Magazine | November 27, 2017, Issue

Mueller’s Endgame: Impeachment

Collusion is not a crime, but proving a crime is not the point

The main thing to understand about “collusion” is that it is not a crime.

You are in good company if that makes you wonder why a non-crime is the subject of a lavish investigation led by Robert Mueller and the 16 alpha prosecutors he has hired — four or five times the number the Justice Department usually assigns for the “trial of the century” that seems to pop up every few years.

The word “collusion,” with just the right dark intonation, makes for a sinister storyline. Criminal cases, however, are not media narratives, so pejorative-word games will not get an investigator very far. In the semantics of prosecution, “collusion” refers more to concerted activity; the activity is not necessarily illegal and therefore not necessarily of interest. What prosecutors care about is conspiracy, an agreement by two or more people to commit a crime — not a vaporous collaboration but a concrete confederation whose objective is to violate a penal statute. In the case of so-called Trump collusion with Russia, this has to mean the knowing, active complicity by Donald Trump’s presidential campaign in what the Obama-led U.S. intelligence community alleged was Russia’s cyber-espionage attack on the 2016 election — a purposeful collaboration to promote Trump’s candidacy and undermine Hillary Clinton’s.

From a prosecution standpoint, Mueller either has this or he has nothing. That, indeed, is why I’ve long believed Mueller is not limiting himself to a prosecutor’s perspective. The real word lurking behind “collusion” is not “conspiracy.” It is “impeachment.”

That collusion is not a crime became strikingly obvious, even if studiously unnoticed by the media-Democratic complex, in late October. It was then that Special Counsel Mueller announced the first formal charges in his probe.

Two sets of charges were unsealed on October 30 by Mueller’s team. The first was a twelve-count indictment against Paul Manafort, a longtime political consultant. Formerly an adviser on the presidential campaigns of Ford, Reagan, Bush 41, and Dole, Manafort was recruited to serve as Donald Trump’s campaign chairman. The arrangement, however, lasted just four months, until August 2016, when it surfaced that he had been paid millions of dollars by the Kremlin-backed political party of Viktor Yanukovych, the former president of Ukraine. The indictment, which also charges Manafort’s business partner, Richard Gates, came as no surprise.

Manafort has been in the crosshairs for six months, ever since Mueller’s appointment by Deputy Attorney General Rod Rosenstein, who was then under fire for his supporting role in President Trump’s May 9 firing of FBI director James Comey. If Manafort had any doubts about Mueller’s assessment of his status, they were dispelled in July, when FBI agents working for the special counsel conducted a pre-dawn raid on Manafort’s Virginia home. One day before the agents broke in, Manafort had voluntarily sat for an interview by a congressional committee investigating Russian meddling in the election, and he was scheduled for another committee’s interview the very day of the raid. Mueller chose to use a search warrant and an aggressively intrusive tactic to execute it: Agents picked the lock of Manafort’s home and entered with guns drawn while he and his wife were still sleeping, and they patted down Mrs. Manafort for weapons before allowing her to get out of bed. Mueller had his team take this approach even though he could have issued a grand-jury subpoena or requested documents from Manafort’s counsel. This was hardball.

The second set of allegations was a surprise. Mueller announced that George Papadopoulos, a 30-year-old climber who had been a foreign-policy adviser to the Trump campaign, had pleaded guilty to a one-count “criminal information” (a charging document the prosecutor files when a defendant agrees to waive his right to indictment by a grand jury). Papadopoulos is obviously cooperating in the investigation. His plea was accompanied by a 14-page description of his activities during the Trump campaign. It also emerged that, although Papadopoulos had quietly pled guilty in early October, he had been providing information to Mueller’s investigators since his unpublicized arrest in late July. This has led to speculation that Papadopoulos’s cooperation might have involved secretly recording conversations with other suspects.

Sounds alarming. In reality, though, Mueller’s opening salvo undoubtedly had the Trump White House more relieved than distraught.

To begin with, the Manafort indictment has nothing to do with Donald Trump and the 2016 campaign, let alone with hacking by Russian intelligence operatives. Its focus, instead, is the decade prior to Yanukovych’s 2014 ouster, during which Manafort and Gates are said to have pocketed about $75 million in political-consulting fees from the aforementioned shady Ukrainian party — consistent with Manafort’s louche history of prettying up a rogue’s gallery of tyrants and torturers. (Besides conventional domestic consulting, the Daily Beast’s Betsy Woodruff and Tim Mak recount, Manafort has taken on such clients as Angola’s Jonas Savimbi, Congo’s Mobutu Sese Seko, the Philippines’ Ferdinand Marcos, Nigeria’s Sani Abacha, and Somalia’s Siad Barre.)

