relationships with my country? And do you want to continue the politics of sanctions that are damaging of both economy [sic]? Or you have any other ideas?”
“I know Putin, and I’ll tell you what, we get along with Putin… I believe I would get along very nicely with Putin, OK? And I mean, where we have the strength. I don’t think you’d need the sanctions. I think we would get along very, very well.”
Trump gave his first foreign policy speech at the Mayflower Hotel in Washington DC on 27 April 2016. American sanctions against Russia were not addressed in this speech. The only thing he did say is that it was possible to end the “cycle of hostility” between Russia and the U.S. if the U.S. negotiated from a “position of strength,” as he alleged he would be able to do.
“I believe an easing of tensions, and improved relations with Russia from a position of strength only is possible, absolutely possible. Common sense says this cycle, this horrible cycle of hostility must end and ideally will end soon. Good for both countries.
Some say the Russians won’t be reasonable. I intend to find out. If we can’t make a deal under my administration, a deal that’s great — not good, great — for America, but also good for Russia, then we will quickly walk from the table. It’s as simple as that. We’re going to find out.”
The event that drew the most attention to the sanctions issue during the Trump campaign was the decision by the Trump campaign to weaken the sanctions language against Russia over the Ukraine in the Republican Party platform. This was unprecedented and totally unexpected. The move received even more unfavorable attention when the Trump campaign was evasive about who had made the decision to weaken the language, and when and why it had been made. It was only a year later (3 March 2017) that J.D. Gordon acknowledged that he (Gordon) made the change to include language that he claimed “Donald Trump himself wanted and advocated for” at a March 2016 meeting in Washington, DC. of Trump’s national security advisers.
After the election, on 29 December 2016 (during the transition period), the Obama administration imposed a new set of sanctions against Russia in response to Russian meddling in the U.S. election.
Michael Flynn’s response to these sanctions (undoubtedly with the approval of, and under the direction of President-elect Trump) led to Flynn’s indictment almost a year later, on 1 December 2017. In the charging document, the world learned that Special Counsel Robert Mueller agreed to a plea bargain wherein Flynn pleaded guilty to “willfully and knowingly” making “false, fictitious and fraudulent statements” to the FBI regarding conversations with Russia’s ambassador, Sergey Kislyak. Specifically, Flynn stands accused of falsely claiming that he had not asked Kislyak on December 29, 2016, “to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia that same day.” Flynn pleaded guilty and acknowledged that he was cooperating with the investigation by Mueller.
Despite compelling evidence of Russian meddling in the U.S. election and the new sanctions the Obama administration had imposed in response, Trump plunged ahead to unilaterally lift U.S.sanctions against Russia. That effort began almost immediately after the inauguration, though the public did not learn about it until the publication on 1 June 2017 of articles by NBC News (Ken Dilanian) and Yahoo (Michael Isikoff).
Dilanian and Isikoff reported that the effort, which was made by top Trump Administration officials in the first week after the inauguration, sparked “panicky” calls from government officials, and led two former Obama officials, including one who had been the chief U.S. coordinator for sanctions policy, to lobby Congress to codify the U.S. sanctions in a way that would bar Trump from rescinding the sanctions without getting anything in return.
There was Congressional concern that the White House would refuse to implement the sanctions that had been already been passed, or that it might even rescind the sanctions. This led the U.S. Senate to pass (by a vote of 97–2) a measure that actually tightened sanctions on Russia, and prevented the White House from unilaterally easing or rescinding the sanctions that had been imposed earlier by the Obama administration.
On 2 August 2017, Trump signed a new sanctions bill into law, but only because he was forced to do so, as the bill was veto proof. Trump called the bill “flawed” because, he alleged, it contained “unconstitutional provisions.”
Since then, Trump’s deeply rooted aversion to the sanctions and his desire to rescind them without getting anything in return is harder to establish, because he has had to continue dealing with an adversarial Congress on the issue. But the actions taken by Trump to lift the sanctions in the first six months of his administration, including the first week, are truly damning.
