On the Mueller Report, Vol. 1
How they got away with it
For two years we knew of the possibility that the Donald Trump campaign cheated in the 2016 election. Investigative journalists reported that members of the Trump campaign, individually and severally, learned that the Russian government was trying to intervene in the election in their favor, and that they welcomed and encouraged the attack; they may even have tried to help it. When the attack became known, members of the campaign called it into doubt, and may have hidden their tracks and interfered with the US government’s investigation into it. At the furthest reach, Trump may have done policy favors for the Kremlin in return.
These hints were explosive. Most emerged in an intensive phase of journalism in the six months following the November 2016 election. But investigative journalists lack police powers. In May 2017, the attorney general’s office felt enough pressure to appoint a special counsel to determine the truth of the allegations against the Trump campaign. The special counsel would take over the FBI’s existing investigation into Russian interference in the election, but it would also investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” As is customary for special counsel investigations, the special counsel would refer for prosecution anyone who interfered with its gathering of evidence by means such as “perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”
The special counsel appointed was Robert Mueller III, an experienced former prosecutor and previous head of the FBI. His role resembled that of a traditional federal prosecutor but was not confined to a particular geographic district. He impaneled a grand jury in the District of Columbia to issue subpoenas, hear testimony, and make criminal indictments. He directed a team of FBI agents and was given access to classified counterintelligence information. He worked with his own team of former prosecutors and jurists to synthesize the evidence and assess possible crimes.
Mueller’s “Report on the Investigation into Russian Interference in the 2016 Presidential Election” was written for the attorney general’s office, but its discoveries and conclusions would also likely guide Congress and be made available to the public. He submitted the report in two volumes in March 2019. It was published on the special counsel’s website, partly censored (or “redacted”), on April 18.
Volume I of the report anatomizes the Russian attack and traces the connections between individuals in the Trump campaign and emissaries of the Russian government. Volume II documents President Trump’s individual efforts to hinder, subvert, or end the investigations into the Russian attack and into the possible involvement of his campaign, himself, and his family.
The division between the two volumes is not for ease of understanding. Practically, it reflects the shift from the two retrospective tasks of the special counsel—investigating responsibility for the 2016 Russian election attack and any Trump campaign links to it—to a third, real-time task: prosecuting anyone who might obstruct the investigation as it progressed. As the main person criminally obstructing it turned out to be the President, this required its own volume.
Almost metaphysically, however, the two volumes divide across a change of state created by Trump’s inauguration as President. With that institutional event, both Trump’s person and his actions changed status, and so did the nature of the evidence collected. The “candidate,” then “President-elect,” became President of the United States, a being with alternative powers, privileges, and opportunities for criminality. His contacts with Russia became less legally culpable, as they could pass for statecraft, and Mueller stopped documenting relevant evidence of rewards to the Kremlin and communications with Putin. Most neglectfully, Mueller did not subpoena or interview Trump, the knower at the center of the evidentiary threads, because he now sat in the office of the President. On the other side of the inaugural chasm, however, Trump’s comments about the FBI investigation, and hints to its agents as well as its targets, became far more culpable, as he would now appear as the “boss” of all federal police action and thus a puissant obstacle to its independent duties—and, with his pardon power, the undoer of all threat of punishment to those likely to be convicted of federal crimes.
The most discussed finding of the Mueller report forms the legal crux of Volume II: that President Trump may have committed criminal acts of obstruction of justice in ten separate instances. But it also finds that it cannot say so legally, nor prosecute these crimes on its own. The special counsel’s office considered itself bound by a Justice Department guideline that Presidents cannot be indicted for crimes and articulates a prosecutorial-ethical norm that prosecutors must not publicly accuse of crime anyone who cannot immediately be indicted. Volume II strongly implies that Congress, instead, is the venue in which our government should pursue the President’s crimes of obstruction, using the special counsel’s hundreds of pages of evidence and documentation as a road map. It implies that federal prosecutors, too, may wish to charge these crimes of obstruction once Trump, the person, is no longer President.
The evidence and recommendations of Volume II have dominated subsequent discussion of the Mueller report. The implications are clear enough to rivet all opponents of Trump’s presidency. Robert Mueller, a Republican lawman, with the most conservative temperament and following the most conservative legal reasoning, concludes that President Trump cannot be proven innocent of crimes of obstruction of justice. Trump misused the powers of the presidency to protect his own family, his confederates, and himself. He tampered with witnesses and attempted to subvert the course of justice through executive power—crimes of obstruction that exceed those for which Nixon was threatened with impeachment and resigned and Clinton was impeached and remained. If you care at all about obstruction of justice and the powers of the law and police, these crimes are extreme, and certainly impeachable.
However, most of us don’t care much about hindrances of the powers of the law and police except when they’re on the trail of larger crimes against society. Al Capone did not singularly outrage society by avoiding taxes. The state is right to pursue collateral crimes when the real crimes, whether through skill, accident, or lack of legislative anticipation, are unpunishable or not yet on the books. If Trump and his campaign did not actually cheat in the election; if they were not disloyal; if they did not welcome, encourage, and benefit from a foreign attack on the United States; if they won fairly, operated independently, were not open to blackmail by the Kremlin, and did not seem to pay off the Kremlin with benefits to Russian foreign policy—then Trump’s obstruction of government investigations could seem like what Attorney General William Barr has implied it to be: a partly understandable personal peculiarity of a generally paranoid person.
Each time a newspaper says that the Mueller investigation “found no evidence” of conspiracy, it makes a grave error of reading comprehension.Tweet
That is why Volume I of the Mueller report matters more than Volume II. The remarkable result of Volume I is to confirm that two and a half years of investigative reporting were correct: the Kremlin’s contacts with the Trump campaign were real and substantive, and they fit in at key junctures with the Russian attack on the election. It looks as if the Russian attackers and the Trump campaign coordinated. They betrayed the country and its electorate, Republicans and Democrats. And the actual situation, as far as the Mueller investigation was able to show, was much clearer and easier to follow than the press had been able to prove.
