Law & the Courts

Stone Indictment Underscores That There Was No Trump-Russia Conspiracy

Roger Stone speaks at the American Priority conference in Washington, D.C., December 6, 2018. (Jim Urquhart/Reuters)
Will the Justice Department ever correct the record?

Roger Stone is the shiny object. The obstruction charges in his long-anticipated indictment, made public on Friday, are not the matter of consequence for the United States.

Nor is the critical thing the indictment’s implicit confirmation that there was no criminal “collusion” conspiracy between the Trump campaign and Russia.

What matters is this: The indictment is just the latest blatant demonstration that Special Counsel Robert Mueller’s office, the Department of Justice, and the FBI have known for many months that there was no such conspiracy. And yet, fully aware that the Obama administration, the Justice Department, and the FBI had assiduously crafted a public narrative that Trump may have been in cahoots with the Russian regime, they have allowed that cloud of suspicion to hover over the presidency — over the Trump administration’s efforts to govern — heedless of the damage to the country.

The rationale for the Trump-Russia investigation — namely, the notion that the Trump campaign had “coordinated” in the Kremlin’s cyber-espionage operation to meddle in the 2016 campaign — has been nothing more than a suspicion harbored by political, law-enforcement, and intelligence officials who loathed Donald Trump. That there may be a thousand good reasons to dislike Donald Trump is irrelevant, for we are talking about investigations, not politics. Investigative suspicions must be rooted in fact, not contempt.

Not only was the suggestion of a Trump-Russia conspiracy not founded on fact. The officials calling the shots had reason to know that the premise was factually false. In truth, there was no evidence of Trump-campaign complicity in Russian espionage — nothing but the Clinton-campaign generated, unverified Steele dossier. The months-in-the-making Stone indictment is just the latest proof of that.

Yet investigators were not just content to let the country believe there was a Trump-Russia criminal conspiracy; they affirmatively encouraged the public to believe it was true. Even as they indicted people for providing misleading information and then failing to correct the record, they never themselves corrected the misimpression they had gratuitously created in public statements — the statement issued by FBI director James Comey, with Justice Department approval, just two months after Trump took office; and the statement issued by Deputy Attorney General Rod Rosenstein two months later, when he reiterated Comey’s testimony in appointing Special Counsel Mueller.

Let’s assume for argument’s sake that the special counsel could prove beyond a reasonable doubt that Russian intelligence orchestrated the hacking of the Democratic email accounts (i.e., the servers or accounts of the DNC and Clinton-campaign chairman John Podesta). As I have noted on other occasions, I accept the U.S. intelligence agencies’ finding that Russia is the culprit. But an intelligence finding is just an assessment of probability; it is not courtroom proof. And Mueller’s indictments of Russian intelligence officers, individuals, and corporate entities are effectively no more than press releases trying to put to rest any questions about Russia’s culpability. As the prosecutors well know, an indictment is just an allegation; it is evidence of nothing. Given that Vladimir Putin is never going to extradite his operatives to face U.S. criminal charges, Mueller’s team well knows that their allegations are freebies — they are never going to be tested in court.

But again, let’s give them that one, the foundation of the narrative. As the prosecutors have further developed their allegations, we’ve learned that Russia obtained the emails through its hackers and somehow got them to WikiLeaks, which then got them into mainstream publications. Mueller’s indictments of Russian entities strongly suggest that Russia acted alone in its hacking and troll-farm operations: The Kremlin neither needed nor sought help from Trump; its operations actually predated Trump’s candidacy; and sometimes it operated against Trump. Moreover, Mueller has never uttered a single sentence in all his charging instruments alleging Trump’s complicity in Russia’s espionage — the indicted Russians have no connection to the Trump campaign, and the indicted people in Trump’s orbit have no connection to Russia’s hacking.

So now we have the Stone indictment.

It alleges no involvement — by Stone or the Trump campaign — in Russia’s hacking. The indictment’s focus, instead, is the WikiLeaks end of the enterprise — i.e., not the “cyberespionage” of a foreign power that gave rise to the investigation, but the dissemination of the stolen emails after the hacking. And what do we learn? That the Trump campaign did not know what WikiLeaks had. That is, in addition to being uninvolved in Russia’s espionage, the Trump campaign was uninvolved in Julian Assange’s acquisition of what Russia stole.

The Stone indictment reads like an episode of The Three Stooges. Stone and two associates — conservative writer and conspiracy theorist Jerry Corsi, and left-wing-comedian-turned-radio-host Randy Credico, respectively denominated “Person 1” and “Person 2” — are on a quest to find out what WikiLeaks has on Hillary Clinton and when Assange is going to publicize it. But that does not suit Stone, who has cultivated an image of political dirty trickster and plugged-in soothsayer. In public, then, Stone pretends to know more than he knows and to have an insider’s view of Assange’s operation; behind the scenes, he scrounges around for clues about what Assange is up to, hoping some insider will tell him.

That is, it’s a clown show. A despicable one, at that. Assange is an inveterate anti-American who has done incalculable damage to U.S. intelligence operations. How interesting that Robert Mueller led the FBI during those debacles and has special incentive to dig into the WikiLeaks–Kremlin connection. And how interesting that Assange was a heroic figure to the Left, and the bane of the national-security Right, before his apparent distaste for Hillary flipped the script (at least for blind Trump and Clinton partisans). In any event, we have Stone and Corsi racking their brains about how to ferret out what Assange has got, and to understand the timeline in which he might release it — hoping against hope that it will kill off the Clinton bid. And we have Credico, Stone’s radio-host pal, dealing directly with Assange (mainly by interviewing him), then passing information along to Stone while imploring Stone to keep his (Credico’s) name out of it.