The moves made by the Trump administration to unilaterally lift the Russia sanctions also came in the teeth of enormous negative publicity evoked by the Steele dossier, which BuzzFeed published on 10 January 2017 — just ten days before the inauguration.
The Steele dossier, which placed the sanctions issue at the very heart of what one of Steele’s sources called a “well established” conspiracy between the Trump campaign and Russia over the U.S. election, marked a watershed for the public discussion of Trump’s handling of the sanctions issue.
Here are some relevant excerpts from the Steele dossier.
On or about 23 July 23, Steele wrote (memo #095):
From the same memo #095, dated on or about 23 July 2016:
Note that this memo, and in particular its reference to the Trump team’s decision to “sideline Russian intervention in the Ukraine” and to “deflect attention away from the Ukraine” was written almost a full month before the RNC convention. The weakening of the language at the convention, which had previously supported providing Ukraine with “lethal weapons,” so alarmed Steele that he decided to alert the FBI about what his sources were telling him about Trump-Russia collusion.
Steele’s sources specified the U.S. sanctions against Russia as a central issue in the “well-developed” conspiracy between the Trump campaign and Russia. For example (memo #094, dated 19 July 2016):
From the same memo as the above (#094):
Steele’s sources even explained why the sanctions issue was so important to President Putin. From memo #130, dated 12 Oct 2016, about three weeks before the election:
And this, from memo #134, dated 18 Oct 2016:
From the same memo as above (#134):
Finally, the issue of sanctions turned out to be central to the 9 June 2016 meeting in Trump Tower, as more details about it emerged.
The meeting was first reported by the NYT on 8 July 2017. In that article, the NYT reported that Donald Jr. described the meeting as primarily about an adoption program. Then, three weeks later, WaPo reported that Don Jr’s response had been dictated by President Trump on Air Force One on a flight back to the U.S. after attending a G20 summit in Germany. But as more details about the meeting emerged, it became clear that this statement was misleading to the point of being false, because it omitted all the really important and most incriminating facts about the meeting.
On 11 July 2017, Don Jr. released the email exchange he had had on 3 June 2016 with Rob Goldstone, in which Goldstone requested that Don Jr set up a meeting for Veselnitskaya, who had materials that would be helpful as part of Russia’s interest in supporting the Trump campaign and defeating Hillary Clinton. And putting 2 and 2 together, it became clear that the meeting was not really about adoptions. The anti-adoption law that Putin had gotten passed in Russia was in response to the Magnitsky Act sanctions against Russia. There is no reason to think that Putin particularly cares about the adoptions, but he was furious about the sanctions. Clearly, the Russian government wanted the meeting in order to lobby the Trump campaign team to lift those sanctions. The materials Veselnitskya presented were intended only as a means to that end. It does appear that the Trump team was disappointed in what Veselnitskaya offered at the meeting, but that is irrelevant when the meeting, and especially the Goldstone-Don Jr. email exchange, is placed in a larger context. In the June 9 meeting, too, sanctions were there, right at the very heart of the matter.
THE SANCTIONS ISSUE AND 18 U.S.C. § 371
Recall that in U.S. conspiracy law (see the jury instructions above):
“The government must prove beyond a reasonable doubt that two or more persons knowingly and intentionally arrived at a mutual understanding or agreement, either spoken or unspoken, to work together to achieve the overall objective of the conspiracy … The government does not have to prove the existence of a formal or written agreement, or an express oral agreement spelling out the details of the understanding. The government also does not have to prove that all the members of the conspiracy directly met, or discussed between themselves their unlawful objective(s), or agreed to all the details, or agreed to what the means were by which the objective(s) would be accomplished. The government is not even required to prove that all the people named in the indictment were, in fact, parties to the agreement, or that all members of the alleged conspiracy were named, or that all members of the conspiracy are even known. What the government must prove beyond a reasonable doubt is that two or more persons in some way or manner arrived at some type of agreement, mutual understanding, or meeting of the minds to try to accomplish a common and unlawful objective.
