Mueller Missed the Crime: Trump’s Campaign Coordinated With Russia
The special counsel will testify before Congress next week. He needs to answer for historic legal and factual errors.
Ever since the release of the Mueller Report, countless commentators have implored everyone to just #ReadtheReport. The problem is not who is reading it—the problem is the report itself, and its many errors.
Robert Mueller made a significant legal error and, based on the facts he found, he should have identified Trump campaign felonies. Mueller’s errors meant that, first, he failed to conclude that the Trump campaign criminally coordinated with Russia; second, he failed to indict campaign chairman Paul Manafort and his deputy Rick Gates for felony campaign coordination (see in a concise timeline below); third, the 10 acts of felony obstruction in Volume II fell flat among the general public because it lacked compelling context of these underlying crimes between the campaign and Russia. On top of these errors, the former special counsel said he deliberately wrote the report to be unclear because it would be unfair to make clear criminal accusations against a president.
The bottom line is that the Mueller Report is a failure not because of Congress or because of public apathy, but because it failed to get the law, the facts, or even the basics of writing right. When Mueller testifies before Congress on July 17, he should be pressed on all of this.
The DOJ’s initial appointment explicitly tasked Mueller with investigating campaign “coordination,” and it is not too much to ask that he get the law of “coordination” right. The report stated that “‘coordination’ does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express.”
However, Congress purposely sought to prevent such narrow interpretations: in 2002, it passed a statute directing that campaign finance regulations “shall not require agreement or formal collaboration to establish coordination.” The Federal Election Commission established the regulations for the implementation of the statute: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” with no need to show any kind of agreement.
Outside spending for coordinated communications is an in-kind contribution, and foreign contributions are completely prohibited. And Congress made the criminal penalties unmistakably clear: “Any person who knowingly and willfully commits a violation of any provision of this Act” commits a crime. The Supreme Court upheld these limits in McConnell v. FEC with crucial observations about the functional role of suggestions, rather than agreements: “[E]xpenditures made after a wink or nod often will be as useful to the candidate as cash.” This timeline is full of suggestions far more explicit than winks and nods.
As the Supreme Court acknowledged, this is not about bribery and quid pro quo; it’s about outsourcing a consistent campaign messaging and expenses to known allies. It seems Mueller did not hire any legal experts with experience in campaign finance regulation. Given that this investigation was about campaign crimes, this appears to a revealing oversight with serious consequences.
In addition to ignoring these rules, Mueller also made a major organizational error: Volume I separates the events of Russian hacking from the actions of the Trump campaign. The entire point of a “conspiracy and coordination” investigation was the relationship between the two. The ongoing pattern of signal or invitation with response, of cause-and-effect, gets utterly lost in the hundreds of pages of details, the siloing of each character, and especially in the omissions and the errors.
Here is a short, concise timeline of 10 events to show that Mueller found criminal coordination in the back-and-forth between the Trump campaign and the Russian government. Puzzlingly, Mueller omitted some of these events from Volume I, but revealed them in other Mueller team indictments or from Volume II, another strange error.
First, keep in mind some crucial background context of coordination. Trump made frequent positive public comments about Vladimir Putin, especially from 2013 through the campaign. Also keep in mind the active concealed negotiations for Trump Tower Moscow between Trump associates and Russians connected to the Kremlin from June 2015 through June 2016.
Trump hired Paul Manafort as campaign chairman in March. Manafort had well-known direct contacts to Putin’s orbit, namely his old oligarch patron Oleg Deripaska. As the report states, “Manafort stayed in touch with these [Russian] contacts during the campaign period through [alleged Russian spy] Konstantin Kilimnik.” In late April, Trump foreign policy adviser George “Papadopoulos was told by London-based professor Joseph Mifsud… that the Russian government had obtained ‘dirt’ on candidate Clinton in the form of thousands of emails.”
Papadopoulos indicated that the campaign had “received indications from the Russian government that it could assist the Campaign through the anonymous release of information that would be damaging to candidate Clinton.” In response to Papadopolous’ suggestions of a meeting between Trump and Putin in late May, Manafort writes an email that Trump should not go himself, to avoid sending a public “signal,” but Manafort later makes his own secret contacts through Kilimnik. This context shows Manafort’s awareness of the Papadopolous contacts, circumstantially about the emails, and the negative consequences of public signals.
The report identifies this same overlapping period as the peak and pivotal hacking period by Russian military intelligence (GRU), as well as a period of a pro-Trump social media campaign by Russian agents using aliases. But the report fails to show the overlap with these Trump campaign events.
