Remember Mueller’s Russia Indictments? They Matter Now More Than Ever.

by Kim Wehle
January 30, 2019
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(Illustration by Hannah Yoest. Photo credit: Alex Wong/GettyImages

As the 24/7 circus spins around Roger Stone—the latest criminal defendant among a slew of Donald Trump advisers indicted by a grand jury in the Russian investigation—it’s easy to lose sight of what Special Counsel Robert Mueller’s probe is all about. Indeed, Stone has already managed to attract MAGA-hatted crowds uttering the tired and deeply misguided refrain, “Free Stone, Jail Hillary.”

On Tuesday, acting Attorney General Matthew Whitaker set Twitter abuzz with a bizarre, rare, and unconvincingly off-the-cuff remark—made at an unrelated news conference—that the Mueller probe is “close to being completed.”   

The comment was bizarre both because the Stone raid and arrest made clear that the investigation is continuing apace—and because neither the tight-lipped Mueller nor the decorous deputy attorney general Rod Rosenstein would likely make an announcement of such magnitude in that way.

Amid the witch’s brew of calumny coming from Team Trump, the path back to clarity is through Mueller’s blockbuster conspiracy indictments against Russian trolls and the GRU (Russia’s foreign intelligence equivalent of our CIA), which have been quietly pending for months now.

In February and July of 2018, Mueller indicted numerous Russian entities and individuals—together with “others known and unknown to the grand jury”—on various charges of conspiring to commit crimes against the United States of America.

In theory, those indictments could be buttressed at any time, evidence willing, by adding American co-conspirators. Yes, American co-conspirators—possibly including those who have already been pinged for serious wrongdoing (pejoratively deemed by some as “process” crimes), such as lying to Congress or the grand jury.

Of course, if President Trump were involved in these conspiracies, it’s not a far jump to “high crimes and misdemeanors” warranting impeachment.

Hopefully by now, most people understand that “collusion” is not a crime—it’s an umbrella term for a host of potential crimes associated with Russia’s attack on our electoral process. But conspiracy is a crime. Conspiracy is an offense that occurs if, first, two or more persons agree to commit a crime and, second, they take a step toward that goal. So, if two guys hatch a plan to rob a convenience store over beers, and then buy a ski mask and water pistol at the mall, they can be charged with a criminal conspiracy. Even if they never actually cross the convenience store’s threshold.

Under federal law, if two or more people agree to commit a crime against the United States, and take an action in that direction, they can be sent to jail. An agreement to get around the FEC’s reporting requirements, for example, and a subsequent attempt to make a campaign contribution look like something else, would violate 18 U.S.C. § 371. A defendant can be guilty of conspiring to defraud the United States by engaging in other dishonest conduct in connection with a federal agency or program, too.  

As the Department of Justice explains on its website, the goal of federal conspiracy laws is “to protect the integrity of the United States.”

In the two conspiracy indictments pending in the Russia probe, the grand jury charged the defendants with attempting to sow discord within the American electorate—and to help Trump win the presidency—by interfering with the lawful functions of the U.S. government. The conspirators allegedly took a number of steps to achieve these goals, such as creating social media accounts of fictitious U.S. persons; holding fake rallies to shape public opinion; planting derogatory public information about Trump opponents Hillary Clinton, Ted Cruz, and Marco Rubio; hacking the email accounts of Clinton’s staff; and staging the release of stolen data in order to heighten its impact on the 2016 presidential election.

The Trump campaign was involved. That much is clear from the grand jury’s charging papers.

In paragraph 44, the July indictment states that:  “On or about August 15, 2016, the Conspirators, posing as Guccifer 2.0, wrote to a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump, ‘thank u for writing back . . . do u find anyt[h]ing interesting in the docs I posted?’”

“On or about August 17, 2016, the Conspirators added, please tell me if I can help u anyhow . . . it would be a great pleasure to me.”

“On or about September 9, 2016, the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC [Democratic Congressional Campaign Committee] document posted online and asked the person, ‘what do you think of the info on the turnout model for the democrats entire presidential campaign.’ The person responded, ‘[p]retty standard.’”

And in paragraph 43: “On or about August 15, 2016, the Conspirators, posing as Guccifer 2.0, received a request for stolen documents from a candidate for the U.S. Congress. The Conspirators responded using the Guccifer 2.0 persona and sent the candidate stolen documents related to the candidate’s opponent.”

That’s correct. A candidate for U.S. Congress requested and received stolen documents regarding a political opponent from Guccifer 2.0—the same entity behind the illegal hacking of the Democratic National Committee computer network and subsequent email dump. Guccifer 2.0 is operated by Russia’s GRU.

For an investigation that is supposedly wrapping up soon, the word “conspiracy” looms large. The possibilities roll off the tongue: conspiracy to violate the Computer Fraud and Abuse Act; conspiracy to violate the federal campaign laws by taking something of value (such as opposition research) from a foreign entity; conspiracy to defraud the United States by obstructing, defeating, or impairing the lawful functions of the U.S. government for purposes of interfering with the political process; and, lest we not forget, conspiracy to obstruct justice through coordinated lies to federal officials, tampering with witnesses, or suborning perjury.

It’s impossible to speculate with any certainty as to what the evidence within the special counsel’s coffers could show. The public sees only the proverbial chip of the tip of the iceberg. But it is possible to read the lines of the various public indictments—not even between the lines, mind you—to surmise that “others known and unknown to the grand jury” were involved in alleged conspiracies to defraud and commit offenses against the United States.

To the extent those are process crimes, they could not be more important, as they go to the heart of the process for ensuring a free and fair democracy in America for ourselves and our children.

Kim Wehle

Kim Wehle is a contributor to The Bulwark and a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Her forthcoming book, How to Read the Constitution and Why, will be published in spring 2019; follow her on Twitter @kim_wehle.