We are now in a position to test this standard of proof against what we know about the sanctions issue and the role that it has played in the Trump Russia story. The wording of the defraud statute and the jury instructions are fairly complicated, because both are intended to cover any and all members of an alleged conspiracy. To make things easier, it probably helps to begin at the top, and imagine that the “two or more persons” who “in some way or manner arrived at some type of agreement, mutual understanding, or meeting of the minds to try to accomplish a common and unlawful objective” were Donald J. Trump and Vladimir Putin.
We know from reports in the mainstream media of early SIGINT obtained by U.S. and friendly foreign intelligence services that conspiracy foreplay between Trump and the Kremlin began as early as August of 2015. We know that the FBI and DOJ obtained FISA warrants against Carter Page as a suspected “agent of a foreign power” (i.e., Russia). Page’s surveillance might have commenced as early as 2013, and a new warrant on Page was obtained after he had left the Trump campaign in September of 2016. We know that Page’s FISA surveillance was productive because the DOJ obtained three renewals. We know that the FBI and DOJ also obtained FISA warrants against Paul Manafort as a suspected “agent of a foreign power” (Russia) going back as far as 2014, and continuing well into the period when he was manager of the Trump campaign.
We know that the sanctions issue was in play almost from the outset of the Trump campaign. We know that in mid-April 2015, Trump told an NRA conference (in response to a question from Maria Butina) that once the U.S. had a strong leader (like him and unlike Obama) the U.S. wouldn’t need the sanctions against Russia. We know that on 9 June 2016, top Trump campaign members Don Jr, Jared Kushner, and Paul Manafort attended a meeting in Trump Tower. That meeting had been agreed to in the hopes that the Trump campaign would receive damaging information about Hillary Clinton from Russia, as part of Russia’s interest in supporting the Trump campaign. We know that the Magnitsky Act sanctions against Russia, and Putin’s desire to have them rescinded, were at the heart of that meeting.
We know that in early July (about a month after the Trump Tower meeting) Carter Page went to Moscow and gave a speech there in which he severely criticized U.S. policy on Russia. We know that on 19 July 2016, former MI6 officer Christopher Steele wrote in one of his memos that an informant had told him that Carter Page had had a conversation with a high Russian official about the U.S. sanctions when he was in Moscow. We know that on or about 23 July 2016 Steele had learned through an informant that a Russian ethnic American close to the Trump campaign had said that there was a “well-developed conspiracy” between Trump and Russia. We know that on 12 October 2016, Steele wrote that an informant had told him that Page had told the Russians at the time of his visit to Moscow in early July that it was Trump’s intention to lift the sanctions.
We know that about a month after Page’s trip to Moscow, the GOP’s sanctions language was significantly weakened at the convention in Cleveland (July 18–21). Though it was denied at the time, we now know that this alteration was in response to what Trump had said to his campaign’s national security committee on March 31 — about the time that Paul Manafort joined the Trump campaign and had become its de facto manager.
We know that during the transition period after Trump’s election, Flynn had five phone calls with Sergey Kislyak, the Russian ambassador to the US. We know that these phone calls were intercepted by U.S. intelligence, and that Flynn lied about at least one of them when he told the FBI that he had not discussed sanctions with Kislyak. We know that Flynn was forced to resign from the transition team over this matter. We know that in the first week after his inauguration on January 20, Trump set things in motion to unilaterally lift U.S. sanctions against Russia, and that these plans were only thwarted because of intense Congressional opposition.
We know that the Trump campaign eagerly sought the assistance of Russia’s help in the election. We also know that Putin’s number one priority for Russia’s campaign interference in the 2016 election was to get the U.S. sanctions lifted. And while Putin had reasons independently of the sanctions issue for wanting to see Clinton defeated, it also stands to reason that he would want to tie any commitment he made to interfere on Trump’s behalf in the election to the sanctions issue. Russia’s interference in the U.S. election was a high risk venture, and Putin needed a large potential payoff to justify it. (We know from the Steele dossier that the interference was controversial within the Kremlin.) Hence the frequency with which the sanctions issue comes up in connection with RussiaGate.