In briefest summary: Mueller discovered that candidate Trump was the one who reached out initially, in 2015 and 2016, to particular, named officials in the Kremlin to ask for real estate favors and benefits. They then reached out in return in 2016, once Trump had become the Republican nominee, to offer assistance in winning the election. The head of Trump’s presidential campaign began sending back their internal polling and targeting information to Kremlin intermediaries, and in apparent response to Trump’s public call to Russia to “find” Hillary Clinton’s “secret” emails, Kremlin-backed hackers stole emails from Clinton’s campaign. The stolen emails appeared on WikiLeaks timed to harm Clinton’s campaign and aid Trump’s—timing about which candidate Trump may have had knowledge. Following the election, both the Trump side and the Kremlin sought to build out channels of secret communication, through which Trump staff promised material benefits once Trump was in office. These are documented by the Mueller report as facts.
But the charge the special counsel led us to expect for the American participants after its indictments of Russian agents for their interference in the election—“conspiracy to defraud the United States”—was not established to the point of being chargeable. The sense-defying result is that the Mueller report denies legally what it seems to imply factually and historically about the sequence of events it clarifies and documents, whether we call it coordination, conspiracy, or “collusion.”
It takes time to read even the first volume carefully. The first pages introduce legal considerations and executive summaries of findings but stand at a distance from what we usually think of as a summary. The first two pages map out the evidentiary standard and terminology Mueller introduces as the key to his way of stating conclusions. These definitions are followed by the immensely important and partly improvised standard of “coordination” on which the special counsel lawyers settled—both to answer the charge of the attorney general and, one fears, to apply it to more general and capacious US Code statutes, including conspiracy, bribery, and campaign finance violations, in a way that significantly narrowed the path to indictment. (Why, precisely, the special counsel lawyers chose their standard, whether this legal basis was correct, and whether it influenced their charging decisions calls for interpretation. I wish the daily news were filled with analyses by jurists, but it hasn’t happened yet.) An interesting side effect of reading the report is to feel that anyone who claims to have understood its arguments, purposes, and consequences within twenty-four or forty-eight hours of encountering it is likely untrustworthy.
The report’s tripartite standard of evidentiary certainty proposes that, in its judgments, the report will say that the special counsel “established” (strong evidence, strong confidence), “did not establish” (some evidence), or “did not find evidence” (no evidence) of crimes, and that “a statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” When the Mueller report concludes, on the largest question, that it “did not establish” conspiracy, it communicates something quite different from a commonsense denial. It seems the phrase can indicate medium evidence, still yielding an absence of certainty. Each time a newspaper says that the Mueller investigation “found no evidence” of conspiracy, it makes a grave error of reading comprehension and states the opposite of the Mueller report’s indication.
The contradictory outcome of Volume I (evidence for, conclusion against) has been missed in news reports—partly because reporters are not entitled to state their own readings of law and must report what other people say; partly because the new attorney general made aggressive misstatements of what Mueller wrote in advance of the report’s release; and partly because media “commentary” is always instantaneous, and the commentariat rushed in where news divisions feared to tread. Most of all, perhaps, it is because the language of the report itself is complex, legalistic, and, to be honest, not altogether clear or compelling. (Volume I, especially, frustrates narrative momentum and understanding. Months after its release, key members of Congress responsible for acting on it have not read it from start to finish.) The links between events are deliberately not drawn for you. It often takes time to see why the special counsel’s office put in what they did, why certain events matter, why the investigators concentrated effort where they did, and how they chose to make key puzzle pieces available for the record or for Congress. But there also may be something that defies common sense and the historical need for consequences built into the structure and judgment of the report.
One does not know whether to be more impressed by what the Mueller report shows factually or by its counterintuitive legal recommendations and surrender on the subject of consequences. If the whole thing had been an FBI sting operation, in which the “Russian agents” were fictitious, participation in the manner uncovered in the report would have led to prison. Instead, the Russian agents were real, and no one will be charged.
To appreciate the discoveries added by Volume I, it helps to recall what the press had already reported before the special counsel investigation even began. Within weeks of the election, it was made public by the federal government and the US intelligence services that the election had been attacked by Russia. Their major formal assessment of the attack was released in January 2017, bearing the authority of separate assessments by all three agencies: the FBI, the CIA, and the NSA.
Between the election and the inauguration, the press established an impressive number of apparent contacts between members of Trump’s campaign and the Kremlin. During the transition period, Trump’s national security adviser, Michael Flynn, was caught by US intelligence contacting Russia, promising to undo any punishments or sanctions for the attack. Trump’s son-in-law and major adviser, Jared Kushner, was found to be in talks with Kremlin-linked oligarchs and was caught by US intelligence asking the Russian ambassador if the Trump campaign could use their country’s secret communication equipment to receive Russian briefings. Trump’s close adviser and the earliest advocate of his presidential ambitions, Roger Stone, was found to have been exchanging messages during the campaign with hackers working for Russian intelligence. Stone was also found to have been in communication with WikiLeaks, through which the Kremlin-stolen emails from Hillary Clinton’s campaign were disseminated on strategic dates in the election cycle. Then, of course, there were candidate Trump’s public encouragements to Russia: “Russia, if you’re listening,” et cetera.
At the same time, the head of Trump’s campaign, Paul Manafort, a veteran of pro-Russian campaigns in Ukraine, was found to have received enormous off-the-books payments and loans from the Russian puppet regime. It later emerged that Manafort still owed painfully large loans to Kremlin loyalists. He had motive to sell campaign access as a substitute repayment, and captured email messages suggested that he tried to do so. A range of separate people whom the Trump campaign listed as “foreign policy advisers” also proved to have been contacted by Russian intelligence officers. According to journalists, these “advisers” welcomed the contact and were caught proposing various ways to open lines of communication between the campaign and the Kremlin. This persisted after the election. Another surrogate, Erik Prince, the brother of the campaign donor whom Trump had just tapped to be secretary of education (Betsy DeVos), went to the Seychelles to meet secretly with Russian representatives. But it was hard to make sense, or sequence, of all these contacts.