On June 3, Rob Goldstone, the music producer for a Russian oligarch’s son, emailed Trump Jr. about the chief prosecutor of Russia offering to “provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government's support for Mr. Trump.” He responded: “[I]f it's what you say I love it especially later in the summer.”
On June 7 at 5:16 pm, Trump Jr. scheduled the meeting for June 9. That very same evening, Trump announced: “I am going to give a major speech on probably Monday of next week and... discussing all of the things that have taken place with the Clintons.”
The report says the investigation “did not find evidence that the original idea for the speech was connected to the anticipated June 9 meeting.” Many prosecutors would have drawn the opposite inference from Trump Jr.’s subsequent lies about the meeting and Trump’s directions to him to lie as not only felony obstruction but also as evidence of consciousness of guilt and more likely Trump’s contemporaneous knowledge of the meeting. But even if we give Trump (and Mueller) the benefit of the doubt, the next events still show coordination.
A day after Trump’s announcement and his son’s scheduling of a meeting with Kremlin-connected lawyer Natalia Veselnitskaya, the Russians immediately launched DCLeaks.com to spread emails that its agents had illegally hacked. This information is in the Mueller indictment of 12 GRU agents, but oddly, the report omits this precise timing. Whether or not Trump knew of the Trump Tower meeting, he could have perceived that his announcement of a speech on Clinton was immediately followed by DCLeaks, and it became one of the major sources of leaks all summer. And the principal campaign officers who met with Russian agents about Clinton information the next day surely could have perceived this cause-and-effect, too.
The next day, Trump Jr., Manafort, and Jared Kushner met Veselnitskaya in Trump Tower. Manafort’s notes from the meeting indicate that the main subject was lifting sanctions on Russia. Unhelpfully, the report buries Manafort’s meeting notes in a footnote with none of this crucial context or commentary. Even without an explicit quid pro quo, the premise of the meeting was “dirt” on Clinton (a quo) and lifting sanctions (quid). A meeting between top Trump campaign officials and Russian government representatives was at least implicitly a suggestion, more than the kind of “wink” and “nod” that the Supreme Court condemned in 2003. The unfolding events in the next day and next months would show acting in concert and coordination.
Five days after the Trump Tower meeting, the DNC announced Russian hackers had breached the computer network, and its investigators blame GRU officers. The next day, “GRU officers using the persona Guccifer 2.0” created a blog to release the stolen documents, doing so between June 15 and October 18. Yet again, Mueller failed to put this event in the context of the Trump Tower meeting and Trump’s announcement of a forthcoming speech on the Clintons. Someone who knew of the meeting would have seen clear cause-and-effect.
WikiLeaks “released over 20,000 emails and other documents stolen from the DNC network”, three days before the Democratic convention in Philadelphia. After the release, a senior campaign official “was directed to contact Stone about any additional releases and what other damaging information” WikiLeaks had. “Stone thereafter told the Trump Campaign about potential future releases of damaging material by [WikiLeaks].” This information was in the indictment of Stone. Presumably this detail is redacted from the report, but given its potential significance to the investigation, Mueller should be asked to specify who was directed and who did the directing.
Trump’s press conference on July 27, during the Democratic convention, takes on clearer significance: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” He even clarified that his message was serious at the time in response to MSNBC’s Katy Tur: “They probably have them. I’d like to have them released… I’d love to see ‘em.” (Mueller omitted this clarifying response.) Given the already established pattern of speech-as-signal or green-light to coordinated Russian response, it is reasonable—even obvious—to conclude that Trump knew precisely what this signal meant, and the signal actually had an immediate response that Mueller documented.
After Trump’s press conference invitation, Russian agents “attempted after hours to spearphish for the first time email accounts at a domain hosted by a third party provider and used by Clinton’s personal office. They also targeted seventy-six email addresses at the domain for the Clinton Campaign.”
At the same time as his “Russia, if you’re listening” speech, Trump ordered his campaign to find Clinton’s mythical 30,000 deleted emails: “Michael Flynn… recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.” Given how many campaign officials had known Russian contacts, and given the recent WikiLeaks leaks, the context makes the meaning implicit: Go coordinate. (It does not matter whether direct contacts happened, because indirect contacts through intermediaries are also prohibited under campaign finance law. For example, using a common vendor can be the basis for finding illegal coordination.)