All of this — all the circumstantial evidence and the mutual needs and interests of both parties — point to a quid pro quo between them: you promise to lift sanctions, and I will help get you elected. This provides the basis for an indictment and conviction of Trump and his associates for violations of 18 U.S. § 371.
Trump’s effort to unilaterally lift sanctions against Russia in the first weeks of the administration is a matter of record and is not in dispute. It clearly “completes” the conspiracy in a strong way, and the fact that Congress thwarted the effort is irrelevant, since an overt act does not need to be successful (see the jury instructions above) to establish a conspiracy against the U.S. under 18 U.S.C. § 371. All that is required is that the effort be made, and it was.
Recall also that a conspiracy can be established either through direct or circumstantial evidence. In garden-variety conspiracy cases — prosecution of mobbed up organizations in RICO cases, money laundering, tax evasion, and so on — convictions are obtained even when the prosecution has to rely heavily on circumstantial evidence to make the case (see Doyle and Okoth, referenced below). However, one would not expect Mueller to rely exclusively or even primarily on circumstantial evidence in a case as fraught and momentous as this one. Indicting a president’s campaign team and impeaching the president himself are at issue, so the standard of proof is much higher.
But there is another kind of evidence that Mueller can use to make his case: witness testimony, the best kind of evidence to use in a trial if you can get it and the witnesses are credible. In fact, it is quite possible that Mueller has the witness testimony he needs lined up already.
The intention of the Trump campaign to accept Russian assistance is clear from the June 9 meeting, and Mueller has already established — in spades — that Russia interfered in the election . What remains is to make a convincing case concerning how, when, and by whom the commitment of the Trump campaign to lifting sanctions was conveyed to the Kremlin — undoubtedly through a combination of public statements and back channeling.
There are a number of Trump associates and campaign members who were close enough to Trump to speak to that issue and give convincing trial testimony that Trump did make the commitment to Russia to lift sanctions and also give incriminating details about how the conspiracy developed and matured.
The deal could have been sealed by Manafort with the full knowledge and approval of Trump shortly after Manafort joined the campaign in late March of 2016. It is even more likely that the “agreement” or “meeting of the minds” (to use the words of the jury instructions given above) was in place when Carter Page made his trip to Moscow in early June of 2016, and even more likely that it was in place when the GOP held its convention in Cleveland in mid-August of 2016.
Some of the close Trump associates and team members who can provide testimony about the commitment to lift sanctions have already flipped, and another is clearly about to flip and become a cooperating witness. In fact, Mueller has a good shot at flipping all of Trump’s close associates — and of course corroborating witness testimony at trial is very powerful.
Michael Flynn and Rick Gates have already flipped. Flynn was very close to Trump during the campaign, and his testimony would be particularly telling because Flynn was caught lying and turned state witness over this very issue.
Steele was told by a high Kremlin official that Carter Page had confirmed on his trip to Moscow in early July 2016 that if Trump were elected sanctions against Russia would be lifted. Page has denounced the allegations in the Steele dossier as “ridiculous” and a “complete joke.” Page has also claimed that he has never met with two of the high Kremlin officials mentioned in the memos as having met with Page. However, Page has testified that he did meet with other high officials on his trip (for a second or two in passing, he claims), and that he did discuss the sanctions in Moscow. And we know that Page’s denials cannot be taken at face value: even the House Intel Committee, which is chaired by Devin Nunes, said in its final report that it was “concerned about [Page’s] seemingly incomplete accounts of his activity in Moscow.” After his FISA warrant application and renewals (which had been highly redacted) were released by the DOJ in response to intense pressure from Nunes’ committee, Page was interviewed by Jake Tapper on CNN, at which time this exchange took place:
TAPPER: “Carter, you do have relationships with Russian government officials — true? … PAGE: “Let’s see what they’re talking about.” [referring to the redacted portions of the applications — especially the renewals].
