Magazine August 14, 2017, Issue

Collusion Confusion

Robert Mueller departs from a meeting with members of the Senate Judiciary Committee, June 21. (AP Photo/J. Scott Applewhite)
The question is, Collusion in what?

Allegations of Trump-campaign collusion in Russia’s 2016 election meddling have always been studiously ambiguous. The controversy is the subject of a reportedly intensifying investigation by Justice Department special counsel Robert S. Mueller III. Yet collusion is too vague a concept on which to premise a prosecution. The criminal law concerns itself with conspiracy: an agreement between two (or more) people to commit a specified penal-law violation. Conspiracy is a crime. Collusion is two parties collaborating on . . . something. It takes two to tango, but if the pair just make goo-goo eyes, it’s not a tango, even if there’s background music.

The lack of an agreed-upon crime — in this case, between the Trump campaign and the Russian regime — would ordinarily be cause for shutting down an investigation. Indeed, it would be grounds for refusing to appoint a special counsel. Such an appointment is authorized under federal regulations only when there is evidence of a crime that the Justice Department is too conflicted to investigate legitimately.

From the first, the so-called Russia investigation — the probe of Kremlin interference in the 2016 election — has been a counterintelligence investigation. Such an inquiry is not a criminal investigation. It is an exercise in information-gathering, seeking to determine and thwart the intentions of foreign powers to the extent they portend trouble for U.S. interests. It does not seek to build criminal cases. It is the work of intelligence officers, not prosecuting lawyers.

Yet when President Donald J. Trump gave contradictory statements of his rationale for firing FBI director James B. Comey, Democrats and their media friends wailed that Trump was obstructing the Russia investigation. He was not: Presidents have indisputable authority to dismiss executive-branch subordinates, and the Russia investigation continued unaffected — no surprise given that Comey had told Trump he was not a suspect in what was not, in any event, a criminal investigation. The Justice Department nevertheless allowed itself to be browbeaten into appointing a “special counsel.” That’s the closest thing federal law has had to an Archibald Cox–type “special prosecutor” since the independent-counsel statute was allowed to lapse two decades ago (after Democrats had watched a prosecutor wither the Clinton administration).

The lack of an apparent crime — which would cause a normal prosecutor to close his investigative file — has become a blank check for Mueller. Trump’s Justice Department having failed to place limits on his warrant, the special counsel is free to conduct a fishing expedition. Mueller has used his bottomless budget to hire a legion of lawyers with a history of Democratic-party activism and hardball prosecutorial aggression.

The vaporous concept of collusion implies no boundaries on Mueller’s jurisdiction. That makes it a very useful word for the Trump “resistance,” too.

Though credible, the publicly available evidence that Democratic e-mail accounts were hacked by Russian intelligence operatives is hardly overwhelming. There is even less evidence that the publication of e-mails hacked from Democrats had any impact on the outcome of the election. (How many Americans know who John Podesta is? One in a hundred?) And the deduction that Russia’s “cyber espionage” operation was motivated by Putin’s desire that Trump defeat Clinton is sheer speculation by an intelligence community notorious for politicizing its conclusions during Obama’s tenure. It flies in the face of the agencies’ ballyhooed report, which recounts that Russia targeted both Republican and Democratic e-mail accounts. It is also inconsistent with what we know about Putin, whose goal is to undermine America regardless of which party is in power — a goal he successfully advanced when Obama was president and Mrs. Clinton secretary of state.

There are no indications that Russian cyber espionage affected the actual voting process. In fact, in a fleeting moment of candor before the collusion narrative got rolling, Obama touted U.S. national elections — each comprising 50 state elections — as too diffuse and insulated from the Internet for hackers to undermine. So while Russia hacked, it did not “hack the election.” It sought to influence the campaign and incite discord in the aftermath. While hacking is a crime, seeking to influence an election is not. Both Israeli prime minister Benjamin Netanyahu and the pro-Brexit camp in Britain can tell you what it’s like to have President Obama playing for your opponent’s team.

At least so far, there is no indication that anyone working in Trump’s campaign even knew about the hacking, let alone encouraged or took part in it. That’s why we have the ubiquitous talk of collusion. Without a crime to point to, Democrats are left to weave a sinister plot out of nondescript interactions between Russian elements (with varying ties to Putin) and Trump associates (some of them with an attenuated connection to his campaign). As the Clinton Foundation could tell you, it’s not a crime to do business with Russians.

The “collusion” label lets Trump’s detractors demand a wide-ranging investigation without the burden of showing any felonious wrongdoing. “Collusion” being an elastic term, it also allows Democrats to fold newly emergent facts into the nefarious narrative.

