As U.S. Attorney General William Barr faced grilling before the Senate Judiciary Committee yesterday over his handling of the Mueller Report, hardly anyone (among lawmakers and news analysts) mentioned Vol. 1 of the report -- the part about possible collusion between the Trump Campaign and Russian officials.
It was as if Barr's finding (and Mueller's) of "no collusion" is widely accepted as accurate, with the only remaining questions surrounding obstruction of justice. But a report from a prominent think tank, released more than five months before the redacted Mueller Report became public, raises serious questions about the accuracy of the "no collusion" finding. In other words, Team Trump is no more home free on collusion (the legal term is conspiracy) than it is on obstruction.
The Brookings Institution, on Oct. 31, 2018, issued a report titled "Considering Collusion: A Primer On Potential Crimes." It showed that publicly available information at the time pointed to violations of 18 U.S.C. 371 (Conspiracy to defraud the United States), and it named names -- specifically Roger Stone and Donald Trump Jr.
We've already shown that Barr lied to the American people about the law governing hacking of Democratic Party emails and possible dissemination by Team Trump and/or Russians. But it's almost as if the Brookings Institution knew Barr, or someone involved in the investigatory process, would try to claim there was "insufficient evidence" of collusion -- and Brookings makes a powerful case, well ahead of the Mueller Report's release, that such claims are not based in fact or law.
Before focusing on the facts of possible collusion, Brookings spells out the law (pp. 16-17 of report):
A conspiracy requires that the parties share the same agreement to defraud. An affiliate of the Trump campaign could potentially be criminally liable as a co-conspirator of the indicted Russian defendants if he or she agreed to participate in Russia’s scheme to impair any of these government functions—the most likely being interference with the FEC’s regulation of campaign expenditures. We now know that Trump campaign officials reportedly had at least 82 contacts with Russian individuals and officials during the 2016 election cycle, including the now infamous meeting at Trump Tower between Russian nationals and senior members of the Trump campaign. Those contacts potentially presented opportunities to agree to support Russian interference in the 2016 election.
But even without evidence of an explicit agreement between co-conspirators, courts permit triers of fact to infer the presence of an agreement based entirely on circumstantial evidence due to the secretive nature of conspiracies. [See United States v. Wardell, 591 F.3d 1279, 1287 (10th Cir. 2009)]. Relevant circumstantial evidence includes: concert of action among co-defendants [See United States v. Fisch, 851 F.3d 402, 407 (5th Cir. 2017)], the relationship among co-defendants, negotiations in furtherance of the conspiracy, mutual representations to third parties, and evidence suggesting “unity of purpose or common design or understanding among conspirators to achieve the goals of the conspiracy.” [See Wardell, 591 F.3d at 1287-88].
Key note: Circumstantial evidence can prove a conspiracy? Have we heard anything about circumstantial evidence from either Barr or Mueller? I'm not aware of it. Brookings then shows that extensive digging is not required on this issue in the Trump-Russia probe; the facts already were in the public realm:
Based on the known facts, there already is circumstantial evidence of possible agreements by Trump associates to conspire with the Russians. Two episodes potentially relevant to the agreement analysis are detailed in the July 13, 2018, indictment filed by the special counsel’s office against twelve Russian military intelligence officials:
The first such episode involved Roger Stone:
On August 15, 2016, Russian military officers posing as Guccifer 2.0 sent a direct message via Twitter to Roger Stone (described in the indictment as “a person who was in regular contact with senior members of the presidential campaign”) thanking Stone for “writing back” and asking him “do u find anyt[h]ing interesting in the docs i posted.” Two days later, Guccifer 2.0 added, “please tell me if i can help u anyhow it would be a great pleasure to me.” On August 21, 2016, Stone tweeted, “Trust me, it will soon [be] Podesta’s time in the barrel.” On September 9, 2016, Guccifer 2.0 and Stone discussed a document stolen from the Democratic Congressional Campaign Committee that detailed voter turnout methods.
Is this circumstantial evidence of "concert of action" and "unity of purpose" that points to conspiracy, under the law. Do these written documents go beyond circumstantial evidence?
The second episode involved Donald Trump Jr.:
On October 7, 2016, WikiLeaks (described in the indictment as “Organization 1”) released the first set of emails that Russian operatives had stolen from Clinton campaign chair John Podesta. Although not detailed in the special counsel’s indictment, we know that Donald Trump Jr. was in direct contact with WikiLeaks during this time. On October 12, 2016, WikiLeaks contacted Donald Trump Jr. via Twitter to suggest that then-candidate Trump tweet a link to the stolen emails. Fifteen minutes later, candidate Trump tweeted: “Very little pick-up by the dishonest media of incredible information provided by WikiLeaks. So dishonest! Rigged system!” On October 14, 2016, Trump Jr. tweeted the same link to Podesta’s stolen emails. If there is evidence of additional contacts between WikiLeaks and the campaign—particularly any contacts before October 7—that evidence would be probative of whether there was an agreement.
