This week, Special Prosecutor Robert Mueller revealed the opening blows in his investigation into potential collusion between members of Donald Trump’s presidential campaign and operatives working for or on behalf of Russia. On Monday, things kicked off with Trump’s former campaign manager Paul Manafort turning himself in to the Justice Department after being indicted on 12 counts stemming from his financial dealings, including with pro-Russian Ukrainian entities. While the indictments allege a wide range of criminal activity, they do not cite anything related to the Trump campaign and Russia. In fact, the indictment overwhelmingly deals with shady deals Manafort allegedly made throughout an extended period of years before he joined the Trump campaign. But that, of course, does not mean Manafort is not implicated in potential attempts by Trump officials to work with Russian sources to obtain damaging information on Hillary Clinton and the Democratic National Committee, or other unknown offers from Russia to help Trump. The investigation has not provided the public of evidence of that, but it may well exist.
Perhaps more significant than Manafort’s actual charges is the fact that Mueller revealed to the public that a Trump foreign policy adviser named George Papadopoulos had pled guilty to lying to the FBI in an interview about his contacts with a professor who claimed to have links to Russian sources closely connected to the Kremlin or Vladimir Putin. Papadopoulos’s plea agreement portrays him as a first-class imbecile on multiple fronts. First, someone clearly told him that he was going to be hooking up with Russians closely connected to Putin — including someone he believed was a relative of Putin. Turns out, that part was false. It is clear from the indictment and his guilty plea about lying that Papadopoulos thought he could get dirt on Clinton in the form of stolen emails in the possession of his contact’s Russian sources. Maybe that professor had good connections to Moscow, or maybe he didn’t. We don’t know. It is possible that Papadopoulos was also trying to make himself seem more connected and valuable to Trump’s senior people than he actually was and inflated his connections and his ability to deliver. Papadopoulos has a track record of dishonesty regarding his resume and past work. Papadopoulos hardly seems to be the criminal mastermind of some grand plot to get the Russians to hack the elections. But it is still significant.
Papadopolous’s guilty plea and the fact that he is cooperating in the investigation could mean serious trouble for actual senior members of the Trump campaign, including but not limited to Attorney General Jeff Sessions, Jared Kushner, Donald Trump Jr., Sam Clovis, Paul Manafort, and possibly Trump himself. The key question in all of this is what Trump and his senior officials believed Russia had to offer, what they tried to do to get it, what they did with it if they did get it, and on and on. But both Papadopoulos and Manafort could also provide testimony that alleges that Trump and others lied about a whole range of issues, including what they knew and when. For someone like Sessions who testified under oath about his knowledge of or involvement in dealings with Russia, this could be extremely bad news. Papadopolous and Manafort could testify that Sessions was lying to Congress or made intentionally misleading statements. So that could be a big deal.
Trump may have lied about a whole series of things, but Trump didn’t say any of it under oath, so Trump can fall back on his well-worn “fake news” defense with no legal consequence.
What is clear at this point is that Mueller is just getting started. Papadopolous’s plea agreement and the Manafort indictment should cause serious concern for Trump just based on what they know and the fact that they are under tremendous high stakes, legal pressure from an aggressive prosecutor who has threatened to make Manafort’s life a living hell. But neither Papandopolous nor Manafort have pled guilty to or been charged with conspiracy or espionage related to Russian election interference. All of this matters because the only relevant legal point on any of this was: Did Trump or his campaign break the law? The new term du jour “collusion” has no real, widely accepted legal definition. Details about such collusion could come out that make it very clear there was a plot here, but it might just be condemned in public opinion and not the courts. So that is what a lot of this boils down to: Was there criminal conduct or simply what many people seem to believe should be criminal conduct but isn’t under the law?
There will almost certainly be more indictments coming down the pike. And other cooperating witnesses. We know there are some sealed indictments filed in sequential order with the Manafort and Papadopolous filings. It will be interesting to see what they say and who the defendants are. Remember, we have Gen. Mike Flynn, Trump’s short-lived national security adviser, floating around. He definitely knows where some bodies are buried. Is he cooperating? Wearing a wire? Or is he going to be charged with a crime? Same questions apply to his son, Mike Flynn Jr.