Stone’s apparent contacts with Julian Assange could count as knowing coordination with a Russian agent or a known co-conspirator/intermediary with Russian agents. If Trump had directed Stone’s contact or knew of such directions around July 22, and knew of WikiLeaks’ link to hacking, the context of Trump’s order to find the emails has potential criminal significance.
“Trump told Gates that more releases of damaging information would be coming… In the summer of 2016, the Campaign was planning a communications strategy based on the possible release of Clinton emails by WikiLeaks.” No matter how Trump knew, this “communication strategy” in the context of earlier events shows an intent to coordinate with Russian hacking. The report buried this detail in Volume II on obstruction, and strangely did not place it properly as a key fact of Trump-Russian coordination. Trump’s public promotion of WikiLeaks’ releases in this context becomes key evidence of coordination.
Manafort shares with Kilimnik detailed internal polling data, focusing on battleground states Wisconsin, Pennsylvania, Michigan and Minnesota. Manafort continued sharing such information “for some period of time” thereafter. Other Mueller prosecutorial statements indicate that this polling data was substantial, around 70 pages. Gates suspected that Kilimnik was a “spy,” and shared this suspicion with Manafort. (The report also notes the FBI assessed him to be “tied to Russian intelligence,” and that “Kilimnik was fired from his [nonprofit position] because his links to Russian intelligence were too strong.”) “Kilimnik requested the meeting to deliver in person a peace plan for Ukraine that Manafort acknowledged to the Special Counsel's Office was a ‘backdoor’ way for Russia to control part of eastern Ukraine.”
Manafort and Gates had further contacts with Kilimnik after August 2, including more contacts about the “peace plan.” This plan was Russia’s plan to lift sanctions, the quid from the Trump Tower meeting. This was more than just a wink and a nod. It was the consistent message, continuing after the election. Unfortunately, Mueller never made this context clear.
In fact, this episode leads to one of the most dumbfounding passages in the report: “The Office could not reliably determine Manafort’s purpose in sharing internal polling data with Kilimnik during the campaign period.” Mueller entertains Manafort’s assertion that this sharing was “good for business.” Because the polling showed off Manafort’s skills with color graphics? No, because it was valuable coordination between the campaign and Manafort’s oligarch sponsors.
Even if one takes the most charitable interpretation of Manafort’s denial of coordination (to “resolve [Deripaska’s] outstanding lawsuits”), Manafort is essentially confessing to conspiracy/quid pro quo. This is the Mueller Report in a microcosm: he has evidence that Manafort committed two different kinds of crimes, yet he bends over backward to a known liar to conclude that instead of both crimes, it was neither.
After this meeting, the report documents Russia agents targeting Pennsylvania miners with a rally planned for October. But the report failed to mention that Russians also targeted Michigan and Wisconsin in their social media campaign, as was widely reported in 2017. Even if there is no evidence that these ads had a significant effect on the voting, and even if Russian agents had other sources to suggest these states were key battlegrounds, the Russian effort is consistent with a broader pattern of coordination.
Mueller should have concluded that both Manafort and Gates engaged in felony campaign coordination, and he should have indicted Manafort for it. Manafort is a lawyer with decades of experience working for presidential campaigns: it would be less difficult to establish “knowing and willful” violations. And Manafort’s extraordinary record of lying to prosecutors—and coordinating his lies with Trump’s lawyers—would help prove the case as an inference of consciousness of guilt. In the very least, Mueller should have explicitly stated that there was substantial evidence of illegal coordination, even if it was insufficient for a criminal prosecution.
Members of Congress should lay out this timeline clearly on July 17, and ask tough questions of Mueller: Why did you ignore the law of campaign coordination, which was clearly established by Congress and the FEC, and thoroughly upheld in broad terms by the Supreme Court? Did your failure to identify the correct legal standard limit your investigation of Manafort, Gates, Stone, and Trump? If you knew of these rules, why did you fail to identify this coordination as illegal once you found it?
Mueller’s failures and omissions have another round of dangerous cause-and-effect. He is opening the loophole that Congress was purposely trying to avoid, and he is telling all the 2020 campaigns that these rules will not be enforced. Now Trump and his aides seem to think they have legal permission to openly do all of it again. Rudy Giuliani flagrantly tested these coordination rules in his political contacts with Ukraine officials. Given Mueller’s failure and Trump’s exploitation of that failure, it is now Congress’s duty to the public, the candidates under investigation, and future candidates to identify the law clearly, and to explain that some of this behavior was a civil violation, and in fact a criminal violation.