Page has acknowledged that he has been interviewed by the Mueller team.
Felix Sater was never a member of the campaign team, but he was very close to it, and has for most of his life been particularly close to Michael Cohen. I have written extensively about Sater, and have shown beyond any reasonable doubt in a number of long threads that Sater is Source E — the American Russian ethnic close to the Trump campaign — of the Steele dossier. Sater has stated publicly that he is a “source” for the Mueller probe.
Michael Cohen, Trump’s long-time personal lawyer and “fixer,” has emerged in recent days as a huge threat to Trump. Mueller sent a referral to the U.S. attorney’s office in the Southern District of New York that led to the FBI obtaining a warrant to search Cohen’s home, hotel room, and office. The FBI was looking for material evidence of Cohen’s alleged illegal business dealings, but it is significant that the referral came from Mueller’s office, which is concerned with the Russia investigations. Recent events show that Cohen has a story to tell about Trump and Russia, and wants to use that to get a plea agreement with federal prosecutors. It is likely that Cohen can provide Mueller with valuable testimony about Trump’s commitment to lift sanctions, and when and how that commitment was made to the Kremlin. Indeed, much of what is related in the early Steele memos (especially in the explosive memo #095) by Source E (i.e., Felix Sater) might have its original source in Cohen, as the two have been close friends since their high school days in Brighton Beach. Cohen and Sater also worked together on the Trump Tower hotel project in Moscow, which was only abandoned by Trump as late as May 2016, when Trump was close to securing the GOP presidential nomination.
Of course, any and all of those who do flip to complete the narrative for Trump Russia collusion can expect to be smeared by Trump and his minions. We have already seen that happening with Giuliani smearing Cohen. (Trump and Giuliani have also started smearing Mueller himself.) This will happen to anyone — Manafort, Stone, Sater, Page, Flynn, or anyone else — who gives witness testimony in a trial over RussiaGate collusion.
But the smear campaigns won’t work, as it will come down to Trump’s word against theirs, and Trump is known by all sane persons to be a pathological liar. Furthermore, incriminating evidence will back up the witness testimony. That, in fact, is the chief role that one can expect circumstantial evidence will play in Mueller’s prosecution of collusion. The circumstantial evidence will not play a central role. It will be used instead to provide heavy buttressing for the witness testimony.
WILL MANAFORT FLIP?
The most valuable witness for Mueller’s purposes would undoubtedly be Paul Manafort. That is why Mueller has been going after Manafort with hammer and tongs to get him to flip.
On 30 April 2018, the New York Times published a list of questions that Giuliani and other Trump team lawyers believed Mueller wanted to ask Trump. One of the questions — one of the most “intriguing” ones, as the Times put it in an understatement — was this: “What knowledge did you [Trump] have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?”
This is a particularly pointed and threatening question, because we know that U.S. intel has signals intercepts from the summer of 2016 that incriminate Manafort on just this point.
On 4 August 2017 CNN reported:
“In the summer of 2016, U.S. intelligence agencies noticed a spate of curious contacts between Trump campaign associates and suspected Russian intelligence, according to current and former U.S. officials briefed on the investigation.” …
“In the months that followed [the opening of the FBI investigation in July 2016], investigators turned up intercepted communications appearing to show efforts by Russian operatives to coordinate with Trump associates on damaging Hillary Clinton’s election prospects, officials said. CNN has learned those communications included references to campaign chairman Paul Manafort.” …
From the same article:
“CNN has learned that investigators became more suspicious when they turned up intercepted communications that U.S. intelligence agencies collected among suspected Russian operatives discussing their efforts to work with Manafort, who served as campaign chairman for three months, to coordinate information that could damage Hillary Clinton’s election prospects, the U.S. officials say. The suspected operatives relayed what they claimed were conversations with Manafort, encouraging help from the Russians.”