Lying to the FBI and being a corrupt businessman are not what this investigation is really about. It is a probe into possible links between the Trump camp and Russia in an effort to influence the election. The government may never prove there was criminal activity by Trump’s people related to this election, but rather that they engaged in activity many Americans find offensive, immoral, unpatriotic. But to prove it is criminal is a totally different beast.
Many investigations into a major issue often produce indictments that have little to no relation to the bigger probe. They were crimes uncovered during the course of the probe or, in the case of lying, as a result of the investigation. Catching people in lies can lead to bigger things, and that is why Papadopolous ultimately matters. What passes as fact in the court of public opinion doesn’t necessarily hold up in the court of law. And none of us can simply will something to be true. That’s what the courts are supposed to do, including in cases involving cartoonish villains like Donald Trump. Now maybe this will lead to indictments showing a criminal conspiracy between Trump’s campaign and Russia. Or maybe it will simply uncover non-criminal activities that are offensive to a lot of Americans. Time and evidence will tell.
This week on Intercepted, we spoke to two people closely monitoring these developments. Ken White is a criminal defense attorney in Los Angeles and a former assistant U.S. attorney. He is the main force behind the blog, Popehat. And Charlie Savage is an investigative reporter at The New York Times. He is the author of two great books, “Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy” about the Bush era and “Power Wars” about the Obama administration’s wars.
What follows is the complete transcript of our conversation:
Jeremy Scahill: Ken White, Charlie Savage, welcome to Intercepted.
Ken White: Thank you. Happy to be here.
Charlie Savage: Thank you.
JS: What is the strategy that Robert Mueller is engaging in here with this indictment and also the plea agreement of Papadopoulos?
CS: Of course Mueller is not talking to me, although if he’s out there listening, I’m happy to talk to you. But I would speculate that what he’s trying to do very hard is persuade Paul Manafort to flip and start cooperating and provide information about the Trump campaign’s interactions with the Russian government in exchange for leniency on these otherwise unrelated charges he was indicted with yesterday regarding his failure to register as a foreign agent, as lobbyist for Ukraine, and money laundering, and various other financial crimes related to that matter.
It looks like he’s putting a lot of pressure on Manafort, saying “Now is the time to flip, like Papadopoulos did, and you may get yourself, if not out of hot water into more tepid water in exchange for cooperation.”
JS: What would make what people keep referring to as collusion illegal or a criminal conspiracy and not just trying to get opposition research in a way that many Americans certainly would find distasteful, maybe even immoral. But like what would they need to find in order to prove that there was actual criminal activity regarding working with Russian agents or people connected to Russia regarding the election?
KW: It depends, I mean, they could use sort of generic statutes to the extent that anyone involved in communications with Russia made false statements to the United States government, made false statements to them in the course of the investigation. And you see those elements in both the Manafort indictment and Papadopoulos plea. And, to the extent they engaged in transactions that were concealing the nature of their relationship with the government, that could be it. But there’s no sort of general, broad definition of collusion. It would have to be — it’s not enough they just work with the Russians. They would have to demonstrate that they were affirmatively engaging with them and assisting them in making donations of something of value to a United States campaign.
JS: Charlie, if a political campaign, such as the Trump campaign learns that there are e-mails or communications that have been hacked or illicitly obtained by a foreign government and they’re aware that that is how this information was obtained, is it a crime for them to take possession of it and use it in their campaign to try to damage or score points against their political opponent?
CS: I mean all this is a very unprecedented territory, right? And so, I think a lot of legal commentators who have been trying to analyze where Mueller may be going or what certain facts would then lead to, if those facts turn out to be true, have been trying to reason by analogy without a lot of prior precedents to look to for guidance about what would fly in a courtroom, what wouldn’t.
And so, for example the theory that this could be a conspiracy to violate the law against foreign contributions to a domestic political campaign is definitely one of the ones that has been around. You see Bob Bauer, the former White House counsel to Obama who’s an election law specialist has been I think the principal proponent of that. What you’re getting at is another variant that you’ve heard kicked around out there which is — “Well, stealing of these emails is unlawful.” If the theft appears to have taken place before Trump campaign people were told that the Russians had e-mails related to Hillary Clinton but also, they seem to have learned that before the e-mails were disseminated via WikiLeaks. And so, if they coordinated that in some way or took some sort of step to conceal it, could that implicate Americans involved in the Trump campaign in the crimes of the Russians? There’s not a super easy way to see that.
