Mueller’s Choice of Criminal Charges: Why the Trump Team Should Be Very Worried

Ryan Goodman recently highlighted an important revelation contained in the memo written by Democrats on the House Intelligence Committee: Not only had the Russians told the Trump campaign that they had dirt on Hillary Clinton in the form of thousands of emails, but they had also previewed for George Papadopoulos, a foreign policy adviser on the campaign, that they could help with disseminating them.

This revelation would suggest significant legal exposure on its own. But when viewed within the broader context of what we know about the Russia investigation, it is further evidence of an extremely troubling pattern of interactions between the Trump campaign and Russia-linked operatives, which show an intertwining of two campaigns to elect Donald Trump: one run out of Trump Tower and one run out of the Kremlin.

Goodman and the experts he spoke with identified four types of actions that could create criminal liability for the Trump team stemming from this new information: If the campaign consulted with the Russians on their plans to disseminate the emails; if the Trump campaign gave tacit assent or approval or support; if Trump officials intentionally encouraged the Russians; or if they sought to conceal the facts of a crime. Just looking at the publicly available information shows the outlines of a potential legal case against members of the Trump team along these very lines.

As campaign finance law expert Paul S. Ryan points out, campaigns cannot coordinate with foreign nationals on any expenditure that seeks to influence a U.S. election. Coordination includes cooperation, consultation, or acting in concert with, or at the request or suggestion of the candidate or his team. A key word is “or”—each of those actions could independently suffice to establish a violation.

The emails to set up the now infamous June 9, 2016, Trump Tower meeting contain a particularly incriminating piece of evidence on this score. While significant focus has been given to Donald Trump Jr.’s enthusiastic response to the offer of damaging information on Clinton as “part of Russia and its government’s support for Mr. Trump,” equal attention should be paid to the rest of his response, in which he says that such information would be helpful “especially later in the summer.” In this statement, Trump Jr. was not only communicating a willingness to collude with Russia; he was also telling them when the campaign thought the release of such information would be most politically useful. What’s more, as Bob Bauer has noted, when Trump Jr. told the Russian lawyer the information that she presented on Clinton-related donors was not valuable, he “aided the Russians by providing access to its judgments about attacks that would be ineffective.” That too was a form of consultation and assistance.

After Trump Jr. shared his assessment of the best timing for the release of damaging material on Clinton, WikiLeaks, which the U.S. Intelligence Community assessed with high confidence was provided the stolen Democratic emails by Russia, released a slew of emails later that summer right before the Democratic National Convention, exacerbating divisions within the Democratic Party and undermining the convention’s unifying message.

This was not the only instance when the Russian and American campaigns to elect Trump appeared to be well-coordinated. Perhaps the starkest example was the timing of WikiLeaks’ release of the hacked emails of John Podesta, chairman of the Clinton campaign. His emails were made public a scant 29 minutes after the Washington Post broke the story late on a Friday afternoon of the Access Hollywood tape in which Trump bragged about sexually assaulting women. This move was guaranteed to blunt the negative effects of the Post story, but also dampened coverage of WikiLeaks’ release. What makes little sense as a strategy for an independent organization seeking attention and page views makes perfect sense for a campaign seeking to limit damage to its candidate.

Moreover, despite widespread reporting that the Trump campaign was disorganized and unfocused, it proved surprisingly effective at weaponizing the Clinton-linked emails released by WikiLeaks. Trump mentioned the website 164 times—an average of more than five times per day—in the final month of the campaign, including during all three presidential debates. In one notable instance, the Trump campaign and its supporters were very quick to find and highlight a supposedly anti-Catholic email from 2011 among the many pages of Podesta’s emails that were released by WikiLeaks. The email was used to attribute bias to Clinton in an effort to drive down her numbers among Catholics, a particularly important voting demographic in the Rust Belt states that Trump was targeting.