The sequence that the Mueller investigation discovered—and that the report reveals—begins with outreach to the Kremlin by Trump.
Since the 1980s, Donald Trump had made efforts toward a Trump property in Moscow. It was a longtime, fundamental ambition for him. He had most recently pursued Trump Tower Moscow in 2014 with a father-son team of Russian real estate developers, Aras and Emin Agalarov, with whom he’d recently brought his Miss Universe pageant to the city. But that effort had ended.
While gaining ground among the crowded field of candidates for the Republican nomination in 2015, Trump got news that a new Trump Tower opportunity might be in the making. Felix Sater, an organized crime figure who had previously helped Trump explore a potential Trump Tower Moscow and worked on other Trump properties, had found a new Russian partner company, called I.C. Expert. Trump signed a formal “letter of intent” with them in November 2015. His immediate negotiator, responsible for the Trump Tower Moscow effort throughout the election campaign, was his personal lawyer and fixer, Michael Cohen, at that time titled “executive vice president of the Trump Organization and special counsel to Donald J. Trump.”
One does not know whether to be more impressed by what the Mueller report shows factually or by its counterintuitive legal recommendations and surrender on the subject of consequences.Tweet
Trump’s representatives, “Sater and Cohen,” according to the Mueller report, “believed the project required approval (whether express or implicit) from the Russian national government, including from the Presidential Administration of Russia,” meaning from the Kremlin and from Vladimir Putin. Sater, a Russian speaker, was first to attempt outreach to Putin. The initial response from the Russians came personally to Ivanka Trump, Trump’s daughter, presumably to confirm that Sater’s outreach was authentic and came on Trump’s order. Ivanka confirmed it by passing the message to Cohen. This put Cohen in touch with a minor oligarch and former Kremlin assistant who claimed he could arrange contact with Putin, but proposed it be done with Trump himself coming to Moscow in an “informal” capacity, for a secret meeting. Sater warned Cohen that it would be done under cover of state-owned businesses: “Invitations & Visas will be issued this week by VTB Bank to discuss financing for Trump Tower Moscow. Politically neither Putin’s office nor Ministry of Foreign Affairs cannot [sic] issue invite, so they are inviting commercially/ business.”
This was not appealing to the Trump side. They wanted a commitment, and Cohen insisted on a formal invitation from the Kremlin. He told the low-level contact that if he could not deliver one, they would find one through other channels. In mid-January 2016, Cohen himself wrote to Dmitry Peskov, Putin’s longtime press secretary and a member of the inner circle of the Kremlin.
The contact itself was somewhat farcical—a cold email to a general press office account, asking to be put in touch. But it worked, according to Mueller’s evidence. Peskov’s personal assistant replied to Cohen and took the Trump Organization’s requests over the phone. Cohen said they wanted Kremlin help with land and financing, and he identified their Russian partners. The next day, Sater received a contact back from the Kremlin. Preparations were begun to bring Cohen to Moscow, this time under the auspices of the St. Petersburg International Economic Forum, but initially with the promise that Cohen was coming on the invitation of Peskov himself. What Cohen required, however, was some written commitment from Peskov or another highly placed Kremlin official—something they could trade on. Dates were finally agreed on for a Cohen visit in mid-June 2016. Cohen pulled out that month, when the invitation he received still included no written commitment.
The interesting thing about Trump Tower Moscow is that it furnished a means for Trump to profit personally from his electoral campaign, even with the expectation that he would lose—and Trump was going to lose. On this, all electoral projections were unanimous. The Mueller report estimates the value of the deal at hundreds of millions of dollars in future rewards to the Trump Organization. If one were to look at the negotiations from the point of view of a foreign nation attempting to infiltrate the Trump campaign, it seems like a brilliant financial inducement to Trump and his family. Yet it seems it was likely not a Kremlin-initiated contact at all. It seems to be Trump who led the charge, trading on his new fame as a semi-statesman while he still had some power, before his campaign lost. With his usual insouciance, he barreled forward with international deals as if he were not also trying to be President of a country at odds with the Kremlin in Syria, in Ukraine, in Europe, and worldwide. At this stage, there was no suggestion of what might be asked of him in return, or how the Trump Organization might thank the Kremlin for helping the Trump real estate empire win its long-sought prize. Sater internally floated the idea of giving the penthouse to Putin as a gift.
One can’t help but wonder if this is the original route by which the Kremlin determined whether the Trump campaign could be penetrated. It also provides a more robust motive for Trump to want to play along with Russian espionage in the summer of 2016, once increasing numbers of Russian points of contact had started to move in on his campaign. Russian offers of help in the election, after all, would be of no use if they didn’t work and he lost. If ties with the Kremlin yielded forward movement on Trump Tower Moscow, however, he would win in a different way.
While Cohen was still waiting for a commitment in writing from his Kremlin contacts—some imprimatur or high-ranking name to help facilitate the Trump Tower deal—the Kremlin switched tracks and made a successful outreach of their own.
In June 2016, Aras and Emin Agalarov, the father-son developers from the previous attempt at Trump Tower Moscow, were contacted by a different high Kremlin official: the prosecutor general Yuri Chaika, the Russian equivalent of the attorney general in the United States. Through their English-language publicist, the Agalarovs tried to get in touch with Trump directly, circumventing his fixer, Cohen. The message they relayed was that the Kremlin wanted to help Trump win by communicating secret intelligence that would be damaging to Hillary Clinton’s campaign. It arrived at a crucial moment, as it had become clear that Trump was going to clinch the Republican nomination.
The connection was surprisingly simple. The contact went from the Kremlin, to a Russian business partner and his son, to Donald Trump’s son and lieutenant, Don Jr., asking in turn how best to get the information to Trump. Don Jr. volunteered himself as the best means and said he was eager for the information. He followed up with phone calls to the Russian son to confirm the authenticity of the offer.
