Where Mueller Might Go Next

We only know about the Russian part of the conspiracy.

Robert Mueller shakes hands with committee chairman Rep. Bob Goodlatte as he arrives at a hearing before the House Judiciary Committee June 13, 2013 on Capitol Hill in Washington, DC.
Robert Mueller shakes hands with committee chairman Rep. Bob Goodlatte as he arrives at a hearing before the House Judiciary Committee June 13, 2013 on Capitol Hill in Washington, DC.
Alex Wong/Getty Images

The indictments filed by the special counsel on Friday forcefully punctuates the warnings of intelligence chiefs that Russia has been in the business of interfering in U.S. elections and has no intention of closing up shop. Robert Mueller has also added extraordinary detail. Russian entities have spent millions and “employed hundreds” to carry out this work. The Internet Research Agency, apparently directing the program, is now revealed to have been among the largest Super PACs operating in the 2016 elections. This is now clearly one of the major campaign finance scandals in American history.

After the indictment became public, President Donald Trump rushed to Twitter to pronounce that no collusion had occurred. He has taken comfort in the indictment’s history of these activities, which show that they began as early as 2014. He should have continued reading, thought harder, and worried more. It is unlikely that his lawyers have picked this time to celebrate.

To be sure, the Russians had multiples objectives in 2016, one of which was to “sow discord” among the electorate. But eventually, they organized and funded an intense program to support Donald Trump and “disparage” Hillary Clinton. The indictment is conclusive on a critical point: The Russians were all in for Trump. We have one half of the pairing needed to show a political alliance of a presidential campaign and foreign interest.

The indictment does not settle the question of whether, for purposes of the criminal laws, the Trump campaign or its associates were willing allies. It suggests only that at the grass-roots level, among state parties and on the ground in various locales, some Trump campaign supporters were “unwitting” co-conspirators duped into collaboration with Russians posing as Americans. The prospect of Trump campaign complicity, at the organizational or staff level, has always hinged on the knowing participation of the candidate himself or key strategic personnel at the national level.

They did know that the Russians were eager for Trump’s election and to help with his election. And as Deputy Attorney General Rod Rosenstein told the press, “there is no allegation in this indictment that any American was a knowing participant in this illegal activity.” It seems that more from Mueller lies ahead: Rosentein was careful to stress that the “special counsel’s investigation is ongoing.” Indeed, just moments after Rosenstein’s public remarks, the Justice Department released the plea deal of an American apparently caught up in the Russian illegal activities.

That the Trump campaign may have had incomplete information about the full scope of the Kremlin political intervention does not excuse the part known to them, or any actions they might have taken to actively collaborate. And it seems almost certain that they appreciated that the Russians were engaged in underhanded and illegal activities: the theft of thousands of Clinton emails. How much more the Trump campaign knew or did to enhance the effectiveness of the Russian effort remains unknown. The answer will determine whether the campaign, the president or any of his senior associates will face legal consequences.

In imagining what the next turn in this investigation might reveal, it is important to pay close attention to the indictment’s account of Russian intelligence-gathering in the United States.
Like any organization spending substantial sums on a political objective, they worked hard to master the American electoral terrain and figure out what worked and what didn’t. The Russian operatives were learning about “purple states” from American sources. This was a sophisticated enterprise. It in this context that the Russian meeting with the campaign staff in Trump Tower, and later Donald Jr.’s communications with WikiLeaks, assumes greater significance.

It would have been much to the advantage of the Russians’ “Project Lakhta” to have explicit and implicit blessing from the candidate. The Project management would also have benefited from receiving from the candidate and his campaign any signals useful in perfecting their program. Some of these signals have come to light, such as Donald Jr.’s recommendation to a Russian intermediary for a late summer release of Clinton dirt.

The record is not yet clear on all that the Trump campaign may have communicated about what it hoped to gain from Moscow’s intervention. Steve Bannon, interviewed for hours by Mueller, has publicly discounted the chance that the president would not have known about the June 2016 visit from Kremlin emissaries to Trump Tower. It has been reported that the president directed the misrepresentation of the facts of the meeting, but it is not yet clear what level of knowledge he had in advance of the meeting or, if afterwards, when. But, beginning with the Papadapolous encounter with Russians telling him of thousands of stolen Clinton emails, through the Trump Tower meeting and the Donald Jr. contacts with WikiLeaks, the Russians unquestionably should have appreciated that the Trump was glad to have their help.

The indictment situates these contacts within the wider and mostly clandestine intelligence gathering operation that the Russians conducted to achieve the most effective possible impact on the presidential campaign. The Russians were more transparent in their direct encounters with the national Trump campaign. And the campaign was not “unwitting.” Those on its staff who were engaged in direct discussions with Kremlin representatives were not low-level grassroots organizers, but included the then campaign manager, Paul Manafort, a veteran of five presidential campaigns, and the president’s own son-in law. The Russians were explicit about their aims when they needed to be, and the Trump team responded favorably. The next phase of the investigation may bring out in more detail the nature and scope of that response and establish whether there are Americans, and/or the Trump campaign organization, that will share in the liability for the multi-million dollar, illegal operations of the Russian Super PAC.

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Bob Bauer is a former White House counsel to President Obama and the Professor of Practice and Distinguished Scholar in Residence at New York University School of Law.