Trump’s defenders have mounted a two-part response. First, they have stressed that, despite more than a year of investigation by the FBI, there is no proof of collusion — i.e., of any meaningful, coordinated activity. Second, since collaboration is not necessarily illegal, they ask, “Collusion in what?

Part one of that defense is gone now. It was removed by the New York Times’ dogged reporting showing that top Trump-campaign officials met with a Putin-regime emissary on June 9, 2016, at the request of Donald Trump Jr., who expected delivery of information harmful to Hillary Clinton.

This bombshell just emerged in mid July. In a weekend of inept dissembling, Donald Trump Jr. tried to keep up with the Times. He had originally claimed that he’d never met with Russians in his formal role as a top official in his father’s campaign. When confronted with contrary evidence, he admitted there had been one meeting but insisted it was solely about American adoptions of Russian children. Then, when the Times’ sources contradicted him, he conceded that there might have been a teeny discussion of Clinton dirt, but it went nowhere. Finally, on learning that the Gray Lady had obtained and was about to publish his e-mails about the meeting, Trump Jr. released them — striving always, he said, to be “transparent.”

The e-mails are explosive. They center on Aras Agalarov, who is also, we can be sure, the center of Mueller’s attention. Agalarov, a Moscow real-estate magnate, is a Putin crony and has been a Trump business partner. He arranged for Russian prosecutors “to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia.”

This message was conveyed in an e-mail to Trump Jr. from Rob Goldstone, a British publicist and Trump acquaintance who helps manage Agalarov’s pop-star son, Emin. Goldstone told Trump Jr. that this information, which “would be very useful to your father,” was “obviously very high level and sensitive.” It was, he said, “part of Russia and its government’s support for Mr. Trump — helped along by Aras and Emin” (my italics). Goldstone further explained that he could have just sent the information directly to “your father” through a contact named “Rhona” but decided it was preferable to get it to Trump Jr. first.

Minutes later, Trump Jr. replied, “If it’s what you say I love it especially later in the summer.” By late summer, of course, Trump would have the GOP nomination sewn up and be pitted one on one against Clinton, the Democratic nominee.

Goldstone arranged for a phone call between Trump Jr. and Emin Agalarov on June 6. The next day, Goldstone followed up with an e-mail to Trump Jr.: “Emin asked that I schedule a meeting with you and The [sic] Russian government attorney who is flying over from Moscow for this Thursday.” Goldstone noted that Trump Jr. was already “aware of the meeting” — an apparent reference to Trump Jr.’s phone call with Emin the previous day.

Goldstone elaborated that there would be two people coming on behalf of the Russian government. Trump Jr. instructed that they come to Trump Tower in Manhattan on Thursday afternoon (June 9). He added that he’d be accompanied by “Paul Manafort (campaign boss) and my brother in law.” Manafort, a longtime political consultant, was running the Trump campaign at the time but would be cashiered a few weeks later in a scandal involving big-money payments from his Kremlin-backed Ukrainian clients. Trump Jr.’s brother-in-law, Jared Kushner, is now President Trump’s closest White House adviser. In that capacity, Kushner needs a security clearance. In applying for one, he inadvertently failed to include meetings with foreign contacts, including the meeting with Russians on June 9. His inclusion of the meeting in an amended disclosure to chatty government officials is probably what tipped the Times off.

As scheduled, two Russians did show up at Trump Tower on June 9. Natalia Veselnitskaya was the attorney. Trying to distance Veselnitskaya from Putin (and thereby minimize the e-mails’ damage), Trump’s defenders point out that she is not actually a Russian-government attorney. This is a frivolous distinction in the context of Putin’s Russia. Veselnitskaya was a Russian prosecutor for three years before moving to a “private” practice in which she represents Putin’s oligarch cronies. She is a regime lawyer even if no longer formally a government lawyer.

Besides the Agalarov connection, Veselnitskaya’s principal patron is Pyotr Katsyv, vice president of the government-owned national railway service. She represented Katsyv’s son, Denis, in a major American asset-forfeiture case arising out of a regime-orchestrated $230 million fraud that was uncovered by Sergei Magnitsky — a whistleblower who was imprisoned, tortured, and killed by Russia’s government in 2009. Putin was enraged when, in retaliation, Congress enacted the 2012 Magnitsky Act, enabling the seizure of Russian assets. Since then, Veselnitskaya has spearheaded Moscow’s crusade to smear Magnitsky’s reputation and have the act repealed.

Oh, and remember how Trump Jr. initially claimed his meeting with Veselnitskaya was strictly about adoptions? It so happens that the Kremlin’s response to the Magnitsky Act was to prohibit American adoptions of Russian children. The subject is a staple of Veselnitskaya’s lobbying shtick.