On June 9, 2016, Don Jr. held a meeting on the campaign’s behalf in his office in Trump Tower, New York, one floor below his father’s. The representatives of the Trump campaign included himself, campaign head Paul Manafort, and Jared Kushner—the innermost circle of the campaign, minus the candidate. (Trump seems to have been present at Trump Tower that day, or so the Mueller lawyers established in their written questions to the President.) The campaign met the Russian representative, a lawyer known for representing the Kremlin in US-based courtroom cases, and her entourage of several others, including a former Soviet counterintelligence officer, now a Russian lobbyist.
The Russian lawyer, Natalia Veselnitskaya, handed over the promised secrets: alleged proof that American businessmen who had laundered money and evaded taxes in Russia then donated the profits to the Clinton campaign or the Democratic National Committee. The Russians’ request, in return, was the removal of Obama-era sanctions targeting the finances and US travel rights of Russian officials involved in corruption and human rights abuses, the so-called Magnitsky Act (named for a murdered whistle-blower). The Trump side considered this information inadequate. Don Jr. noted that because his father was a private citizen, there was nothing he could do at this time. However, witnesses attested, Don Jr. also said they could revisit the issue “if and when they were in government.”
It’s hard to know whether the Trump Tower meeting was gravely important or just one more particularly stupid step among many. There are three ways to interpret the meeting, once one learns the rest of the sequence. One is as a communication: the Kremlin promised help, which the Trump campaign welcomed and did not report to authorities. Two is as a somewhat arbitrary test of Trump’s willingness to offer support in return: the repeal of the Magnitsky Act and the reopening of US-Russian adoptions, while small potatoes or absurd to Americans, really do matter to the Kremlin. Third, though, is as a means of compromising the Trump campaign—a different way of gaining commitment.
From the Christopher Steele dossier of contemporaneous Russian/Kremlin rumors about the Trump campaign, we in the ignorant American public were gifted the Russian word kompromat. This word, meaning compromising material obtained for future use and influence, came into prominence because of a question of whether the Kremlin had acquired kompromat on Trump while he was in Moscow for the Miss Universe pageant by filming prostitutes cavorting in his hotel room.1
The Trump Tower meeting would likewise be kompromat, giving Russia evidence of the campaign’s enthusiasm for illegal foreign intelligence. It makes sense to send an emissary to campaign headquarters, promising to deliver secret intelligence but not actually bringing much on that day; it lets you feel out the person you wish to compromise. At this stage, for all the Kremlin knew, the campaign might be filled with loyal US citizens. They might have turned over what the Kremlin sent to the FBI, causing an international incident. The important lesson for the Russians was that they didn’t.
But by then Trump had already heard that the Kremlin was on his side. Russian intelligence had been nibbling at the edges of Trump’s campaign throughout the spring, most famously through a junior foreign policy adviser named George Papadopoulos, whose communications of Russian promises were well documented and led to the FBI probe. On March 31, 2016, Trump was informed openly by Papadopoulos, in a meeting of foreign policy advisers, that outreach had been made to him because “Putin wanted to meet with candidate Trump.” In turn, according to witnesses, “Trump was interested in and receptive to the idea of a meeting with Putin.” This offer had come through Russian intelligence agents in London and comports with the early spring proposals the Kremlin respondents had been making to Cohen about bringing the Trump side to Moscow. On May 21, in the early days of Paul Manafort’s increasing centrality to the campaign, Manafort sent an internal email, later obtained by Mueller, saying they must communicate to the Kremlin that they would not be doing things this way: “Let[’]s discuss. We need someone to communicate that [Trump] is not doing these trips. It should be someone low level in the Campaign so as not to send any signal.”
That is where things stood in June 2016. As the campaign went into the full presidential contest, Russia went full bore for Trump. According to the Mueller report, “From June 2016 until the end of the presidential campaign, almost all of the U.S. rallies organized by the IRA”—the Internet Research Agency, the Kremlin’s social media subcontractor—“focused on the U.S. election, often promoting the Trump Campaign and opposing the Clinton Campaign. Pro-Trump rallies included three in New York; a series of pro-Trump rallies in Florida in August 2016; and a series of pro-Trump rallies in October 2016 in Pennsylvania.”
Mueller catalogued dozens of these rallies—real, physically occurring events engineered from abroad but populated with US citizens: sometimes with no attendees, sometimes hundreds. Since the early primaries in 2015, the IRA had been growing and tending a panoply of “accounts in the names of fictitious U.S. organizations and grassroots groups.” They created pages for “anti-immigration groups, Tea Party activists, Black Lives Matter protesters, and other U.S. social and political activists,” to create both allies and enemies for Trump voters and to spread disinformation about Clinton to minority voters in her base. By the time IRA-created groups were deactivated by Facebook in 2017, some boasted hundreds of thousands of followers. Among them were United Muslims of America (more than 300,000), Don’t Shoot Us (250,000), Being Patriotic (200,000), and Secured Borders (130,000).2
The commonsense term, though not the Constitutional standard, is “treason,” so we might as well say it.Tweet
The Mueller report says that according to Facebook, “in total the IRA-controlled accounts made over 80,000 posts before their deactivation,” reaching at least 29 million users in the US and as many as 126 million worldwide. In 2018, Twitter said it had identified 3,814 IRA-controlled accounts that made contact with as many as 1.4 million people. The IRA bought Facebook advertising, too, to push its stories to select users’ newsfeeds. The volume of disinformation intensified near the end of the campaign, thanks to a botnet run by the Kremlin: “50,258 automated accounts connected to the Russian government, which tweeted more than a million times in the ten weeks before the election.”
One thing that has never been elucidated, and which the Mueller report does not resolve, is how the IRA determined its social media targets. Did it receive any information from within the US about which groups, demographics, “psychographic profiles,” and particular issues might move undecided voters to Trump, or depress enthusiasm or turnout for Clinton? If there was anything that would suggest conspiracy from the Trump campaign, it would be some return of communication or sharing of strategy. The press has certainly wondered whether the IRA had help from within. But this seemed so unlikely and extreme as to sound like “conspiracy theory” in the pejorative sense.
