With the Russiagate investigation much of the media attention has focused on the obstruction of justice issues that swirl around the firing of former FBI director James Comey. Perhaps the inclination is natural given the fact that the original crime in Watergate was a "third rate burglary" and it was the cover up that took down Richard Nixon. In Russiagate, the obstruction of justice efforts by Trump/his campaign and his Republican accomplices - think Devin Nunes - are concening, but the actual underlying crime or crimes far out weigh the crime that Richard Nixon foolishly tried to cover up after the fact. A somewhat lengthy piece in
The Daily Beast looks at what is known to date and puts together a telling time line for the possible - in my view, very likely - crimes that took place during 2016. Here are article highlights:
Recall
the Watergate cliché that the cover-up is worse than the crime. That may have
been true then. While it was never established that President Nixon knew in
advance about the break-in at the Watergate complex, he was forced to resign
after proof emerged that he used the CIA to obstruct the FBI investigation.
In the Russia scandal, special
counsel Robert Mueller has credible proof of obstruction of justice—i.e., the
cover-up. But in a highly politicized climate, where “memos” and insults are
weapons of distraction, that won’t likely be enough.
The fragmentary and often disconnected nature of those
reports obscures the reasonable supposition that Mueller is well on his way to
detailing conspiracy, wire fraud, illegal foreign campaign contributions, or
all three. During Watergate, the special prosecutor had most of the evidence
that doomed Nixon at least nine months before his August 9, 1974 resignation.
Mueller, too, likely has the goods already, even without “smoking gun” tapes.
One
tip-off was in Michael Flynn’s December 1 “allocution”—his signed submission to
the court as part of his guilty plea to making false statements to the FBI on
January 24, 2017. It received almost no media attention but suggested the
nature of the criminal conspiracy that would likely be at the heart of
Mueller’s prosecution.
Flynn didn’t just vaguely
admit he lied. The law doesn’t allow that. He admitted in writing that his lie
“had a material impact” on the FBI’s probe “into the existence of any links or
coordination between individuals associated with the [Trump] Campaign and
Russia’s efforts to intervene in the 2016 election.”
The
conspiracy case--the heart of Mueller’s efforts-- almost certainly boils down
to an old-fashioned quid pro quo. Flynn’s “quid”—the substance of his recorded
conversations with Russian Ambassador Sergey Kislyak— was lifting the sanctions
that President Obama imposed on Russia in late 2016 and the earlier sanctions
related to Russia’s invasion of the Ukraine. The “quo” was collusion
(“conspiracy” in legal terms) with Russians to harm Hillary Clinton’s 2016
campaign, which Flynn effectively admitted was “material” to his lies after the
election. Anyone associated with this deal is in deep legal trouble.
The conspiracy started with Russians violating the federal computer
crime statute, the Computer Fraud and Abuse Act, by hacking into the computers
at the Democratic National Committee and stealing emails that were then
distributed publicly by Guccifer 2.0 and Wikileaks—both linked to Russians— in
ways that hurt Clinton. According to the Department of Homeland Security,
Russia also tried to penetrate the voting systems of 21 states.
These actions would also violate the federal criminal statute
that bars foreign nationals from offering anything of value in a presidential
campaign. Every party to such illegal acts is criminally liable.
There
are also potential violations of the federal wire fraud statute. The evidence
of a scheme to defraud? We know that Russia’s “active measures” included
creating thousands of fictitious Twitter and Facebook accounts to generate fake
news targeted to suppress the Clinton vote. Campaign officials are criminally
liable if Mueller and his team prove an overlap between the illegal Russian
fake news posts and the Trump campaign’s routine micro-targeted negative
messages--a painstaking but manageable set of data comparisons.
In addition, the special
counsel is examining whether a Russian politician with connections to organized
crime, Alexander Torshin, routed an illegal campaign contribution to Trump
through the NRA, which is relatively easy to trace.
Conspiracy
is a much broader crime than is generally understood. The guidelines for judges
who instruct juries say that the prosecution need only prove that there was “a
mutual understanding, either spoken or unspoken, [Emphasis added] between
two or more people to cooperate with each other to accomplish an unlawful act.”
It doesn’t matter whether the
“mutual understanding” was before, during or after the crime was committed. “It
is not necessary that a defendant be fully informed of all the details of the
conspiracy, or all of its participants,” the model jury instructions continue.