Trump himself has admitted that Manafort could hurt him. On 30 January 2018 Howard Fineman (NBC News) reported that Trump was telling friends and aides in private that things then were going well for him, one of the reasons being that Trump had decided that Paul Manafort wasn’t going to “flip” and sell him out. In other words, Trump told friends in January that he felt he had nothing to worry about from Mueller unless Manafort flipped on him. This is what we could have assumed anyway, given everything that we know about Manafort, his close associations with Russian intelligence (through Kilimnick, his main Ukrainian contact for his consulting business in Kiev), and his role as campaign manager during the most critical formative period of the campaign. But it is extraordinary to find that Trump has acknowledged to friends and associates that he feels he is safe provided Manafort does not flip on him. He is certainly wrong about that, but it is significant that Trump seems to be particularly worried about Manafort.
Mueller shouldn’t need Manafort to make his case against Trump on the sanctions issue or anything else, but it would certainly be highly desirable for him to get him to turn state’s witness. So far he has failed in this effort. Roger Stone, Manafort’s former law partner, confidant, and longtime
friend, has said that Manafort will go to trial (i.e., that he will not “flip”), and so far he has been right. This has perplexed legal experts, who believe that Manafort has zero chance of prevailing in the cases (which involve white collar crime and have nothing to do with the question of collusion with Russia) in which he has been indicted in two federal courts. It is certain, they say, that Manafort will receive what for him will be a life sentence for these charges, go to jail, and die there. So what is going on?
The prevailing view is that Manafort must be holding out for a pardon from Trump, but while a pardon from Trump cannot be completely ruled out, Manafort certainly cannot count on one.
Note, first of all, that presidents typically have two reasons for granting pardons, neither of which applies to Trump, at least at this point.
Sometimes presidents grant pardons because they feel that the person granted the pardon has been wronged and/or that a pardon would be good for the country. Or a pardon is granted because the president sees a political advantage in doing so. Neither of these reasons for granting pardons for RussiaGate-related matters applies — at least at this point — to Trump.
Trump cares only about himself and his political survival — that is clear. Trump would not lift a finger to help Manafort or anyone else unless he felt that it was in his interest to do so. And at least at this point there is no political advantage for Trump to grant a pardon to Manafort or any other associate or campaign team member. In fact, doing so would actually increase Trump’s legal and political exposure over RussiaGate, because anyone who is granted a pardon is stripped of his or her Fifth Amendment rights against self-incrimination for all the matters covered by the pardon. That means that if Trump were to pardon Manafort, for example, Manafort could then be subpoenaed by Mueller, and be forced to provide the very testimony that Mueller wants to get from him. And Manafort would have to tell Mueller the truth, the whole truth, and nothing but the truth, because perjury under questioning by federal prosecutors is a crime, carrying a potential penalty of a five year prison sentence.
It might be that Manafort is hoping that he can run out the clock on Mueller. So far, Mueller has not charged any American for collusion with Russia in the election, and there is increasing pressure on Mueller to “show his cards” or wind up the probe — something Mueller clearly does not want to do.
Consequently, Mueller’s shrewdest move now might be to issue two separate reports on RussiaGate: one on obstruction of justice, and a later one on the Trump-Russia conspiracy.
It is clear from Murray Waas’ article in The New York Review of Books on 31 July 2018 that Mueller has the obstruction of justice case against Trump in the bag. So Mueller can send a report to Rosenstein impeaching Trump for obstruction of justice anytime — either today, next week, or next month after he has questioned Trump or decided that Trump will in fact not submit to an interview. (It is virtually certain that Trump won’t submit to questioning; he has said that he will follow his lawyers’ advice, and his lawyers are strongly opposed to it.)