Trump Jr. did exactly what WikiLeaks asked regarding stolen emails. That's not "concert of action"?
Brookings then provides more legal analysis that shows why Stone and Trump Jr. should be in serious legal doo-doo:
In addition to sharing an agreement to impair a government function, each participant in a defraud-clause conspiracy must have known of the illegal goal and willfully joined the unlawful plan. Evidence need not show that a conspirator had specific knowledge of the regulations or government functions alleged to have been impaired. The government must only show that the defendant had “a general awareness” of the scope and objective of the plan, not necessarily that a defendant knew every detail.
Therefore, a Trump affiliate could potentially be criminally liable so long as he or she had knowledge of Russia’s plan to disseminate hacked emails; he or she need not also have had knowledge of the means and methods of Russian hacking. Nor would American co-conspirators need to have known that Russia’s hacking and dissemination of campaign-related emails impaired the FEC’s ability to carry out its regulatory mission. Similar to proving an agreement to enter a conspiracy under Section 371,knowledge may be established using circumstantial evidence. Intent to defraud the United States may also be inferred from circumstantial evidence related to “the relationship of the parties, their overt acts, and the totality of their conduct. . . .
Accordingly, evidence that tends to show President Trump or his associates attempted to conceal interactions with Russian nationals, helped guide Russia’s social media influence efforts, or attempted to direct the distribution of stolen emails could be used to prove intent to join a conspiracy. Of the reported facts, Roger Stone’s purported technical and sustained discussions of stolen campaign documents with Russian military officers posing as Guccifer 2.0 tends to show the type of active participation that courts have found sufficient to infer intent to participate in a conspiracy to defraud.
I would argue that Trump Jr.'s actions were at least as incriminating as Stone's. But Mueller can't find circumstantial evidence of a conspiracy? After yesterday's hearing, I'm not sure any rational American takes William Barr seriously. A lot of Americans take Mueller seriously, but the weak language in his redacted report raises questions about whether that trust is misplaced.
How did Mueller reach his "no collusion" finding? That's hard to say, given that huge chunks of his "Prosecutions and Declination Decisions" section (pp. 174-199) have been redacted. The closest we get to an explanation from Mueller is found on page 181 of his report:
The investigation did not establish that the contacts described in Volume I, Section IV, supra, amounted to an agreement to commit any substantive violation of federal criminal law-including foreign-influence and campaign-finance laws, both of which are discussed further below. The Office therefore did not charge any individual associated with the Trump Campaign with conspiracy to commit a federal offense arising from Russia contacts, either under a specific statute or under Section 371 's offenses clause
The Office also did not charge any campaign official or associate with a conspiracy under Section 371 's defraud clause. That clause criminalizes participating in an agreement to obstruct a lawful function of the U.S. government or its agencies through deceitful or dishonest means. . . . The investigation did not establish any agreement among Campaign officials or between such officials and Russia-linked individuals-to interfere with or obstruct a lawful function of a government agency during the campaign or transition period. . . .
The investigation did not identify evidence that any Campaign official or associate knowingly and intentionally participated in the conspiracy to defraud that the Office charged, namely, the active-measures conspiracy. . . . Accordingly, the Office did not charge any Campaign associate or other U.S. person with conspiracy to defraud the United States based on the Russia-related contacts. . . .
As Brookings shows, all of these elements can be shown via circumstantial evidence. But Mueller and his elite band of investigators could not manage to do that? Unbelievable. Perhaps someone forced them to use an impossibly high evidentiary standard, one that does not exist under the law?
Mueller is using a lot of "trust me" language here in his report. He feeds the public phrases such as "the investigation did not establish any agreement" or "the investigation did not identify evidence," while providing few specifics about how his office reached its conclusions on collusion. Release of evidentiary materials might be the key to understanding his actions.
After Barr's combative and deceptive performance yesterday before the Senate Judiciary Committee -- and his decision to skip a hearing today before the House Judiciary Committee -- a number of Democrats are calling for his resignation or impeachment. But Democrats should not give Mueller a free pass; he needs to be questioned thoroughly and aggressively, especially on the matter of collusion.
The Mueller Report, as we have it right now, hardly is a model of clarity and transparency on that issue. The public needs to know why.