One theory though that people have explored is there certain privacy violation crimes that are completed only at the point in which the public is shown private information. Perhaps then the crime was ongoing up to the point in which the, you know, the private emails were disseminated. But the whole thing is really sort of sui generis and, which means to say, we don’t have a lot of guidance from historical events to say “Clearly it would fit into this box neatly which has been tested over time.”
JS: Now, Ken, you currently are a defense attorney. You, at one other point in your career were an assistant United States attorney. I’m wondering your read on what was made public about the Papadopoulos guilty plea and the plea agreement in the fact that he’s cooperating. Was there anything in the documents that were made public this week on his case that indicate to you any other criminal activity outside of lying to the FBI?
KW: Well there was lying to the FBI and there was also deleting his Facebook account in what might have been a very clumsy effort to conceal its contents from the FBI. But no, there wasn’t anything in there that I think yet crossed the line into any other crimes. But bear in mind that what we’re seeing both in the complaint and in the statement of facts supporting the plea was what the special counsel warned to put in there and they didn’t necessarily put gratuitous things in there.
So, it’s possible they have more. But this move by the Special Counsel’s Office to go out and roust people and then wind up charging them not with a substantive crime but with lying during the rousting is classic for a federal grand jury investigation. And actually, I misspoke. It was the FBI that did the initial rousting before the special counsel was even appointed. But this sort of demonstrates, as does the Manafort indictment, just how broad and flexible federal criminal law is and how often prosecutors can give in something that they don’t like, stretch and find something that makes it a crime.
JS: As a defense attorney if you were sort of tasked with working on the defense in this case from the White House. Let’s say that it is proven that they had these meetings with Russians and that they knew that they were potentially going to be taking custody of stolen emails, whether they were actually stolen or not, we don’t know. But let’s say that that’s what they believe that they were — is there a criminal defense to justify taking that information and using it in your political campaign?
KW: The first element of the defense would be to get your clients to shut up.
JS: [Laughs] Good luck with that one.
KW: I mean because this is again a classic example of how people get themselves in trouble by lying to the FBI rather than by the underlying crime. Until you know what theory that the special counsel is going to go after, it’s a little difficult to say. I think that you would be watching for any indication that nothing of value was given by foreign nationals, which is one of the elements of the prohibition against foreign donations to a domestic campaign. I think you would be looking very carefully and policing all statements that have been made to any federal government entity in the course of the campaign to make sure that there were no false statements made that could be the hook for the criminal prosecution.
JS: Is there’s something inherently criminal about taking possession of illicitly obtained emails, like we believe happened with the Russia hack and Hillary Clinton or the DNC?
KW: Under federal law, probably not. Inherently just taking possession of them. There’s not like a “receiving stolen property” that’s generic to federal law like there is for many states.
However, you know, you could spin at some point a theory that they joined a conspiracy, a hacking conspiracy, under the Computer Fraud and Abuse Act which is extremely broad and flexible. It really depends on what they say in the communication to the foreign nationals and what the communications demonstrate their intent is. But it’s certainly not a slam dunk, just because they knew it was stolen, that they took it. It really depends on what you can show their intent was and what they did with it, and especially if they did anything like encourage them to go back to the well and get more.
JS: Well, you did have Donald Trump openly calling on the Russians to find Hillary Clinton’s 30,000 deleted emails.
And that’s why if it is Russia, nobody even knows, it’s probably China, or it could be somebody sitting in his bed.
JS: That was political theater but I mean the timing of that, Charlie, was quite fascinating that you have Trump — it seems like he was aware that there was some degree of back channel communications or at least people very close to him, including his family members. And then he’s openly saying: Hey, Russia if you can find the 30,000 deleted emails, that would be great.
CS: Well, so what we don’t know yet is what he was aware of, versus what people around him were aware of, and may or may not have conveyed to him. Seems like that should be knowable information, but that’s also probably the sort of thing exactly that Bob Mueller’s hoping Paul Manafort for will flip and then provide, because he would be the one that in the best position to fill in those blanks. Part of what you’re talking about is the timeline here, that sort of we’re having more and more data points filled in of this very interesting period from sort of the spring of 2016 through the late summer of 2016, where now we know there is the Papadopoulos flirtation and offer, or at least a suggestion, that they had all these emails long before we had previously known people on the American side knew that.