Veselnitskaya does not speak or read English. The need for a translator probably explains the presence at the meeting of the second native Russian, Rinat Akhmetshin. An intriguing character, he is a former counterintelligence officer in the Soviet army. Having emigrated to the U.S. decades ago, Akhmetshin is an American citizen and a Washington lobbyist known for his familiarity with the dark arts of public-relations campaigns against opponents. Though he has occasionally been associated with anti-Kremlin causes, he also supports Putin positions. For example, he has worked with Veselnitskaya to get the Magnitsky Act overturned.

In sum, Akhmetshin is a shady character, but not a completely reliable one from Moscow’s standpoint. He appears to have been a very late addition to the meeting. So last-minute was the notice, Akhmetshin had to hustle to glitzy Trump Tower, he says, in jeans and a T-shirt.

What happened at the meeting?

We cannot be sure. Trump Jr.’s conflicting accounts render him an unreliable witness. Before he knew the Times had the whole story, he claimed that Veselnitskaya was there to talk about “adoptions.” That is troubling, and not just because Trump Jr. was lying. Veselnitskaya’s well-known anti-Magnitsky lobbying would make “adoptions” a perfect cover story if people premeditated about the need for one because they were up to no good.

According to Trump Jr.’s final version of events, Veselnitskaya tried to provide some information in the nature of “opposition research” about illegal Russian funding of Democrats. The material was incoherent and useless, such that the meeting shifted to Veselnitskaya’s “real agenda” — adoptions. Trump Jr. says the meeting lasted only 20 to 30 minutes, mainly because he was being polite. Manafort and Kushner are said to have been uninformed about the point of the meeting and unengaged during it. There was, the Trump camp maintains, no follow-up.

Though Trump Jr.’s conflicting stories make his latest account suspect, it is supported by other evidence. If what Veselnitskaya transmitted was, in fact, information about illegal donations, the Trump campaign never used it. Jared Kushner voluntarily provided Congress with a statement that, during his brief stay at the meeting, Veselnitskaya talked only about adoptions; it was such a waste of his time that, in a quick e-mail, Kushner directed his assistant to call him so he’d have an excuse to leave. Trump Jr. is also corroborated by Akhmetshin — ironically so, since the corroboration is drawn from a damaging detail about a plastic file that Trump Jr. did not disclose to the New York Times.

In press interviews, Akhmetshin revealed that Veselnitskaya gave Trump Jr. a plastic file containing documentary evidence of the purported illegal funding. He added, however, that this information was sketchy and that when she proved unable to answer Trump Jr.’s questions about it, Veselnitskaya suggested that the Trump campaign do any necessary research. It became painfully clear, Akhmetshin recalled, that the information, supposedly devastating to Clinton, was really much ado about nothing. He said Trump-campaign officials clearly could not wait for the meeting to be over, which it soon was.

As one would expect, Democrats leapt on Akhmetshin’s disclosure about the plastic folder, urging that the Mueller investigation must obtain this crucial evidence. But shouldn’t we resist cherry-picking Akhmetshin’s account? If he’s telling the truth about the plastic folder, there’s a good chance he’s telling the truth about the meeting’s being a bust. After all, he does not seem to be in lockstep with the regime. Veselnitskaya has publicly denied that the meeting had anything to do with damaging information about Clinton (and of course, the Kremlin denies that Putin had ever heard of Veselnitskaya). Akhmetshin, to the contrary, acknowledges that the point of the meeting was to transmit damaging information about Clinton, but he recalls that, to the chagrin of the Trump campaign, there was nothing particularly damaging in the information offered. That is what Trump Jr. says, too. It is a plausible account and, at least for now, one that stands unimpeached.

It is no longer credible, after these revelations, to claim that there is no evidence of collusion. But, again, collusion in what?

The Trump Tower meeting suggests three possibilities. The first is that there really was a conspiracy in which the Trump campaign knew about and encouraged Putin-regime hacking. This possibility cannot be discounted, but it remains unproven and unlikely. There is no indication that participants in the June 9 session had any knowledge of Russian cyber espionage, and no obvious reason that Putin’s intelligence services would inform the Trump campaign about what they were up to.

More likely is a blackmail scenario. Putin’s cronies understood that they did not need to give Trump any valuable information. Merely by getting Veselnitskaya in the room, under circumstances in which Trump’s top advisers had taken the meeting only because they’d been promised dirt on Clinton, the Russians compromised Trump. If Trump won the election (and Putin was reportedly surprised when he did), the Kremlin would have leverage: At some strategic point, Putin could expose or threaten to expose their surreptitious campaign machinations.