On this question, the Mueller investigation made its second truly staggering contribution. The first was tracing the Trump Tower Moscow transactions—for one must remember that Trump had consistently lied about his business plans in Russia, and continued lying until the special counsel made it impossible to do so. Among his public denials: “I have ZERO investments in Russia” (July 2016). “No, I have nothing to do with Russia . . . How many times do I have to say that? . . . I have nothing to do with Russia, I have nothing to do with Russia” (July 2016). “I know nothing about Russia . . . I don’t deal there” (October 2016). “I have nothing to do with Russia, folks” (October 2016). “Have no business whatsoever with Russia, have nothing to do with Russia” (October 2016). “I HAVE NOTHING TO DO WITH RUSSIA – NO DEALS, NO LOANS, NO NOTHING!” (January 2017). Two years later, in January 2019, Trump admitted he’d been working on Trump Tower Moscow throughout the campaign.
Mueller’s second crucial discovery was this: on May 7, 2016, Paul Manafort met face-to-face with a man named Konstantin Kilimnik, a longtime Russian employee in Ukraine “assessed by the FBI to have ties to Russian intelligence” (as the Mueller report says repeatedly). From the time of that meeting and through the summer, Manafort passed internal, proprietary polling data from the Trump campaign to Kilimnik, likely destined for a man named Oleg Deripaska, one of the oligarchs closest to Putin. Manafort had worked for Deripaska in the 2000s and had accepted large sums of money from him that he then squandered in a dubious “investment fund,” in which Deripaska was the sole investor. As of 2016, Deripaska still held major financial claims against Manafort. In May, June, July, and August, Manafort’s deputy, Rick Gates, sent the data to Kilimnik via WhatsApp, presumably to pass along to Deripaska. Gates then deleted the communications on a daily basis.
Mueller’s investigators homed in on a second, secretive face-to-face meeting between Manafort and Kilimnik on August 2, 2016, at a cigar bar called the Grand Havana Room in New York City. Prior to this occasion, Kilimnik had flown from Kiev to Moscow to receive information and instructions he promised to Manafort. These instructions included a plan for Russia to gain “backdoor” control of eastern Ukraine, which Trump could be asked to push if he won the election. At the meeting, according to the Mueller report,
Manafort briefed Kilimnik on the state of the Trump Campaign and Manafort’s plan to win the election. That briefing encompassed the Campaign’s messaging and its internal polling data. According to Gates, it also included discussion of “battleground” states, which Manafort identified as Michigan, Wisconsin, Pennsylvania, and Minnesota.
Conversation then turned to the money Manafort owed Deripaska, and his prospects of recovering unpaid money he felt he was owed by the fallen Russian-backed regime in Ukraine.
Manafort was unexpectedly made useless as campaign chairman on August 14, when the New York Times reported the discovery in Ukraine of ledgers with secret payments to him from pro-Russian officials who had looted the country. It looked like Manafort was a Russian tool—unacceptable, not least because Russia kept cyberattacking the Democrats. He was moved out officially, but not functionally. According to the Mueller report, “Manafort continued to offer advice to various Campaign officials through the November election. Manafort told Gates that he still spoke with Kushner, [Steve] Bannon, and candidate Trump, and some of those post-resignation contacts are documented in emails.”
Indeed, Manafort never stopped working with his Russian contacts or with Trump. He traveled to Europe to resume face-to-face contacts with the same conduits, Kilimnik and aides to Deripaska. Even after Trump knew Manafort was under investigation by the FBI, he remained in contact with the White House, including, seemingly, to coordinate obstruction of the Mueller investigation and to keep in touch about promised pardons. As late as January 2018, “Manafort told Gates that he had talked to the President’s personal counsel and they were ‘going to take care of us.’ Manafort told Gates it was stupid to plead [guilty to crimes], saying that he had been in touch with the President’s personal counsel and repeating that they should ‘sit tight’ and ‘we’ll be taken care of.’” Gates later “flipped” on Manafort and agreed to cooperate with the government to receive reduced penalties for his crimes.
Manafort is currently in federal prison. Because the Mueller investigation could not get Manafort to cooperate as a witness, and because investigators were unable to trace the campaign’s internal data after it was sent abroad, “the Office could not assess what Kilimnik (or others he may have given it to) did with it.”
On July 22, 2016, three days before the Democratic National Convention, WikiLeaks published a dump of more than nineteen thousand emails stolen from the Democratic National Committee (DNC), sent between January 2015 and May 2016. The emails suggested a bias, in an ostensibly fair primary contest, among top Democratic officials toward Clinton and against Bernie Sanders, tainting Clinton’s nomination as the party’s candidate. The emails also kept alive the central post-Benghazi slander against Clinton, regarding her use of a personal server for emails while she was secretary of state. To critics, Clinton’s use of a private server made her untrustworthy (exposing state secrets to potential cyber-attack) and darkly deceitful (having something to hide). That the hacked DNC emails were not the ones housed on Clinton’s private server was, to those paranoid about Hillary’s emails, but a minor wrinkle.
The DNC had already warned everyone that it had been hacked by Russia. On June 14, a week after the Trump Tower meeting with Kremlin emissaries, the DNC had announced that its computer system had been broken into and its files stolen. It attributed the attack to Russia on the basis of internal analyses by its cybersecurity contractors, which subsequent investigations by the FBI, Department of Homeland Security, and Office of the Director of National Intelligence confirmed prior to the election. The special counsel has localized the attackers as Military Units 26165 and 74455 of the Russian military-intelligence agency, commonly known as the GRU. On June 15, GRU officers established the online persona Guccifer 2.0 and began dripping out stolen documents through June and up to the mid-July extravaganza. On a separate website, which they named DCLeaks, the GRU started posting email messages and files they’d been stealing for months from individual Democrats in Clinton’s orbit.
