Despite intense debate about the scope of Special Counsel Robert Mueller’s investigation, there is broad agreement that “collusion” with the Russian government is at the heart of it. Yet that term, which is used on a daily basis on cable news, has no legal meaning. Mueller’s recent moves—from subpoenaing Paul Manafort’s financial records to working with a Ukrainian hacker—make more sense if you understand how working with the Russians can be a crime.
As a legal matter, what’s significant is whether an American “conspired” with a representative of the Russian government. Conspiracy is just a legal term that means an agreement to commit a crime. An American can also commit a crime by “aiding and abetting” a criminal act committed by someone else. That means that the American knew of the criminal activity and helped make it succeed. It is also a federal crime to actively conceal a felony, even after the crime has already been committed.
The common thread underlying all of these things is that the American has to know that a crime has been committed and somehow assist in committing or concealing it. Merely working with the Russians, receiving aid from the Russians or meeting with the Russians is not enough.
So what underlying crime could Mueller be investigating? One obvious possibility is hacking the Democratic National Committee and subsequently releasing emails from it via WikiLeaks. Hacking U.S. servers is a crime that is frequently investigated and prosecuted—I handled some of those cases myself. Anyone who agreed to take part in an effort to hack the DNC’s servers committed a crime.
Special Counsel Robert Mueller (center) departs the Capitol after a closed-door meeting in Washington, D.C., with members of the Senate Judiciary Committee about Russian meddling in the election and possible connection to the Trump campaign, on June 21. J. Scott Applewhite/AP
An American could join a Russian conspiracy to hack U.S. servers without ever speaking to the hackers, as long as they knew about the criminal activity and agreed to play a role in it. Conspirators don’t have to know everyone or everything involved a plot—once you join a conspiracy, you’re “all in” and are liable for all foreseeable acts of the other conspirators.
For example, an American who knew about a hacking operation and agreed to distribute or use stolen material could join a conspiracy without knowing the hackers or how the hacking took place. That person could also be charged with abetting the hacking if distributing the stolen material aided in the crime.
That explains why a recent New York Times report that a Ukrainian hacker is helping the FBI with the Russia probe could be important. In order to charge anyone with a crime connected with the Russian hacking, Mueller will first need to prove that the hacking occurred. The testimony of the hacker could establish that the crime occurred, who was responsible for it and how it happened.
The more difficult thing for Mueller to prove is whether an American knowingly joined a Russian criminal conspiracy or aided in one. That’s why recent reports that Mueller is focused on Donald Trump Jr.’s meeting with a Russian lawyer is unsurprising, given the emails Trump Jr. released establish that he knew Moscow wanted to help his father’s campaign and he welcomed the assistance.
As I told The New York Times, that email string is not sufficient to prove that Trump Jr. joined a conspiracy. Again, Mueller needs to prove that Trump Jr. helped commit a crime or agreed to do so.
There are other unrelated criminal acts that Mueller could seek to prove in relation to that meeting. For example, it is a federal crime to receive material that you know is stolen, as long as it is worth more than $5,000 and it crosses state or international boundaries before you receive it. It is also a crime to offer to trade an official act, like reducing sanctions, in exchange for something of value.
Another crime is receiving a “contribution” from a foreign national. But as I told The Daily Beast, violating federal campaign law is not a crime unless it is done “knowingly” and “willfully.” That could be difficult to prove in the case of Trump Jr., although perhaps not for Manafort, who has a lot of campaign experience. Indeed, Mueller could establish Manafort’s state of mind regarding meetings with the Russians. As The Washington Post reported, the GOP operative rejected potential meetings with Moscow in emails that he sent before the Trump Jr. incident. In those emails, retired Admiral Charles Kubic raised concerns that a meeting could expose attendees to legal liability. A juror could conclude that such a correspondence show that Manafort was aware of the legal risks associated with the Trump Jr. meeting before he attended it.
Expect Mueller to interview everyone who attended the meeting and review all communications surrounding it. His primary purpose would be to understand what, if anything, came from it and whether there were subsequent and related talks between the Trump campaign and people who claim to represent the Russian government.
One thing we can be sure about is that Mueller’s inquiry will last many months. The recent suggestion by White House special counsel Ty Cobb that it should wrap up by Thanksgiving is disingenuous. Any lawyer with extensive experience with federal criminal investigations—and Cobb does—knows that a complex probe like this one could take years to complete.
Renato Mariotti was a federal prosecutor in Chicago for more than nine years, prosecuting many complex financial crimes and obstruction of justice cases.
As speculation continues to swirl about President Donald Trump’s plans to put an end to the investigation being conducted by Special Counsel Robert Mueller, the ongoing congressional inquiries take on even more significance.
Several committees are investigating overlapping issues related to Russian interference in the 2016 election and any potential involvement of the Trump campaign. Here are 20 questions they must answer as they carry out their investigations.
Russian Attempts to Influence U.S. Election
Congress must provide the American people with a full accounting of Russia’s efforts to influence the 2016 presidential election, including through cyber operations, leaking stolen private communications, and spreading of demonstrably false facts.
Donald Trump and Vladimir Putin at a meeting on the sidelines of the G20 Summit in Hamburg, Germany, July 7, 2017. MIKHAIL KLIMENTIEV/AFP/Getty
1. What was the extent of Russian cyber operations focused on voter information held by states?
Publicly available information suggests that Russian agents attempted to penetrate “election systems” in up to 39 states and attempted to alter or delete records in the statewide voter registration database of at least one state, Illinois.