A damning obstruction of justice report would buy Mueller some valuable time for the collusion probe. Because the obstruction of justice report would show that Trump had obstructed justice in the Russia investigation, critics could no longer say that Mueller has only come up with charges and evidence for matters that have nothing do with collusion with Russia. The report would raise the question: WHY did Trump obstruct Mueller’s Russia investigation? What is he hiding? And that would create a political environment even worse than the present one for Trump to issue pardons to Manafort or anyone else in his campaign for the presidency.
In the foregoing I have presented the case for conspiracy as if it is a matter that will go to trial. I have done that because making a surefire legal case for conspiracy is harder than making a political case for impeachment. If Mueller can do the former, he can certainly do the latter, as the former sets a higher bar.
But it is likely that there won’t be any trial for conspiracy, for a couple of reasons.
So far as Trump is concerned, the consensus among legal scholars is that a sitting president cannot be indicted. The strongest argument for that claim is that indictments are granted by grand juries in order for the government to take the defendant to trial, with convictions typically including the penalty of imprisonment. But the Constitution contemplates only one way that a president can be removed from office: impeachment, and that is a political matter that the Constitution confers on Congress, not the courts.
So far as the others are concerned, it is unlikely that their cases will go to trial either. (Two Manafort cases have already gone to trial, but they are not for collusion-related offenses.) Most federal cases settle out of court with plea agreements. (In U.S. courts, the conviction rate for cases that do go to trial is very high — about 90%.)
Some commentators have alleged that the Trump Russia story is so complicated that it cannot be wrapped up by Mueller before the 2018 midterms. Giuliani, however, has predicted that Mueller will write a report before the end of September, in order to avoid an “October surprise.”
Giuliani’s prediction is not entirely implausible. Commentators who think otherwise seem to believe that before Mueller issues any report he must dot every i and cross every t, but he doesn’t. The Russia probe is ultimately about Trump, so Mueller must either wind down the probe or write a report that makes a dispositive case impeaching him. If Mueller can do that, even if it is only a report that addresses the obstruction of justice issue, he can — and should — do so before the midterm elections — and if not, not. A complete investigation of all things related to RussiaGate might take the FBI and the DOJ several years to finish, but that is a different matter.
Trump’s allies and his lawyers have claimed, and continue to claim, that at most Mueller will charge Trump with obstruction of justice. But this is a forlorn hope. Every person who has been questioned by the Mueller team has said that Mueller is clearly pursuing the collusion investigation with zeal and efficiency. The question is not whether Trump will be charged with collusion: the only real question is when.
Mueller has been withholding the collusion indictments until he has all his ducks in a row. Those indictments, and one or more reports to Rod Rosenstein impeaching Trump for both obstruction of justice and collusion with Russia, could come either sooner or later.
But come they certainly will. Anyone who says otherwise is in denial, engaging in gaslighting and propaganda, or simply not paying attention.
Jonathan Chait. “Will Trump Be Meeting With His Counterpart — Or His Handler?” NYMag. 8 July 2018. http://tinyurl.com/yazks8la An impressive effort at organizing a wide range of circumstantial evidence of Trump-Russia collusion.
Covington and Burling. 2018. “The Foreign Agents Registration Act
(‘FARA’): A Guide for the Perplexed.” http://tinyurl.com/yc6rx8s2
Charles Doyle. 2016. “Federal Conspiracy Law: A Brief Overview.” Congressional Research Service. http://tinyurl.com/y7pn4y8v
Federal Law Enforcement Training Centers (FLETC). n.d. “Federal Conspiracy Law”. http://tinyurl.com/ya8lj7f3
Juliet Okoth, The Crime of Conspiracy (Springer, 2014). Pp. 16–17. http://tinyurl.com/y7gevomy
I have written extensively on the Steele dossier and Felix Sater (Source E of the dossier). See especially:
Nov 29, 2017. “THE ‘PEE-TAPE’ EXISTS. Here’s why we can be sure that it does.” 29 Nov 2017, and
“Mueller, the FBI, and the dog that hasn’t barked.” 2 Feb 2018.