The Withering of the Giuliani Defense of “No Crime of Collusion” in Wake of Roger Stone’s Indictment

The Roger Stone indictment should be considered in light of the many recent statements that the president’s counsel, Rudy Giuliani, tossed out in recent weeks. Giuliani insisted on the narrowest possible definition of “collusion,” excluding anything other than Donald Trump or his campaign’s direct involvement in the conspiracy to hack the DNC or the Clinton campaign’s chair emails. On Friday morning in the wake of Stone’s indictment, White House press Secretary Sarah Sanders asserted, “The question and the big thing that the Mueller investigation is supposed to center on is whether or not the President in some outrageous way colluded with Russia.” By now the president’s lawyers must believe they have a fairly good sense of his exposure on the facts of the case. Their position seems to have shifted from “no collusion,” to “no crime of collusion,” and they have tried to redirect the focus away from whether a host of campaign members colluded. Their hope may be that the Trump campaign-Wikileaks-Russia alliance is so extraordinary and unprecedented that the law cannot clearly reach it.

The Stone indictment now shows that over a number of months the Trump campaign used Stone as an intermediary—more precisely, its agent— to solicit information from WikiLeaks, a partner of Russia in a conspiracy to influence a federal election. Stone did not have to chase the campaign; the campaign reached out to him launching that initiative after it became publicly known that Russia was behind the hacked material that Wikileaks possessed and was preparing to release in increments. In fact, the campaign appears to have knocked on Stone’s door immediately after Wikileaks’ release of the first tranche of Democratic National Committee emails in July 2016. The indictment alleges that “After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior campaign official was directed to contact STONE about any additional releases and what other damaging information organization number one had regarding the Clinton campaign.”

The campaign cannot credibly argue that it did not derive value from this association. The information that the campaign thirsted to acquire with Stone’s help was central to the design of its attack on Hillary Clinton. The new indictment shows that this was a priority in the higher echelons of the campaign: that someone “directed” a senior campaign official to urge Stone in the summer of 2016 to find out what he could about future WikiLeaks releases.

We can add to this active use of a direct, covert contact to the facts already unearthed about the Trump campaign’s solicitation and encouragement of the support from the Russian government, with WikiLeaks (also a foreign national) acting as a full partner in this political “mutual aid” pact. The federal campaign finance laws prohibit foreign nationals from influencing elections – – and Americans from substantially assisting them in that illegal endeavor. The American participation is also subject to prosecution as a conspiracy to defraud the United States, which was a statutory basis for the special counsel’s indictment of Russian parties. Under these laws, the Trump campaign is clearly exposed, as an entity, along with those of its personnel who directed these activities.

It is not irrelevant to the overall judgment of whether a legal violation occurred that the campaign sent other signals to the Russian government that it was in the market for this help. After a Russian agent, in April 2016, told Trump campaign adviser George Papadopoulos of “Moscow possessing ‘dirt’” on Hillary Clinton “in the form of ‘thousands of emails,’” the campaign green-lighted Papadopoulos’ setting up a back channel meeting between the campaign and Russian officials. At Trump Tower in June of 2016, the campaign’s senior management met with Kremlin emissaries. And in July 2016, the president publicly called on the Russians to locate missing emails within the very same week the campaign reached out to Stone. The president made that statement even as he was ostensibly reserving judgment on whether the Putin regime was responsible for the hacks. He also went out of his way to declare his “love” of Wikileaks.

The indictment contains allegations that the Trump campaign was not merely cheering on Wikileaks and the Russians. On at least one occasion, Stone allegedly asked for specific material on Clinton, with specific date ranges. Did someone on the campaign ask Stone to check for this information? Who would have thought to look for it? The indictment does not say. But we also know that Stone’s intermediary proposed, and the campaign adopted, a line of attack on Clinton’s health, based on information that they believed would be supported by emails that had not yet been released.

Now the campaign is preparing to argue that so long as the information had already been stolen, it was perfectly free to conduct a strategic communications with a foreign government and its agents to acquire information about the emails or to influence the timing of the release. The campaign lawyers will likely say that the material was nothing of “value” for campaign finance law purposes, and that in any event, the First Amendment protects its receipt and use of the information.

We face, in other words, the fairly exceptional development that a presidential campaign claims a constitutional right to encourage foreign nationals to traffic in stolen information for its political benefit. Without a doubt this is a case of first impression. At the same time, as the evidence continues to develop, Mr. Giuliani’s hope of escaping with a truly technical defense, buttressed by a sweeping constitutional claim, could still come to ruin.

Attention will soon turn to what the special counsel has learned about the Trump Tower meeting in June 2016. Then the campaign clearly communicated to Russia that it was looking for its help. The president’s son arranged a meeting, and his campaign chairman and senior campaign official Jared Kushner, attended it. The president said he knew nothing about it, and of course, his and his associates’ story about what transpired in the meeting has constantly changed.

But the more that details accumulate about the extent to which this campaign would march with Russia arm-in-arm to victory in the general election, the more uncertain are the prospects for Mr. Giuliani’s claim that even if there was collusion, there was no crime. Gone are the days where “no collusion” could be voiced. We are now down to the question of whether crimes were committed and will be charged..

Photo: Roger Stone exits the federal courthouse on January 25, 2019 in Fort Lauderdale, Florida (Joe Raedle/Getty Images)

 

About the Author(s)

Bob Bauer

Former White House Counsel to President Obama (2010-2011). Professor of Practice and Distinguished Scholar in Residence at New York University School of Law.