The third possibility is that the Trump Tower meeting is a case of amateur hour on both sides. Agalarov, who knows and likes Trump, could have tried to be helpful — figuring Putin would be supportive but not cutting the Kremlin in on it. He overhyped information he obtained from Russian prosecutors and then transmitted it through Veselnitskaya — who is useful but not exactly the A-team. She was not competent to explain the purportedly damaging documents, and she pivoted to her Magnitsky Act spiel when it became embarrassingly clear that her information was a dud. Foolish of Trump Jr. to take the meeting, but nothing more to it.

While the blackmail scenario seems most plausible to your humble correspondent, it is worth pausing over what still appears farfetched at this point: Trump collusion in Russian cyber espionage. That, after all, is the only scenario that involves a crime. It is crime alone that should trigger the appointment of a prosecutor.

Not in this case, though. Special Counsel Mueller has apparently boundless jurisdiction, not limited to the investigation of suspected crimes specified by the Justice Department — notwithstanding that this limitation is expressly required by the regulations governing special-counsel appointments.

This is troublesome. It is why Trump, despite his appalling failure to recognize Russia’s malevolence, has a point in raging against Mueller’s “witch hunt.” The history of independent-prosecutor investigations, even when they have had a concrete crime to target, has been to stray far afield. Under pressure to come up with some charge to justify the length and expense of the hunt, they devolve into investigations of investigations: Eventually, they charge “process crimes” — such as grand-jury perjury or false statements to investigators — long after the original allegation has disintegrated.

Here, it is worse: Mueller is not starting with a specified crime. He has been invited not merely to follow the facts wherever they may lead but to decide which facts about Donald Trump are worth peeking into: maybe any business dealing he’s ever had with a Russian, maybe any condo he’s ever sold to a Russian, maybe any transaction he’s ever conducted, period.

Trump has himself to blame for the debilitating effect the investigation is already having on his capacity to govern. He ended up with Mueller as special counsel because of the shoddy way he fired Comey. First, he claimed it was the Justice Department’s idea, even though he’d already made the decision and directed the DOJ to write a memo. When that explanation didn’t fly, he said the firing was his own idea and that the Rosenstein memo had had nothing to do with it — thereby pulling the rug out from under administration spokesmen. Despicably, Trump hosted Russian diplomats the day after Comey’s dismissal and reportedly denigrated the former director as “crazy, a real nut job” and told them that cashiering Comey relieved the “great pressure” he was under “because of Russia.”

Again, our mercurial president was his own worst enemy. It’s hard to see how Trump could have done more to fuel the collusion narrative. Rosenstein, who prides himself on good relations with both parties, was spooked when much of the resulting furor was directed at him for writing the pretextual Comey memo.

With Attorney General Jeff Sessions having recused himself (over his dealings with the Russian ambassador), Rosenstein decided to wash his hands of Trump’s mess and rehabilitate his sterling Washington reputation. He took it upon himself to appoint Mueller and make him a veritable Inspector Javert. Democrats were appeased: Mueller’s well-known friendship with Comey gives them confidence he will scrutinize the firing for evidence that Trump was obstructing the Russia investigation; and with no jurisdictional limits, he is free to hound Trump on virtually anything, no matter how tenuously tied — or even untied — to Russia.

Naturally, Trump is irate at the prospect of aggressive investigators with subpoena power combing through his real-estate company’s history, his tax filings (i.e., the records he promised to disclose during the campaign), and the interactions of family members and associates — all in the absence of probable cause that the president has violated any law. Trump has therefore assembled a team of outside lawyers and publicists, part of whose job is to castigate Mueller’s staff for its bloat, zeal, and ties to Comey and the Democrats. Reports abound that the irascible president could fire the special counsel, fulfilling his opposition’s fondest wish for a Watergate 2.0 scandal.

Dismissing Mueller, which would prompt bipartisan outrage and high-level resignations at the Justice Department, would be tantamount to political suicide for Trump. His base would applaud wildly, but the already challenging path for his agenda to move through Congress would be closed.

This does not mean the president should sit by passively. It would be entirely correct and appropriate for him to observe that, in appointing Mueller, Rosenstein failed to follow the applicable regulations. The original appointment order should be superseded by a new and narrower appointment order written by Rosenstein that specifies what crimes Mueller is authorized to investigate. This would not prevent Mueller from seeking an expansion of his jurisdiction if, at some point, he stumbled upon evidence of other crimes that warranted investigation. But it would provide clarity to the administration and the public about exactly what misconduct, if any, Trump is suspected of committing — and whether it actually merits the attention of a prosecutor.

It’s got to be something more than “collusion.”

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