As Charlie Pierce at Esquire stated about Mueller: “Oh, they’re smart fellers.”
I noted earlier that Mueller did not file today’s indictments with an eye toward prosecuting these particular Russians. These people named in the complaint are safely back in the motherland, and Putin is not about to hand-over star witnesses, allowing Mueller to topple a president who – by all appearances – Putin spent so much time and effort installing.
Obviously, Mueller had multiple other reasons for filing the indictment today, and we went over some earlier. A big motivating factor had to be the simple wake-up call to the country. But, as will happen quite frequently over the next day or two, something which escaped my notice originally (and most others, as I have seen) now stares me in the face with its elegant simplicity and after-the-fact-obviousness.
I noted that Mueller set out the principle charge, the “information warfare to defraud the United States” as the framework from which to hang the future indictments of co-conspirators, even co-conspirators who knew nothing of the 13 named today. Criminal conspiracy law is almost always called a “powerful tool” for prosecutors because so many cross-statements can be used against any other defendant attempting to further the object of the conspiracy (“Beat Clinton”). What I hadn’t done, is note that, by basing the criminal charges in election law and charging the foreigners first, Mueller frames collusion itself as a criminal act.
Stated simply, the Fox pundits are correct in noting that there is no United States Code provision criminalizing “collusion with a foreign power.” There is no “crime” called “collusion.”
However, there are campaign laws, election laws, regarding the use of, and disclosure of, “things of value.” Use properly, those laws can criminalize “collusion.”
Election law prohibits foreigners from providing “anything of value” to a campaign in furtherance of the campaign’s objective. To name one example from outside of today’s news, the hacking of the Podesta emails, which were then transmitted to Wikileaks for posting, clearly had value, and its connection to the election is not disputed, even Trump urged on the Russians to locate and publish Clinton emails to aid his campaign. He famously declared: “I will tell you this, Russia: If you’re listening, I hope you’re able to find the 30,000 emails that are missing.” Thus, Trump has already noted that the type of “help” Russia seemed to be giving was “of value.” Trump told a rally of supporters he “loved” Wikileaks and read from the hacked communication to support his attack on his opponent for “a degree of corruption at the highest levels of our government like nothing we have ever seen as a country before.” Trump spoke about his love of the emails in the debates with Secretary Clinton. when he was asked during the debates to acknowledge the Russian program of interference and given the opportunity to openly oppose the actions, and Trump didn’t do it! He also mentioned Wikileaks 124 times in the last month of the campaign.
Even from the outside, with no further evidence from Mueller’s investigation, it’s obvious that Trump fed the Russians’ conviction that Trump welcomed the help and assistance, and that’s only considering the stuff in plain sight.
The next steps will involve Mueller’s investigation into the Trump campaign communications or private assurances to others involved in the Russian conspiracy, including the Russians named today, people associated with Wikileaks, and others unnamed, including Flynn, Bannon, ultimately Kushner and possibly Trump’s sons. Mueller has evaluated and will charge (or not) certain instances where the campaign encouraged the Russians or helped coordinate the release of much of the material that Mueller gathered and released today,
As noted by a white paper published by Just Security last summer:
“coordination at [that] level could trigger the application of other provisions of the rules directed at the political campaign’s acceptance or receipt of the Russian assistance, or even its direct solicitation of it. But the “substantial assistance” prong would cover the more indirect of the Trump campaign activities—including public statements—that were conducted at more of a distance, and yet still intended to signal the Russians that help was needed and of “value.”
By framing the conspiracy as a violation of election law, and starting with the charges against Russian nationals first, instead of people within the campaign, such as Kushner, Donald Jr. or the president, Mueller has structured a conspiracy that criminalizes collusion, even though we have heard it said on many occasions that “collusion with a foreign power is not illegal” from various analysis.
Collusion is illegal when framed as a donation of “value” from a foreign power, accepted and furthered by the campaign. Note that Mueller’s charging documents indicated they have evidence that the “Organization” was spending over a million dollars a month at one point.
Of course, Mueller has much more to draw upon. There exists, still, evidence of Trump’s money-laundering, possible tax evasion, and direct bribes. We will watch closely what happens with Cambridge Analytica, and what Cambridge did with its “deep data” as applied to specific “purple areas” in the country. Kushner, Flynn, Bannon and Mercer were all directly involved in Cambridge Analytica.
Mueller elegantly framed the matter as an attack on the concept of free and fair elections. It is certainly a call to all Americans to understand and be ware that we are being manipulated, encouraged to be at each others’ throats. I suspect that, soon, we will learn that Trump knowingly joined the attack, by accepting and colluding in the conspiracy.
That Mueller team, some clever fellows.