Everyone from Trump-friendly interim Attorney General Matt Whitaker to Trump-unfriendly national security writer Marcy Wheeler agrees: Robert Mueller seems close to wrapping up his special counsel investigation of Russia’s attack on the 2016 Hillary Clinton campaign. Meanwhile, a series of major developments—new courtroom revelations in former Trump campaign chairman Paul Manafort’s case, the January indictment of longtime Trump adviser Roger Stone, and the late November admission by former Trump attorney Michael Cohen that he lied to Congress about a Moscow development project—have sharpened the picture of Trumpworld’s relationship with Russia.
But was there criminal collaboration between the president and the foreign saboteurs? On Tuesday, I spoke with Mimi Rocah, a former federal prosecutor in the Southern District of New York who’s now a distinguished fellow in criminal justice at Pace Law School, about the possibility of charging Trump or his advisers with involvement in a criminal conspiracy. As Rocah has explained previously to Slate, conspiracy—an agreement to achieve an illegal goal that can be based on either an explicit quid pro quo or a simple implicit understanding—is the actual legal concept that most closely matches the widely discussed idea of collusion. “To join a conspiracy, you need to know a general illegal purpose. You don’t have to know all the goals or the extent of it. It just has to be reasonably foreseeable,” Rocah told me. “And then, knowing that, you do something that helps to further those aims.”
On that front, previous indictments filed by the special counsel’s office have accused Russian hackers and operatives of “conspiracy to commit an offense against the United States” and “conspiracy to defraud the United States”—crimes that, according to Justice Department guidelines, involve “impairing, obstructing or defeating the lawful function of any department of government.” In these documents, Mueller’s office has asserted that Russia’s sabotage campaign interfered with the U.S. prerogative to hold elections free of foreign interference; the special counsel has also charged several individuals involved in the 2016 election with tangential crimes involving unregistered foreign lobbying. Here’s the best case that can be made using publicly available evidence that similar charges should be filed against Trump (when he leaves office, or via impeachment) and/or his top campaign advisers.
Trump (via the Trump Organization) began pursuing a lucrative real estate deal with the Russian government in September 2015. Thanks to BuzzFeed’s reporting and former Trump attorney Michael Cohen’s admissions, we know that Cohen and an ex-con named Felix Sater began pursuing the development of a Trump-branded Moscow skyscraper in the fall of 2015. (The special counsel’s office has disputed BuzzFeed’s assertion that there’s evidence Trump told Cohen to lie to Congress, but the rest of the publication’s Trump Tower Moscow reporting has proved solid.) Trump was aware of the project, signing a “letter of intent” to confirm the Trump Organization’s interest that October. Cohen and Sater had sketches of the potential building drawn up and discussed the project with banks, prospective local partners, and Russian government officials; as late as June 14, 2016, they were trying to get what you might call “juice” behind the effort by finagling a meeting with Vladimir Putin. If consummated, the deal would have involved local builders paying Trump a sizable licensing fee to put his name on the building and manage its hotel space.
The Russian government began stealing email and data from Democrats in 2016, distributed the stolen material, and engaged in social media propaganda in order to harm the Clinton campaign. According to a special counsel indictment, Russia’s GRU intelligence agency began the (illegal) process of hacking into the Democratic National Committee’s servers and Clinton campaign chairman John Podesta’s email account in March 2016. According to the special counsel, Russian operatives then distributed the stolen material via dcleaks.com, which appears to have been operated by the hackers themselves, and Julian Assange’s WikiLeaks. A separate indictment charges Russia’s “Internet Research Agency” with creating fraudulent social media accounts to spread propaganda that disparaged Clinton.
U.S. intelligence agencies say the intent of the leaks and propaganda was to benefit Russia by portraying one of its enemies behaving in crass and unflattering ways. Clinton had long been critical of Putin’s authoritarian policies and international aggression, and the U.S. intel community believes Russia thus sought not just to reduce her chances of becoming president but also to damage her public standing in order to limit the amount of power she’d have in the event that she did become president.