Earlier that month we had the now-famous Trump Tower meeting on, I think, June 9, a couple days after that is when Julian Assange first reveals that he has just come into possession of Hillary-related emails that he finds fantastic. So, these things line up in a suspicious way, but Mueller is going to do more than just say, “Here’s some dots, why don’t we connect them with our intuitions.”
JS: And of course, Ken, Donald Trump is not under oath when he’s tweeting or when he’s speaking to the media, but Attorney General Jeff Sessions has testified under oath and has repeatedly said:
Well, let me just say this without hesitation that I conducted no improper discussions with Russians at any time regarding a campaign or any other item facing this country.
JS: At least in one case it shows that Sessions was in a meeting on March 31, 2016 at which Papadopoulos reportedly explained, “He had connections that could help arrange a meeting between then-candidate Trump and President Putin.”
Marcy Wheeler writing that it “shows that Papadopoulos kept a number of campaign officials in the loop on his efforts to set up a meeting between Trump and Putin, though they secretly determine that the meeting should be one low-level person in the campaign so as not to send any signal.” This issue of Sessions potentially being contradicted by Papadopoulos about what he knew and when he knew it.
KW: Well, sure, again, you’re off to the races. You’ve got false statements to the federal government and you’ve got potentially perjury. I think it would be at that point a difficult case depending on Sessions’s exact language in his testimony since it’s a little cloudy what collusion means. I mean collusion is sort of like the term we’re using to talk about this whole affair. It’s not really, in itself, a thing. There’s no federal law of “collusion” or something like that.
So, the trick would be to determine how precise Sessions’s language was and how precisely he said something that you can definitely contradict and, you know, prove that he knowingly told a lie.
JS: How would you describe to someone who knows nothing about this and is coming into it what has actually been proven about the relationship between Trump campaign officials and individuals connected to the Kremlin or working on behalf of the Kremlin?
CS: I mean it seems fairly clear and beyond reasonable dispute that there was an organized Russian effort to interfere with the 2016 election to help Trump, and hurt Clinton, through a variety of means and — ranging from these Facebook ads and so forth that were bought in rubles, to pretending to be, you know, Black Lives Matter, organizing rallies, and so forth, or just sort of taking existing tensions that might have the effect of suppressing leftwing turnout and ratcheting them up to the apparent theft of the emails and dissemination of them through WikiLeaks.
Your question is aimed more at sussing out what we know and don’t know about Trump campaign knowledge of, and coordination with, or lack there of. At this point the biggest indication of that in the public domain had been the Don Jr. emails that led to the Trump Tower meeting in June of 2016 where he was told that the meeting was about the Russian government’s efforts to help his father and he didn’t express surprise that there were such efforts, it’s always been sort of puzzling.
Now we learn that other elements of the campaign had already been in dialogue with people they believed at least were aligned to the Russian government, both in terms of setting up a meeting which doesn’t sound like collusion, that sounds like diplomacy or laying the grounds for diplomacy, but also that they knew that there was dirt and emails related to Clinton as early as April.
That still doesn’t get you to active participant in something, rather than passive beneficiary to something. But we don’t know what Mueller’s going to find, we don’t know what he’s already found. He keeps getting closer to that, but certainly this is a story that’s unfolding not a story that’s over.
JS: What is the evidence that is publicly available that you’ve seen as someone paying close attention to this that would stand up in a court of law and what does it show so far?
KW: I have to agree with Charlie. I think there’s evidence that people in the Trump campaign believed they were communicating with the Russians and believed that they were offering information about Hillary Clinton including emails. I don’t think that the evidence of coordination or of higher up in the Trump campaign is there yet, but it’s certainly enough for them to pursue. In terms of, you know, what I think is coming, I would only say that I am begrudgingly impressed with the competence of the special counsel’s office here. It’s quite a feat to keep that Papadopoulos arrest and plea confidential for the amount of time he did without it leaking.