Meanwhile, Stone tells his friends in the Trump campaign that he has heard WikiLeaks may have information that would damage Hillary Clinton’s campaign. After the hacked DNC emails are published in July 2016, a “senior Trump campaign official was directed to contact Stone about any additional releases and what other damaging information [WikiLeaks] had regarding the Clinton campaign.”

“Was directed”? Naturally, you’re thinking, “was directed by whom?” By Trump? Could be . . . Stone says it was not, but who knows? The point, however, is not who did the directing but why it was thought necessary to reach out to Stone. The Trump campaign had to ask Stone because it was in the dark.

Plainly, the campaign was not involved in the hacking, so it did not know what the Russians gave Assange. And it had no involvement with WikiLeaks’ operations, so it turned to Stone, who had held himself out as a knowledgeable source. But Stone, too, was unsure. Mueller alleges: “STONE thereafter told the Trump campaign about potential future releases of damaging material by [WikiLeaks]” (emphasis added). The prosecutor has to say “potential” because Stone did not have solid knowledge of Assange’s intentions — he tried to find out from others (including Credico, who had contact with Assange), but they did not know for sure exactly what Assange had and whether or when he would publish it.

Mind you, it is not a crime to know that bad people have damaging information about your political opponent, nor to try to nudge them to publish it at the time most opportune for your political favorite. Here, the Trump campaign did not even know what WikiLeaks had. Its best source was Stone, but, like the campaign, he was pressing sources who might have the information about WikiLeaks that he lacked. No surprise, then, that Mueller does not even allege that Stone was in a criminal conspiracy with WikiLeaks, let alone that Trump conspired with WikiLeaks — much less with Putin.

Instead, Stone is charged with seven counts of obstructing congressional investigations — by giving misleading testimony, withholding and lying about the existence of records responsive to a congressional request, lying about his communications with Credico, and attempting to influence Credico to lie or refuse to testify. These are serious charges, and while Stone may have cards to play on the allegations that he made misrepresentations (more on that another time), the special counsel appears to have daunting evidence that Stone tampered with Credico’s testimony – a charge that involves Stone’s cheesy exhortations that Credico ape the stonewalling of both Stone hero Richard Nixon and “Frank Pentangeli” (the Michael V. Gazzo character who famously develops witness-stand amnesia in Godfather II).

Nevertheless, that’s secondary as far as the country is concerned. The salient fact is that the evidence-based narrative from which Mueller derives these obstruction charges underscores that the president and his campaign were not complicit in Russia’s hacking of Democratic accounts. That’s not new news. It is completely consistent with indictments Mueller has been filing for a year.

Why does that matter? Well, if I may beat a dead horse, in February 2017, Comey, then the FBI’s director, gave this astonishing public testimony at a House Intelligence Committee hearing:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

Understand:

1. It is standard government practice never to confirm or deny the existence of an investigation.

2. This is especially true of counterintelligence investigations, which target foreign powers, not individuals, and which are classified.

3. It violates Justice Department and FBI policy to identify a subject of any investigation if that subject has not been charged with a crime. This is especially true when the subject, whether a person or an entity (like the Trump campaign) is of interest to a counterintelligence investigation — again, such investigations are classified, and subjects whose suspected connections to foreign powers are being scrutinized should never be disclosed.

4. It is simply not true that, as a matter of course in a counterintelligence investigation, the Justice Department and FBI do an assessment of whether any prosecutable crimes have been committed. Instead, whenever agents happen to stumble upon evidence of a crime, they always consider whether to prosecute. This is not a routine aspect of counterintelligence investigations; it is an unremarkable fact applicable to all kinds of inquiries — even background investigations of applicants for government employment.

That is to say: It was wrong to acknowledge the existence of the classified Russia investigation, and it was egregiously wrong not only to name the Trump campaign as a subject but to do so in a manner that suggested criminal prosecution was foreseeable. Any thinking person would have taken Director Comey’s disclosure, in disregard of several law-enforcement and intelligence protocols, to signal that the new president could be conspiring with Russia in an espionage scheme, for which he — or at least officials in his campaign — might very well face criminal charges.

It has to have been obvious to investigators for months that this suggestion was misleading. Yet there has been no correction of the record. For month after month, the FBI, the Justice Department, and the special counsel have been content to allow the presidency to be enveloped in a cloud of suspicion that necessarily infects the administration’s capacity to govern, to conduct foreign relations, and to deal with Congress.

Why?

There is no reason why the special counsel could not have issued an interim report clearing the president of suspicion that he was a Russian agent. Doing so would merely have removed the specter of traitorous conspiracy from the White House. It would not have compromised Mueller’s ability to investigate Russia’s interference in the election; it would not have undermined Mueller’s probe of potential obstruction offenses by the president. (And while it is not Mueller’s job to discourage the president’s puerile “witch hunt” tweets, if the public had been told that the Justice Department withdrew its highly irregular public statements about Trump’s possible criminal complicity in Russia’s espionage, presidential tirades about the investigation would have ebbed, if not disappeared entirely.)

We are not just talking about having our priorities in order — i.e., recognizing that the ability of the president to govern takes precedence the prosecutor’s desire for investigative secrecy. We are talking about common sense and common decency: The Justice Department and the FBI went out of their way to portray Donald Trump as a suspect in what would have been the most abhorrent crime in the nation’s history. It has been more than two years. Is it too much to ask that the Justice Department withdraw its public suggestion that the president of the United States might be a clandestine agent of Russia?

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