2. What was the extent of Russian cyber operations focused on infiltrating state election systems via a third party? Press reports indicate that the Russians successfully infiltrated the network of a company that sells voter registration software which would allow it to manipulate this data.
3. What was the extent of Russian cyber operations focused on obtaining the confidential communications of private parties and releasing damaging information? The theft of the emails of the Democratic National Committee (DNC) and of John Podesta, the chairman of Hillary Clinton’s campaign, has been publicly reported.
4. What was the extent of Russian propaganda efforts to influence the election and what methods were used? Publicly reported efforts include the release of emails stolen from the DNC and the Clinton campaign supplemented by the use of human agent and robot computer programs to spread disinformation about these emails and the use of Twitter bots to spread fake news stories about Clinton (e.g., that she had Parkinson’s disease and had murdered a DNC staffer, and that her aides ran a pedophile ring in the basement of a D.C. pizza parlor).
5. Which elements of the Russian government and intermediaries or proxies were involved in these efforts?
6. What was the purpose of their efforts? The intelligence community has concluded the Russian government intended to promote Trump’s candidacy and undermine Clinton’s campaign, an assertion that the president contests – Congress should come to a conclusion on this point.
Is it possible to gauge the impact of Russian interference in the 2016 election and could measures be put in place to do so in the future?
7. What measures should the United States take to prevent such interference in future elections? Is legislation needed to clarify that cooperation with foreign actors in elections is a criminal offense?
Trump Ties to Russia
It is critical that Congress scrutinize connections between Trump and his associates and the Russian government and associated individuals and entities, both to determine whether the Trump campaign cooperated with the Russian attempt to influence the election and whether business dealings between Trump or his associates with Russian entities create vulnerabilities or financial incentives that could be exploited to the detriment of U.S. national interests.
8. Starting from the time of the party primaries in 2015, what contacts did Trump and individuals and entities associated with the Trump campaign have with Russian individuals or entities?
Have these individuals and entities followed legal requirements with respect to such contacts (e.g., registration as foreign agent, reporting of income, and disclosure on security clearance forms) and if not, why not?
The campaign’s denials of contacts with Russians have dissolved in the face of repeated instances where close Trump associates – including Michael Flynn, Donald Trump Jr., Jared Kushner, and Jeff Sessions – were found to have met or communicated privately with individuals who are reportedly connected to the Russian government.
9. What was the purpose of these contacts? Donald Trump Jr. released emails showing that he had enthusiastically accepted an invitation to obtain information being proffered on behalf of the Russian government that would be damaging to the Clinton campaign.
Did other contacts similarly involve either offers of assistance to the Trump campaign by Russia or offers of assistance to Russia (or Russian interests) by the Trump campaign?
10. What was the extent of the Russian government’s effort to instigate the repeal of the Magnitsky Actand were Trump’s associates involved in these efforts?
11. Is there any evidence – direct or circumstantial – to suggest that Trump was aware of, sanctioned or approved, or directed contacts between his associates and Russian government proxies?
12. What is the full extent of past or existing business dealings between the president and his associates in Russia or with Russian nationals or entities?
Do any of these deals or relationships give Russia leverage over Trump or his associates – for example, if they were illegal or inappropriate, if they are continuing to provide a benefit to Trump’s businesses or associates, or if they resulted in significant debts being owed by Trump or his associates to Russia or Russian nationals?
13. What efforts did the Trump campaign or administration make that would benefit Russia and is there any indication of influence from Russia for these moves? Were moves such as removing the plank of the Republican Party platform that supported sending arms to Ukraine, attempts to try to roll back sanctions against Russia, or a reported deal to give back Russian intelligence-collecting compounds seized by the Obama administration attempts to appease Russia?
14. Is our system of checks and balances sufficiently robust to detect and prevent conflicts of interest on the part of the president or are additional measures, such as legislation requiring greater disclosure of financial information and business interests, needed?
Obstruction of Justice
Regardless of whether the president can be criminally indicted for obstruction of justice, Congress has a duty to ascertain whether he attempted to hinder or influence the FBI’s investigation of issues relating to Russian interference in the 2016 election. Presidential interference with law enforcement investigations is incompatible with the rule of law.
15. Did President Trump ask former FBI Director James Comey to end his investigation of former national security advisor Michael Flynn, as indicated by Comey’s sworn testimony to the Senate Intelligence committee and his contemporaneous record of the meeting?
Did he ask other government officials – such as Director of National Intelligence Dan Coats and CIA Director Mike Pompeo – to intervene with Comey on his behalf?
16. Did the president ask Comey to pledge loyalty, as indicated by Comey’s sworn testimony to the Senate Intelligence committee and his contemporaneous record of the meeting?
17. Did Comey request additional resources for the Russia investigation the week before he was dismissed; if so, was this information communicated to the White House?
18. Under what circumstances did Deputy Attorney General Rosenstein and Attorney General Sessions undertake to prepare their May 9, 2017 recommendation to dismiss Comey?
What was the nature and extent of their communications with the White House and the Justice Department about the recommendation, both before and after it was made?
19. Why did Trump dismiss Comey?
Was he motivated solely by Comey’s handling of the Clinton email investigation, as administration spokespersons originally claimed, or was he at least partially motivated by Comey’s handling of the Russia investigation, as publicly stated by the president?
20. Are further measures needed to insulate the FBI or the Department of Justice from political interference?
Faiza Patel is Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law. She was a senior policy officer at the Organization for the Prohibition of Chemical Weapons.