Trump campaign advisers were aware that Russia wanted to establish relations with the campaign and damage Clinton’s candidacy. In April 2016, court documents say, a Trump campaign foreign policy adviser named George Papadopoulos was told by a Russia-connected influence peddler named Joseph Mifsud that Russia had “dirt” on Clinton in the form of “thousands of emails.” Mifsud also told Papadopoulos that Russian officials were interested in meeting with Trump campaign figures. Papadopoulos is known to have sent emails about the Russian outreach to campaign advisers including Paul Manafort. (He also apparently discussed the “dirt” emails with an Australian diplomat at a London bar, but we don’t know if Papadopoulos knew the emails in question were stolen or if he mentioned them to Manafort.)
Then, in June 2016, a lawyer and lobbyist named Natalia Veselnitskaya arranged a meeting with Donald Trump Jr. (who worked for both the Trump Organization and the Trump campaign), Jared Kushner, and Manafort at Trump Tower in New York. The meeting, which has been described in public accounts and testimony, was set up by an intermediary who wrote to Don Jr. that Veselnitskaya wanted to provide incriminating material about Clinton to the campaign as “part of Russia and its government’s support for Mr. Trump.”
There is no evidence that the DNC or Podesta hacks were discussed at the June Trump Tower meeting; according to its participants, Veselnitskaya offered the Trump campaign officials relatively inconsequential information about potential Clinton-related campaign finance violations. However …
Russia lobbied the Trump campaign to eliminate economic sanctions. At the Trump Tower meeting, Veselnitskaya made a case to Trump campaign officials that the U.S. should revoke sanctions that limit certain Russian individuals and businesses’ access to the global financial system. In January, Veselnitskaya was indicted by federal prosecutors in New York on obstruction of justice charges for obscuring her connections to the Russian government during her work on a sanctions-related case that does not have a direct connection to Trump.
Trump (and everyone else) learned in June 2016 that Russia may have hacked the Democrats. The Washington Post published a story on June 14, 2016, revealing the DNC hack and evidence of Russian intelligence’s likely involvement therein.
The Trump campaign was reportedly receptive to the sanctions lobbying and promoted other Russia-friendly policies too. Testimony indicates that the Trump officials at the June Trump Tower meeting told Veselnitskaya and the other Russians that they would revisit the sanctions issue if Trump won the presidential race. At some later point before the election, according to a report in Mother Jones, Trump national security adviser Michael Flynn discussed sanctions with Russian Ambassador Sergey Kislyak. Flynn has also admitted to discussing sanctions during a phone conversation he had with Kislyak shortly after the election. And Yahoo News has reported that Trump officials attempted to begin the process of sanctions relief after taking office, before abandoning the project when information about Flynn’s conversations with Kislyak became public.
On another track, the special counsel says Manafort discussed a Russia-friendly plan to resolve ongoing violence in Ukraine (and lift yet another set of sanctions against Russia) with a Russia-connected business partner named Konstantin Kilimnik at an August 2016 meeting in New York City. This discussion took place after the Trump campaign had already intervened at the Republican National Convention to eliminate a Ukraine-related provision hostile to Russia—and after Trump had suggested publicly that he supported Russian positions regarding NATO and Crimea. A special counsel filing has said Kilimnik had active “ties” to Russian intelligence at the time but did not explain the basis for making that statement. Court records further suggest that Manafort shared campaign polling data with Kilimnik at the August 2016 meeting as well. (Manafort, at the time, was still campaign chairman.)
The Trump campaign allegedly sought information and assistance from WikiLeaks, an entity that it knew had possibly received material stolen by the Russian government. The special counsel’s indictment of Roger Stone alleges that an unnamed senior Trump campaign official contacted Stone—a longtime Trump adviser and associate, but one who was not officially affiliated with Trump’s presidential campaign—in July 2016, just after WikiLeaks had released some stolen DNC emails, to ask if he could find out what other Clinton-related materials WikiLeaks had. The indictment says that Stone attempted to contact WikiLeaks’ Julian Assange via intermediaries, and that he thereafter “told senior Trump Campaign officials about materials possessed by [WikiLeaks] and the timing of future releases.” At the time of this correspondence, Trump campaign advisers would have seen speculation in the press that WikiLeaks’ material was obtained from Russia’s hackers, an assertion that the special counsel has since made in court.