The astronomical dollar figure in Mueller’s pleading diverts the reader’s attention from a stubborn fact: It is not a crime for an American to be paid for advisory services rendered to a foreign government or faction — even a despicable one — with which the United States is not engaged in hostilities. So Mueller’s case is built on two recondite conspiracy allegations: the failure to comply with technical reporting requirements for agents of foreign powers and money held in offshore bank accounts, and money-laundering.

Manafort is 68 years old. The very real prospect of any federal felony conviction and accompanying prison sentence should be especially distressing at that age. That said, Mueller’s case against him is no slam dunk. The Justice Department virtually never charges a foreign agent’s failure to register with the federal government, yet this violation is the core of several charges against Manafort; he will therefore claim that he is being selectively prosecuted. Moreover, though the Ukrainian payments go back to at least 2006, the statute of limitations on most federal crimes is five years. That wipes out much of the conduct prior to 2012, dramatically slashing the prosecutable dollar amount of fraud. (The first conspiracy charge, portentously labeled “Conspiracy against the United States” by the prosecutors, is actually a fraud scheme brought under a low-level, catch-all federal conspiracy statute. It carries a maximum sentence of only five years, but prosecutors transparently hope it will provide the court with a rationalization to permit proof of the otherwise time-barred pre-2012 crimes — the “conspiracy” theoretically connects them to a single scheme that began before 2012 and continued for years afterward.)

As for money-laundering, federal law generally requires proof that the cash at issue start out as the proceeds of crime before the defendant conceals it through various bank transfers and asset acquisitions. Mueller dubiously theorizes that the Ukrainian payments were illegal because Manafort did not register as a foreign agent and disclose his foreign bank accounts. But that conflates the payments, which seem to have been legal when made, with after-the-fact violations of disclosure rules. Meanwhile, the special counsel has improperly charged a single false statement — said to have been made in 2016, when Manafort attempted to rectify his failure to file as a foreign agent — as two false-statement crimes, a sharp tactic that flouts double-jeopardy principles.

The defense thus has cards to play. Although the district court in Washington is anticipating a trial in the spring, Mueller is manifestly not done filing charges. The indictment repeatedly asserts that Manafort and Gates evaded their taxes and filed fraudulent returns, but no tax counts are charged. Similarly, though describing sundry deceptions of financial institutions, the indictment contains no bank-fraud charge. This offense carries a sentence of up to 30 years’ imprisonment — a term considerably more severe than that on any count the special counsel has charged to this point. We should expect Mueller to supersede the indictment, adding these and other offenses, to ratchet up the pressure on Manafort.

Still, it bears emphasizing that the Trump-Russia investigation was going on for close to a year before Mueller took it over, with Manafort a prime suspect. Despite months of exhaustive chatter about collusion, there appears to be no prosecutable collusion case. Manafort is being squeezed to spill whatever beans he might have regarding collaboration between Trump’s campaign and the Putin regime. Perhaps this is because the prosecutor believes Manafort is hiding some criminal arrangement. More likely, it is because he sees Manafort as the key to unlocking some inchoate intrigue between Trumpworld and the Kremlin, not solidly criminal but vaguely corrupt and worrisome from the standpoints of foreign policy and American security.

The weakness of the “Trump collusion with Russia” narrative as grist for criminal prosecution is more patently betrayed by the guilty plea of George Papadopoulos. Not that you’d know it from the giddy media coverage.

In stark contrast to the Manafort case, collusion pours off every page of the 14-page “statement of the offense” filed by Mueller’s team in the Papadopoulos case. Papadopoulos is cooperating with the special counsel, so we should note that this statement, while in the defendant’s voice, is crafted in conjunction with the prosecutors. That does not make it untrue — far from it. But it does mean the script puts the best spin on the provable facts from the prosecution’s standpoint.

Papadopoulos as “foreign-policy expert” is something that could have happened only in the Trump campaign. With his blandishments toward Russia, isolationist overtones, and sniping about the Bush era (in particular its misadventures in Iraqi nation-building), Trump was shunned by the GOP’s foreign-policy clerisy. Seats at the table ordinarily reserved for party solons were assumed by such obscure characters as Carter Page — an Annapolis-educated investment banker, Russophile, and former naval officer who, like Manafort, has long been a known subject of the collusion investigation. Another such character, lesser known, was Papadopoulos, a 2009 DePaul graduate who earned a master’s degree from the University of London and worked on a second degree at the London School of Economics. He kicked around Washington doing think-tank intern work and hoping to be noticed. So unaccomplished was Papadopoulos that he listed on his résumé a purported 2012 stint as a participant in the Model United Nations in Geneva. (Organizers of the Model U.N. tell the Washington Post there is no record of his participation.)