The day after Hillary Clinton officially received the Democratic nomination, Donald Trump, addressing the C-SPAN camera at a press conference, made his famous public statement: “Russia, if you’re listening, I hope you’re able to find the thirty thousand emails that are missing. I think you will probably be rewarded mightily by our press.” Whether Trump meant this facetiously or sincerely, the GRU chose to treat his request as an order. “Within approximately five hours of Trump’s statement,” the Mueller report reveals, “GRU officers targeted for the first time Clinton’s personal office. After candidate Trump’s remarks, Unit 26165 created and sent malicious links targeting 15 email accounts . . . . It is unclear how the GRU was able to identify these email accounts, which were not public.”
Trump’s figure of thirty-three thousand missing emails referred to a conspiracy theory. The FBI and Congress had investigated Clinton’s period of private email usage for two years and reviewed all available emails to and from her servers for classified information. In her lawyers’ initial disclosure of emails to investigators in 2014, they had sorted her messages into “business” and “personal” using headers and keywords, then provided thirty thousand to the government and relegated thirty thousand more to be deleted on schedule by her service provider. The FBI subsequently recovered and reconstructed many of those personal emails from Clinton’s correspondents, her devices, their devices, and even from decommissioned physical servers. The FBI also interviewed the lawyers, staffers, and service provider employees associated with the deletions, until they gained “reasonable confidence,” in FBI director James Comey’s words, that “there was no intentional misconduct in connection with that sorting effort.” The FBI cleared Clinton of wrongdoing only on July 6, 2016, and confirmed that her private servers, which had been configured to foil intruders, had not been successfully hacked. Comey, Republican head of the FBI, famously chastised her for having been “extremely careless” in an action that could have gone wrong but didn’t.
The amazing turnabout of the 2016 electoral contest was that Trump and the Kremlin kept this story alive by stealing new emails. The “hacking and dumping”—of emails by Clinton’s aide John Podesta, of messages from the Democratic Party apparatus, of notes from Clinton campaign workers—made “emails” the core of the narrative of Trump’s rallies. Every time Russian military intelligence hacked people close to Clinton and released their messages, it served the email story. The “lock her up” chant at every Trump rally was about a personal email server from three to five years ago, but new leaks supported the illusion that something suspicious was happening on Clinton’s side now. It was a brilliant maneuver. By committing new crimes, Russia made a shadow version of the conspiracy theories real.
So why did Mueller and his team not charge any crime? Why document and confirm so much evidence and run into a wall?Tweet
This became the central messaging of the Republican National Convention; “Lock her up!” and “Guilty!” ritual outcries at every Trump rally through summer and fall; “Crooked Hillary” jailed in effigy, Hillary hanged in effigy, “Hillary for Prison” T-shirts, Donald Trump snarling, “You’d be in jail” at the second debate with Clinton—a criminal accusation that lost its original referent, except that it concerned emails or hackers or servers. (Mueller’s investigators found that the Russian social media attack included arranging for a Florida Trump supporter to build a cage on a flatbed truck in which to “jail Hillary”—they reimbursed him for materials—and paying another to perform as “jailed Hillary” at rallies.) The hack-and-dump strategy also helped stage a media story of “character” and “untrustworthiness” that was used to counter each new revelation of Trump’s underhanded business dealings, Kremlin links, and more. The single most dangerous moment for Trump’s campaign—when the off-camera Access Hollywood tape was leaked on October 7 (“I moved on her like a bitch . . . . When you’re a star, they let you do it . . . . Grab ’em by the pussy. You can do anything”)—was blunted by WikiLeaks’ tactical release of a new tranche of stolen emails “less than one hour after a U.S. media outlet released [the] video.”
A stroke of good luck also befell the Trump campaign at the last minute through no work of Russia’s or its own. In early October, FBI agents investigating the disgraced congressman Anthony Weiner’s sexting with a 15-year-old girl found a laptop left over from Weiner’s marriage to Huma Abedin, Hillary Clinton’s aide, with backups of Abedin’s emails that had passed through the Clinton personal email server. The FBI had to cross-check these against the previous emails they’d vetted for classified information, to make sure they were only copies of things they’d already seen. On October 28, eight days before the election, James Comey took the unusual step of announcing to Congress that new emails had been discovered and the FBI was studying them. This was the bombshell headline on the next day’s news. Early voting was already underway, including in nine battleground states. Suddenly it looked as if there were undiscovered emails after all. It took until November 6, two days before the election, for the FBI email analysts to confirm that, no, they were the same emails they’d always had.
For months the GRU had been probing and in some cases penetrating the US voting infrastructure at ground level: “Victims included U.S. state and local entities, such as state boards of elections (SBOEs), secretaries of state, and county governments, as well as individuals who worked for those entities.” The Department of Homeland Security later confirmed that the GRU had attacked twenty-one states, and in some cases gained access to voter rolls and registration data. According to the Mueller report, “The GRU continued to target these victims through the elections in November 2016.” No one knows how or if this data was used by the Kremlin in its influence efforts toward Election Day, and Mueller avoided the question. The special counsel simply “identified evidence that the GRU targeted these individuals and entities,” but did not investigate further, leaving it to other agencies. When the Senate Select Committee on Intelligence released in July 2019 its mostly redacted volume of findings on “Russian Efforts Against Election Infrastructure,” it raised the number of states targeted to fifty.
Trump’s personal involvement in the dumping of stolen DNC emails has been suggested by the testimony of Michael Cohen and Rick Gates, separately and from independent experiences. Both spoke about overheard conversations and phone calls and direct remarks that implied Trump was in on the dissemination as it was underway, including perhaps how the releases were timed. The relevant passages are very heavily redacted in the report, because the prosecution of Roger Stone is ongoing. Those that can be seen—because they deal with testimony from Cohen and Gates and won’t be introduced at trial against Stone—include, most memorably, the “LaGuardia Airport” phone call. That passage reads like this:
According to Gates, by the late summer of 2016, the Trump Campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks. [REDACTED: Harm to Ongoing Matter]. [REDACTED: Harm to Ongoing Matter] while Trump and Gates were driving to LaGuardia Airport . [REDACTED: Harm to Ongoing Matter], shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.