And, he’s definitely going very methodically. I mean, everything that’s being done is the way that competent federal prosecutors roll up a case, just accelerated. He’s going at a much faster than usual pace. He’s being very aggressive in the things he’s asking for. So, for instance there was news he had successfully convinced a federal judge to force Manafort’s prior lawyer to testify before the grand jury on the basis of a finding that he could probably prove that Manafort consulted the lawyer for the purposes of fraud. That’s huge! It’s a very aggressive stance for a prosecutor to take and it’s unusual for a judge to agree to it. And it just shows how willing they are to use all the tools available to them and that the tools available to a federal prosecutor are formidable and all the avenues they are willing to go. My expectation is that we’re still going to see things dominated by sort of the throw off from the investigation rather than the investigation itself. In other words, we’re going to continue to see people getting tagged, not for something underlying they did that was against the law, but for something they did in reaction to the investigation.
JS: Right, I mean the cliche statement, you know, that the coverup is worse than the crime may be literally true here in terms of the consequences that people pay in their attempts to cover up activity that may not have even been illegal, but would have been wildly unpopular in the United States, because it showed that they were essentially working with foreign powers to try to influence a domestic presidential election.
KW: It’s a cliche because it’s perfectly true. It’s the primary way I would say that high-profile people get taken down by the feds.
CS: Remember that Mueller’s mandate is not just find whether there was a crime and you know prosecute it if there were, which might raise eyebrows about these, sort of, tangential crimes that then spin off that would not have happened but for the investigation. He’s also conducting an intelligence investigation to find out what happened, whether, or not, there was a crime. It’s sort of a counterespionage activity as much as it is a criminal prosecution and so he’s using these tools of perjury and lying to federal investigators and so forth in unrelated financial crimes that come to light because he’s scrutinizing these people so carefully, not just as an end to itself, but to try to get at the essence of what happened in 2016 and to what extent was that election tilted by a foreign power, which is something worth knowing, whether or not you can say it fits neatly within a standard federal criminal statute.
JS: General Michael Flynn, who, you know, we haven’t been hearing much about him lately. There’s questions swirling around whether he is cooperating already, whether there’s some kind of a sealed indictment against him, or if that’s yet to come. What are you hearing about General Flynn these days, Charlie?
CS: He’s gone awfully quiet and he was in a lot of hot water over a variety of things related to false statements on forms and his strange interactions with the Turkish government in his case, or that the parallel to a Manafort’s interactions with the Ukrainian government. People wonder what’s up with him and whether he’s cooperating or not and I’m sure the Trump White House would like to know as well.
KW: He’s got to be at a minimum extremely worried after yesterday though because the aggressiveness of the case theory in the Manafort indictment regarding registration as a foreign agent is something that if you moved it over to Flynn, I think would very easily support an indictment on a similar theory. I mean, it’s pretty clear that Flynn didn’t register as an agent for Turkey when he should have. He did it belatedly and often that would prevent prosecutors from charging based on it, but a prosecutor this aggressive, as aggressive as reflected in the Manafort indictment? I mean, I could see very easily them going after him, again, on a series of crimes arising out of the theory that he deliberately didn’t register when he should have.
JS: I mean it sounds like both of you are saying that one possible scenario here is that a number of people end up getting caught for crimes that they committed that are not necessarily about dealings with the Russian government, but maybe about their lobbying practices, their own financial dealings and that it doesn’t actually lead to a criminal charge regarding their involvement with Russia, but rather a series of criminal charges having to with a cover up, or other issues that were uncovered by the special prosecutor’s investigation. Is that accurate?
KW: Absolutely. And I think the important thing to note is that it’s not an exception, it’s the rule. So, you look, you know even as relatively recently as the Ken Starr investigation of then-President Clinton. The main action wound up being something that was completely collateral to what he was originally tasked to investigate. And, again, this is very typical of federal criminal investigations. Often the thing that they wind up getting people on, particularly in politics, particularly high profile people, are spinoffs from the investigation, not the original subject of the investigation.
CS: A difference between Ken Starr setting out to discover whether there was financial misdeeds in the Whitewater investigation and ending up with a perjury case related to a sexual affair is that there was no real connection between the two of substance at the end. It’s not like he was pressuring Bill Clinton to come clean about Whitewater. Here, I think you have to understand Mueller’s strategy as clearly being about putting pressure on Manafort, and maybe Flynn, and others, to tell him what they know about the Russia case, in exchange for leniency on these other apparent crimes he’s uncovered. There is an end goal to the effort.
JS: Charlie, Ken — thanks so much for joining us.
CS: My pleasure.
KW: Thank you for the opportunity.