Nonetheless, while living in London in March 2016, Papadopoulos was brought aboard the Trump campaign by Sam Clovis, the former Iowa talk-radio personality who served as the campaign’s co-chairman (and who is identified not by name but as “the campaign supervisor” in Mueller’s court filings). Shortly afterward, Papadopoulos met with a London-based academic (“the Professor”), identified in recent press reports as Joseph Mifsud, a Maltese national in his mid fifties. In European circles, Mifsud is notorious for boasting of Kremlin contacts. Whether he actually has meaningful connections is unclear — he told the Post, “I do not even speak Russian.”

The offense statement describes what appears to be a good deal of puffery on both sides of the Papadopoulos–Professor dealings: Papadopoulos suggested he might be able to make Trump available for a meeting with Putin and, with great self-importance, told campaign superiors (later identified in press reports as Clovis, Manafort, and Corey Lewandowski, the onetime Trump campaign manager ousted in June 2016) that Russians were relying on him as their campaign contact. For his part, Mifsud maintained that he might be able to make Putin available, and he introduced Papadopoulos to a “female Russian national” who was falsely presented as Putin’s niece.

There was plenty of heavy breathing about potential high- and low-level confabs between the Trump camp and Russian officials, but no Papadopoulos-brokered meetings ever occurred. In fact, the offense statement notes in passing that, while Papadopoulos was pushing for action, one high-level campaign official — probably Manafort — emailed another regarding these entreaties: “We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.” The most logical interpretation of this is that Trump had no intention of meeting with Russians and that, if there were to be any meetings at all, they would have to be so low-level that Putin would understand that Trump was making no commitments.

In late April, Mifsud told Papadopoulos he had just heard that top Russian officials had “dirt” on Hillary Clinton: a trove said to include “thousands of emails . . . of Clinton.” While this titillates the collusion enthusiasts, it seems likely that Mifsud was playing the ambitious younger man. He may’ve had a penchant for exaggeration, but it was widely known that Mrs. Clinton had deleted more than 30,000 emails from a private server system and that there were concerns these communications had been hacked by foreign intelligence services, including Russia’s. It does not appear that Papadopoulos ever received any emails or other Clinton “dirt” from “the Professor.” Furthermore, while Mifsud claimed that the Russians had Clinton’s own emails, the emails that we know were hacked were not Clinton’s — they belonged to the Democratic National Committee and Clinton campaign chairman John Podesta, with Clinton virtually absent from them. Mifsud could well have been stringing Papadopoulos along, weaving a story around media reports. It is far from clear that Putin’s regime even had this “dirt,” much less that it would have seen the Mifsud–Papadopoulos connection as a suitable pipeline for routing it to Trump.

In any event, even if there is any truth to the story, its implication is that the Trump campaign had nothing to do with Russia’s acquisition of Clinton emails. That is, there was no Trump collusion in Russia’s cyber-espionage. So we come to the most telling development.

In any investigation of a major scheme, the prosecutor’s fondest wish is a cooperating accomplice witness. Typically, in exchange for eventual sentencing leniency, this defendant will be made to plead guilty to the big conspiracy charge — admit that the scheme existed and explain the roles played by him and his confederates. To the contrary, what did Mueller have Papadopoulos plead guilty to? A measly process crime: one count of making a false statement to an FBI agent, involving the timing of his initial meeting with Mifsud. For all the media-Democratic prattle about “an attack on our democracy,” Papadopoulos is looking at a high likelihood of no jail time for this relatively minor offense.

Why not make the cooperator plead guilty to the big collusion scheme? Because collusion is not a crime. Even after everything Mueller has learned from Papadopoulos, whose collusion cup runneth over, the prosecutor is no closer to implicating Trump in Russian hacking — or any other actual crime.

Let’s close by remembering two things.

First, we have complained from the start that, in contradiction of federal regulations, Mueller’s jurisdiction was not limited to a probe of particular crimes. Instead, the Justice Department put him in charge of a counterintelligence investigation. This is not a criminal investigation; it is an information-gathering exercise centered on Russia, with license to prosecute any crimes incidentally discovered along the way. No, the crimes Mueller is finding do not establish Trump complicity in Russia’s influence operation against the 2016 election; but proving crimes has never been the core of Mueller’s mandate.

Second, like a counterintelligence investigation, impeachment does not require prosecutable crimes as a trigger. “High crimes and misdemeanors” is a term of art for political wrongs, for what Hamilton called the “misconduct of public men.” These are abuses of the public trust and can include insidious relations with foreign powers that call into question a president’s fitness for the highest public office.

It is unlikely that Robert Mueller will succeed in providing the factual grounds for such a political case. I believe, however, that he is energetically digging to determine whether such a case is possible. That is what the “collusion” investigation is about — unless you think Mueller hired 16 lawyers to make a false-statement case on a gullible tyro and affirm the common knowledge that Paul Manafort is a scoundrel.

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