Goodman notes that the Trump team would also face legal liability for participating in the Russian conspiracy to defraud the United States, for which Special Counsel Robert Mueller indicted 13 Russian nationals and three Russian companies, if they provided tacit assent or support for their activities. Trump Jr.’s affirmative response to the offer of help from the Russian government is an important data point, as is Trump’s repeated use of the leaked emails on the campaign trail. We now know that Trump Jr. was also exchanging private messages with Wikileaks both during and after the campaign. In one instance, Trump tweeted about the hacked emails just 15 minutes after WikiLeaks messaged Trump Jr. suggesting his father promote them. Trump Jr. wasn’t the only person talking with Wikileaks; both Roger Stone and the head of Cambridge Analytica, a firm the Trump campaign employed to help with data analytics, were also reportedly in contact with them.

Members of the Trump campaign could also be subject to liability for acting as accomplices to the Russians by actively encouraging them in their illegal actions. While we do not know how Papadopoulos and others on the campaign reacted to the specific information regarding the potential dissemination of the emails, we do know that the Trump campaign was supportive of Papadopoulos’ repeated efforts to set up meetings between the campaign and Russia after he learned of the emails. In one instance, Sam Clovis, national campaign co-chairman, responded to a Papadopoulos email about the campaign meeting with Russian leadership by telling him he was doing “great work.”

We also know that the Trump campaign was actively encouraging the Russians to continue their hacking efforts. Trump himself explicitly called on Russia to steal Clinton’s emails in July 2016. This public request, which some have brushed off as a joke or too obvious to be viewed as genuine, takes on greater significance in light of reports in the Steele dossier from that summer that the Russians were becoming concerned about the political fallout from their hacking efforts, and were looking to lay low in the near future. If these claims are accurate, then Trump’s exhortation could have been an attempt to buck up a now-recalcitrant partner and make sure they continued their efforts to help his campaign. It may have also been a way for the candidate himself to communicate unmistakably to Moscow that he was supportive of Trump Jr. and other affiliates’ interactions with the Russians.

Finally, Goodman notes that the Trump team could potentially have committed a crime by helping to conceal any felony committed by Russian operatives. Here the publicly available information is sparse about exactly who in the campaign knew about which aspects of Russian efforts to undermine the election, and what actions they took as a result.

But what we do know is that the Trump team undertook a massive effort to cover-up its collusion with Russia. They repeatedly denied any contacts with Russian officials, calling the claims “absurd,” “disgusting,” and even “dangerous.” But subsequent reporting, admissions, and indictments have revealed there were many, many contacts between the Trump team and Russia-linked operatives, including numerous in-person meetings. Knowledge about these contacts was widespread in the campaign: Donald Trump Jr., Jared Kushner, Paul Manafort, Rick Gates, Jeff Sessions, Sam Clovis, and Corey Lewandowski all knew, as did many others. Yet no one on the campaign ever revealed these contacts or told the authorities about Russia’s hacking and offers of help. In fact, they actively participated in the cover-up by lying about their contacts every step of the way. There’s no question that the Trump team was hiding its contacts with Russia-linked operatives—the only question is whether that cover-up exposes them to criminal liability as a result.

In the final analysis, we know there were two campaigns trying to elect Donald Trump, that the Trump campaign was eager to work with its Russian counterpart, and that they had repeated and frequent contacts with Russia-linked operatives. We know that the two campaigns adopted similar strategies and appeared to act in concert during critical moments of the election season. And we know that despite widespread knowledge within the Trump campaign of these contacts, the Trump team did everything in its power to cover it up. That included not only lying to the public but also lying to federal authorities. In short, we know that they colluded. What remains to be found is the extent of that collusion and the legal liability that may result from it.

But given the information that has already been made public, it seems highly likely that we’ll see more indictments before the Mueller investigation is over.

(Saul Loeb-Pool/Getty Images)

 

About the Author(s)

Sam Berger

Senior Adviser at the Center for American Progress, Former Senior Policy Adviser at the White House Domestic Policy Council, Former Senior Counselor and Policy Adviser at the Office of Management and Budget