Trump promoted the leaked documents and said publicly that he hoped Russia would hack Clinton further. At a July 2016 press conference, Trump responded to reports of Russian hacking with what seemed at the time like a tongue-in-cheek request for the country to “find the 30,000 emails that are missing,” a reference to messages that Clinton deleted from the private server she used for official business as secretary of state before handing over its contents to the State Department. (Clinton said she deleted the emails in question on the basis that they were personal and not covered by government transparency rules.) And he spoke constantly during the closing month of the campaign about the Clinton-related material posted on WikiLeaks, making such on-the-nose endorsements of its activities as “I love WikiLeaks.”
So where does this leave us, as far as evidence that Trump or his advisers implicitly entered into an agreement to illegally impair, obstruct, or defeat the lawful functioning of the United States government? If the relevant news reports and special counsel filings are accurate, we know:
• That the Trump Organization pursued a Moscow real estate deal during the 2016 presidential campaign.
• That while this pursuit was ongoing, a well-connected Russian individual successfully scheduled a meeting with Trump campaign officials by offering “incriminating” material about Hillary Clinton, then lobbied those Trump officials for sanctions relief despite not being registered as an agent of the Russian government.
• That the Trump campaign (and everyone else) then learned that Russian operatives may have hacked Democrats and distributed the hacked material with the intent of damaging the Clinton campaign.
• That Trump advisers subsequently discussed sanctions relief with the Russian ambassador to the U.S. and met with an individual with connections to the Russian government to discuss sanctions relief and pass on proprietary polling data.
• That Trump campaign officials attempted to use surreptitious back channels to learn more about the Clinton-related material that they knew had possibly been stolen by Russia.
• That Trump’s campaign and Trump himself celebrated the existence of the stolen material and called for more of it to be stolen.
According to Rocah, the former prosecutor, “either there are a lot of coincidences here all happening at once, or people around Trump were part of this conspiracy.” She cites Manafort’s willingness to meet with Kilimnik and Trump Jr./Manafort/Kushner’s willingness to meet with Veselnitskaya as particularly tangible signs of conspiratorial agreement. (While we don’t have any evidence that the campaign knew about stolen emails before the June Trump Tower meeting, keep in mind that its participants did discuss sanctions and campaign “support” with an off-the-books emissary of the Russian government while Trump was still seeking Russian approval for a lucrative business deal.)
A trickier question, perhaps, is whether the Trump campaign’s statements—private messages and public comments conveying willingness to consider sanctions relief and eagerness to find out what material WikiLeaks had received—also constitute legally meaningful signals of agreement to participate in Russia’s conspiracy. Rocah says she thinks it would be “plausible” to make a case that such statements incentivized the country’s efforts to sabotage Clinton’s campaign and undermine previously imposed sanctions; one might analogize the situation to someone who hears his friends are planning a bank robbery and begins telling all of their mutual acquaintances, without using the words bank robbery per se, that he happens to have some great investment ideas that could be of interest to anyone who was to suddenly come into possession of large sums of cash. Rocah also notes that while discussion of Trump’s exposure to potential obstruction of justice charges has generally revolved around what he might have done as president to prevent investigation of himself and his advisers, anything he did to obstruct the investigation of Russia’s actions could also count as a sign of participation in the country’s scheme—driving the getaway car, if you will. (Bear in mind that Trump repeatedly insisted in 2016 that Russia might not have been behind the hack even after his top advisers had already met with well-connected Russians trying to distribute incriminating material about Clinton.)
The person whose read on all of these events matters most of all is Robert Mueller, and he is not available for interviews. But one way or another—whether he finishes his investigation with blockbuster conspiracy indictments of top officials and Trump family members, or simply closes up shop after having prosecuted a number of accessory cover-up crimes but no central plot—we’ll soon find out what he thinks.