These actions would also violate the federal criminal statute that bars foreign nationals from offering anything of value in a presidential campaign. Every party to such illegal acts is criminally liable.
There are also potential violations of the federal wire fraud statute. The evidence of a scheme to defraud? We know that Russia’s “active measures” included creating thousands of fictitious Twitter and Facebook accounts to generate fake news targeted to suppress the Clinton vote. Campaign officials are criminally liable if Mueller and his team prove an overlap between the illegal Russian fake news posts and the Trump campaign’s routine micro-targeted negative messages–a painstaking but manageable set of data comparisons.
In addition, the special counsel is examining whether a Russian politician with connections to organized crime, Alexander Torshin, routed an illegal campaign contribution to Trump through the NRA, which is relatively easy to trace. While not his primary assignment, Mueller might also uncover evidence of money laundering or other business-related corruption on the part of the Trump Organization. You can bet he has examined Trump’s tax returns.
Conspiracy is a much broader crime than is generally understood. The guidelines for judges who instruct juries say that the prosecution need only prove that there was “a mutual understanding, either spoken or unspoken, [Emphasis added] between two or more people to cooperate with each other to accomplish an unlawful act.”
It doesn’t matter whether the “mutual understanding” was before, during or after the crime was committed. “It is not necessary that a defendant be fully informed of all the details of the conspiracy, or all of its participants,” the model jury instructions continue. “You need not find that the alleged members of the conspiracy met together and entered into any express or formal agreement.”
Under the so-called “doctrine of willful blindness,” reinforced by Supreme Court Justice Samuel Alito in a majority opinion in 2011, juries are instructed to “consider whether the defendant deliberately closed his eyes to what would otherwise be obvious to him.”
“The key question,” the jury instruction concludes, “is whether the defendant joined the conspiracy with an awareness of at least some of the basic aims and purposes of the unlawful agreement.” Don Jr.’s excitement over receiving Russian dirt on Clinton, Jared Kushner’s interactions with Cambridge Analytica and thus with Wikileaks, and Trump’s knowledge of these or other ties to Russians and his use of that knowledge in the campaign, all suggest such “awareness.”
Two other legal concepts are relevant. Much of the obstruction case—from Trump interfering with the FBI probe to re-writing his son’s statement aboard Air Force One after revelations about Don Jr.’s meeting with the Russians–revolves around the president’s concern that he had something to hide, also known as “consciousness of guilt.” He also might be charged as “an accessory after the fact,” which requires only that the defendant “receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension.”
Now consider just a bit of what has emerged about “mutual understanding,” “willful blindness,” “awareness,” “assists” and “consciousness of guilt” in the Trump-Russia case, which is in turn a fraction of what Mueller knows. As in any criminal case, the timeline is critical:
April 26, 2016: George Papadopoulos, whom Trump named as one of his “top five” foreign policy advisers, learns that the Russians had possession of the DNC emails. He passes word of this to others in the campaign. Because of a “mutual understanding,” no one calls the FBI.
Mid-May: Papadopoulos tells an Australian diplomat in London that the Russians have compromising emails on Clinton. The diplomat properly informs his superiors, who–unlike Trump campaign officials–recognizes his legal responsibilities under American law to notify U.S. authorities.
June 9: At a meeting at Trump Tower previewed for the campaign as “part of Russia and its government’s support for Mr. Trump,” Donald Trump Jr. listens as well-connected Russians offer damaging information about Clinton. Jared Kushner and Paul Manafort both say they left early, suggesting “awareness” of, or “willful blindness” to, crimes that were underway. Again, no one contacts the FBI.
Mid-June: Kushner—assuming control of the campaign’s digital operations— hires Cambridge Analytica, which coordinates with Wikileaks, suggesting a possible “mutual understanding” of what Wikileaks will do.
July 14: At the Republican National Convention, the Trump campaign deletes a plank in the party platform that condemns Russia for invading Ukraine, and rejects a proposal for increased sanctions, bolstering the case for the quid pro quo that is the crux of the case.
July 22: On the eve of the Democratic Convention, Wikileaks releases damaging Democratic emails received from the Russians, implicating Wikileaks in the criminal conspiracy.
July 27: In a speech, Trump says, “By the way, if they [Russians] hacked, they probably have her 33,000 emails. I hope they do.” Trump later said he was joking but it reinforces his “awareness” of an unlawful act.
August 21: Roger Stone, a longtime friend and adviser to Trump, shows knowledge of the conspiracy by tweeting, “Trust me, it will soon be Podesta’s time in the barrel. #CrookedHillary,” in reference to Clinton campaign chair John Podesta, and Stone admits having communicated with both Guccifer 2.0 and Wikileaks in July, all elements of the conspiracy.
October 7: Within hours of the release of the Access Hollywood tape, which dealt a serious blow to the Trump campaign, Wikileaks releases the first in a series of 60,000 emails belonging to Podesta. Wikileaks effectively acts as an arm of the Trump campaign in a “mutual understanding” to deflect attention away from the sex scandal.
December 29: Deputy National Security Adviser-designate K.T. McFarland emails a colleague about the aftermath of outgoing President Obama’s implementation of sanctions: “If there is a tit-for-tat escalation, Trump will have difficulty improving relations with Russia, which has just thrown USA election to him.” (emphasis added) The same day, Flynn tells Kislyak not to escalate because Trump is coming into office with a new, much friendlier policy, thereby fulfilling Trump’s end of the corrupt deal.
Even without knowing any of what Mueller has learned from the many witnesses he has secretly brought before the grand jury, this timeline—and the jury instructions that would accompany it at trial— already offer a strong roadmap for prosecutors. The conspiracy charges that arise from it will likely send some of Trump’s friends and relatives to jail. And they won’t look so good for the president, either, if presented next year at his impeachment trial in the Senate.