We won’t know the facts of what the Mueller investigators turned up until the Stone trial occurs or those sections are published free of redactions. Odd phrasings in both Attorney General Barr’s and Mueller’s post-report press conferences have made some legal commentators think that beneath the black bars of redaction is evidence of conspiracy between the Trump campaign and Roger Stone or WikiLeaks, though not with Russia. (One most tantalizing redaction in Volume I is the section on whether foreign-national campaign finance violations have “Application to WikiLeaks”: three pages blacked out almost entirely where the relevant charges touch Trump.) More important for the larger question of coordination would be any revelations in the redacted materials of the extent to which Trump privately acknowledged the stolen WikiLeaks materials as aid from the Kremlin. Although Trump always publicly denied the origins of the attacks on the Democratic Party, interpretation of his real behavior as coordination or conspiracy depends on evidence of his understanding of the materials’ source. As the special counsel’s office pointedly asked in their few written questions to the President, included as an appendix to the Mueller report, “Why did you make that request of Russia, as opposed to any other country, entity, or individual?”
If the Russians helped Trump get elected—and if Trump knew he was compromised by their knowledge of his acquiescence, however actively or passively he received their aid—did Trump, or the campaign, do anything for them in return?
This, alas, is where the Mueller report’s switch from Volume I to Volume II—from the investigation of citizen campaigners to that of a President—truly fails to record the needed evidence of what went on, what was said or recorded (or hidden or dissembled), of Trump’s deliberations, communications, and actions.
There are things we know the Kremlin wanted in geopolitics that the United States opposed before Trump’s election. Russia wanted the removal of sanctions against Kremlin officials and Kremlin-linked oligarchs and companies. A free hand in Ukraine. A free hand in Syria, and nonresistance to their client Assad. After the 2016 election, a free hand in continuing to interfere in elections and attacking the popular sovereignty of governments around the world.
Trump’s policy toward Kremlin goals has been the reverse of that of the Republican Party, whose policy he has parroted in other arenas. He has opposed his own military, which he otherwise glorifies, and has undercut his own secretaries of state and ambassadors on Russia policy. The first scandal of his presidency was his cosseting of Michael Flynn, his national security adviser, who during the transition told the Kremlin to ignore Obama’s sanctions in punishment for the election attack because the Trump team, once in office, would be more generous (February 2017).3 Trump publicly opposed congressional sanctions for the 2016 election attacks and threatened to veto them. When he proved unable to stop legislators—and when a refusal to sign these particular bills into law seemed too inexplicable—he signed them only with presidential “signing statements” arguing against them (August 2017). His administration failed to put those sanctions into effect, repeatedly skipping or missing the deadlines the law demanded (January 2018). When his UN ambassador, Nikki Haley, threatened sanctions against Russia after chemical attacks in Syria, Trump retracted her threat (April 2018); she resigned before the end of the year. The press keeps reporting plans to undo Russia sanctions, even to give back the seized Russian compounds near New York and Washington DC used for spy organization. Occasionally these plans surface as actions: Trump’s Treasury Department negotiated a deal specifically to lift sanctions on the companies of Oleg Deripaska, though Democratic and Republican senators fought unsuccessfully to stop it (January 2019).
When Russian ships attacked Ukrainian naval vessels in shared waters off the territory Russia annexed in Crimea, Trump did nothing and kept silent (November 2018). Trump suggested his one punishment would be to not meet with Putin at the G20 in Buenos Aires, but he met with him anyway (December 2018). He keeps making suggestions that Crimea may rightly belong to Russia, despite the policy of the US that it belongs to Ukraine. Continuous Kremlin aggression in Ukraine up to the present moment, including hit men freely killing off civilian targets chosen by the FSB, Russia’s internal security agency, has been beneath Trump’s notice.
Trump committed the US military to a complete withdrawal from Syria and abandonment of the US-backed local forces counterbalancing Assad—against his secretary of defense, James Mattis (who resigned), against Republicans in Congress, and against his own foreign policy staff, who subsequently tried to blunt his orders (December 2018 and ongoing).
Whenever the US government has proven to him Russian responsibility for the 2016 election attack, Trump has gone out of his way to publicly deny the proof. Two weeks before Trump was inaugurated, the New York Times later reported, the heads of the CIA and the NSA and the director of national intelligence showed him classified materials, unavailable to anyone else in government, proving that Putin had personally ordered the attacks on the election: “texts and emails from Russian military officers” and human intelligence “from a top-secret source close to Mr. Putin, who had described to the C.I.A. how the Kremlin decided to execute its campaign.” Trump walked out of the briefing, faced the press, and denied Russian involvement. From that day to this, Trump has advanced his presidential denials of Russian responsibility to blunt the force of all other parts of the US government’s unanimity on the subject. Needless to say, attacks from Russia persisted in the elections in 2018, including attacks on Democratic and Republican congressional campaigns and offices. Warnings to Congress and the public that Russian interference was “real” and “ongoing” from all of the US intelligence agencies led to no public action by Trump.
In Helsinki, last year, when asked by Jonathan Lemire of the Associated Press to finally denounce the Russian attack on the 2016 election before “the eyes of the world” and address Putin unequivocally, Trump offered a new conspiracy theory about a missing DNC server (there is no such server): “Where is the server? I want to know, where is the server, and what is the server saying?” He cast his mind back to Hillary’s emails, and his preference for Russian justice: “What happened to Hillary Clinton’s emails? 33,000 emails gone, just gone. I think in Russia they wouldn’t be gone so easily.”
In June of 2019, Trump met with the Russian president in Japan. At a joint press conference, another American reporter asked him whether he would now tell Putin, before the eyes of the world, not to meddle in the 2020 election. A mischievous Trump joked to Putin, “Don’t meddle in the election, please,” but he was unwilling to look in Putin’s direction.
The largest crimes, when they happen within bureaucratic systems or distributed chains of command, do not require tight coordination. They may not require coordination in the strong sense at all. If bureaucratic subsystems know they are “on the same page,” and yet their individual methods are illegal or must be hidden or done with “plausible deniability,” they can be depended upon to get things done without leaving the fingerprints of the leaders ultimately responsible.