“You need not find that the alleged members of the conspiracy met together and
entered into any express or formal agreement.”
Under the so-called “doctrine of willful blindness,”
reinforced by Supreme Court Justice Samuel Alito in a majority opinion in 2011,
juries are instructed to “consider whether the defendant deliberately closed
his eyes to what would otherwise be obvious to him.”
Don
Jr.’s excitement over receiving Russian dirt on Clinton, Jared Kushner’s
interactions with Cambridge Analytica and thus with Wikileaks, and Trump’s
knowledge of these or other ties to Russians and his use of that knowledge in
the campaign, all suggest such “awareness.”
Two other legal concepts are
relevant. Much of the obstruction case—from Trump interfering with the FBI
probe to re-writing his son’s statement aboard Air Force One after revelations
about Don Jr.’s meeting with the Russians--revolves around the president’s
concern that he had something to hide, also known as “consciousness of guilt.”
He also might be charged as “an accessory after the fact,” which requires only
that the defendant “receives, relieves, comforts or assists the offender in
order to hinder or prevent his apprehension.”
Now consider just a bit of
what has emerged about “mutual understanding,” “willful blindness,”
“awareness,” “assists” and “consciousness of guilt” in the Trump-Russia case,
which is in turn a fraction of what Mueller knows. As in any criminal case, the
timeline is critical:
April
26, 2016: George Papadopoulos, whom Trump named as one of his “top five”
foreign policy advisers, learns that the Russians had possession of the DNC
emails. He passes word of this to others in the campaign. Because of a “mutual
understanding,” no one calls the FBI.
Mid-May: Papadopoulos tells an
Australian diplomat in London that the Russians have compromising emails on
Clinton. The diplomat properly informs his superiors, who--unlike Trump
campaign officials--recognizes his legal responsibilities under American law to
notify U.S. authorities.
June 9: At a meeting at Trump
Tower previewed for the campaign as “part of Russia and its government’s
support for Mr. Trump,” Donald Trump Jr. listens as well-connected Russians
offer damaging information about Clinton. Jared Kushner and Paul Manafort both
say they left early, suggesting “awareness” of, or “willful blindness” to,
crimes that were underway. Again, no one contacts the FBI.
Mid-June: Kushner—assuming
control of the campaign’s digital operations— hires Cambridge Analytica, which
coordinates with Wikileaks, suggesting a possible “mutual understanding” of
what Wikileaks will do.
July
14: At the Republican National Convention, the Trump campaign deletes a plank
in the party platform that condemns Russia for invading Ukraine, and rejects a
proposal for increased sanctions, bolstering the case for the quid pro quo that
is the crux of the case.
July 22: On the eve of the
Democratic Convention, Wikileaks releases damaging Democratic emails received
from the Russians, implicating Wikileaks in the criminal conspiracy.
July 27: In a speech, Trump
says, "By the way, if they [Russians] hacked, they probably have her
33,000 emails. I hope they do.” Trump later said he was joking but it reinforces
his “awareness” of an unlawful act.
August 21: Roger Stone, a
longtime friend and adviser to Trump, shows knowledge of the conspiracy by
tweeting, "Trust me, it will soon be Podesta's time in the barrel.
October
7: Within hours of the release of the Access Hollywood tape, which
dealt a serious blow to the Trump campaign, Wikileaks releases the first in a
series of 60,000 emails belonging to Podesta. Wikileaks effectively acts as an
arm of the Trump campaign in a “mutual understanding” to deflect attention away
from the sex scandal.
December 29: Deputy National
Security Adviser-designate K.T. McFarland emails a colleague about the
aftermath of outgoing President Obama’s implementation of sanctions: “If there
is a tit-for-tat escalation, Trump will have difficulty improving relations
with Russia, which has just thrown USA election to him.”
Even without knowing any of what Mueller has learned from the
many witnesses he has secretly brought before the grand jury, this timeline—and
the jury instructions that would accompany it at trial— already offer a strong
roadmap for prosecutors. The conspiracy charges that arise from it will likely
send some of Trump’s friends and relatives to jail. And they won’t look so good
for the president, either, if presented next year at his impeachment trial in
the Senate.