The planning on the Trump campaign side was not Ocean’s Eleven. It was joining in a foreign attack on an election, high state crimes, and betrayal of loyalty to the United States — in bits and pieces, opportunistically, among several different actors. The commonsense term, though not the constitutional standard, is treason, so we might as well say it. The Trump campaign moved on treason, took a risk on treason, in much the way Trump has moved on “deals,” legal and illegal, his whole life long.
On the Kremlin side, knowing that the Trump campaign would play along was gold, and fantastic luck. But that knowledge didn’t prompt their hacking, or their attack, and it didn’t even cost anything but a few plane tickets and some promises. Presumably in most of the countries they hack, the electoral candidates are not so open to bribery and subversion.
No one could have planned it in advance. And yet the Trump campaign, if they could not plan it, could well have helped to stop or blunt the attack — if, as any other campaign would have, they had reported each contact and indication of Russian espionage to the government, or to Republicans in Congress or the Republican National Committee. But not alerting anyone, separate from their participation in the attack, became causally enmeshed in the attack and causally responsible for it. Part of the reason we have categories in law for accessory, accomplice, material supporter, and conspirator is that once one is told about an ongoing crime, drawn into its secrecy and its peripheral needs, one has been drawn into the causal web of the plot. Alerting authorities could mitigate the crime or even stop it.
When Trump and his executives began receiving calls from people identifying themselves as from the Kremlin, promising secret intelligence and more, they, as the campaign for President of all people, were uniquely positioned to stop the attack by publicizing it. They had a unique pulpit, a unique credibility, which the Obama Administration could not muster. They could really have stopped the attack.
So why did Mueller and his team not charge any crime? Why document and confirm so much evidence and run into a wall?
Well — which particular element was the crime? This uncertainty, one of the seemingly most superficial elements of the Trump-Russia connection, has wound up being devastating to the possibility of any direct consequences for the Trump campaign’s wrongdoing. Mueller and his legal team seemed to have decided upon and named the crime by the way they ordered their earlier major indictments, in February and July 2018. The office of the special counsel issued charges of “Conspiracy to Commit an Offense Against the United States” against GRU units 26165 and 74455, impressively listing the unit officers by name. Against its subcontractors, the Internet Research Agency, and the two companies that financed it — “Concord Management and Consulting” and “Concord Catering,” owned by the oligarch and Putin deputy Yevgeny Prigozhin, who is ludicrously but appositely known as “Putin’s chef” — they charged “Conspiracy to Defraud the United States,” as well as wire and bank fraud.
The problem is that the federal prosecutor’s requirement for charging a crime of conspiracy is quite short-range and literal. You must have evidence beyond a reasonable doubt of at least two individual people agreeing to commit a particular criminal act, following the different statutes for each listed crime, and then taking steps to do it. Which two people — for which individual act — are criminal here? They become fully significant, and criminal, in parallel. What Trump knew and thought about what Cohen was negotiating; what Trump knew and thought of his son’s meeting; what Trump knew and thought of Manafort’s actions; what Trump knew of the Russia-stolen emails and discussed with Stone; what responsibility Trump had for Flynn’s promises to withdraw sanctions; what Trump, as President, has said to Putin in their unrecorded and unmonitored meetings together — this most key evidence is not obtainable, especially because Mueller would not do the one truly essential thing. He would not subpoena Trump for a wide-ranging interview, under oath, to ask the fundamental questions about all these matters, because Trump is now President.
In the mandate given to the special counsel to investigate and clarify, there was not only the question of colluding and conspiring, but also of “coordinating,” and the Mueller team tried to take this into account. But here the Mueller team’s new standard for “coordination” either preserved a narrow and lawyerly picture of “conspiracy” or further restricted it. They write:
Like collusion, “coordination” does not have a settled definition in federal criminal law. We understood coordination to require an agreement — tacit or express — between the Trump Campaign and the Russian government on election interference. That requires more than two parties taking actions that were informed by or responsive to the other’s actions or interests.
But two parties, two organizations, taking actions responsive to each other’s interests and actions — both publicly visible and secretly communicated or shared — was the essence of this crime. It’s what you would expect from a crime at this scale. It is what any two parties that are quasi-state actors on opposite sides of the globe, “official” and highly monitored, operating in conditions of secrecy and distributed action through a diverse chain of command, would do. And it seems to be what they did.
The status of this particular rumor is less shaky than it should be. Trump’s bodyguard, testifying to Congress, confirmed that their Russian hosts on the day in question did indeed propose sending prostitutes to the room at night . The bodyguard saw Trump to his room, stayed a few minutes outside the door, and then left . The Mueller report, more consequentially, captured communications from Cohen suggesting that, while he was also managing the cover-up of Trump’s affairs with Stormy Daniels and Karen McDougal during the campaign, he negotiated to stop “tapes” from Russia, which he and Trump seemed to believe contained compromising material. ↩
When the IRA wanted to gather people in person, page admins announced an event, then blasted followers with direct messages asking them to attend. “From those who responded with interest in attending,” says the report, “the IRA then sought a U.S. person to serve as the event’s coordinator. In most cases, the IRA account operator would tell the U.S. person that they personally could not attend the event due to some preexisting conflict or because they were somewhere else in the United States. The IRA then further promoted the event by contacting U.S. media about the event and directing them to speak with the coordinator. After the event, the IRA posted videos and photographs of the event to the IRA’s social media accounts.” ↩
Though a minor event relative to all that would follow, Flynn’s promise was ironically the only Russia benefit to endanger Trump — because it was done too early, before the inauguration. According to the Logan Act, transition-officials-in-waiting, and even a President-elect, cannot legally conduct secret diplomacy with a foreign power to subvert the policies of the current President . These promises to the Kremlin by Flynn, detected by the FBI, spun off into a series of obstructing maneuvers by Trump that helped precipitate the appointment of a special counsel. Because it bridges Trump’s transition from President-elect to President — and figures in both his campaign’s possible crimes of coordination and in his own recorded crimes of obstructing justice — the Flynn incident appears in both volumes of the report. ↩