The Mueller Report Unpacked — Part 2: Making Sense of the SCO’s Conspiracy Findings

By Tracy Weiss, Co-chair, Foreign Policy Task Force, WNDC Committee on Public Policy and Political Action

OVERVIEW

As detailed in Part 1 of this WNDC Special Report, the Special Counsel’s Office (SCO)1 found that Russia conducted a multi-pronged attack—designed to benefit candidate Trump and hurt candidate Clinton—against the 2016 Election. Specifically, Russia’s IRA operated a far-reaching2 pro-Trump and anti-Clinton social media and crowd-gathering operation. In addition, the Russian GRU: (i) hacked the servers and/or personal e-mail accounts of many Democratic entities and individuals; (ii) publicly and strategically released the hacked materials most likely to damage the Clinton Campaign; and, (iii) conducted cyber intrusions against individuals and entities (such as state boards of elections, secretaries of state, county governments, election-related hardware and software companies, and people who worked for these entities) involved in the administration of U.S. elections.3

As part of its investigation, the SCO examined whether any member of the Trump Campaign criminally conspired with the Russian government to attack the 2016 Election. The SCO ultimately found that “while the investigation identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to support criminal [conspiracy] charges.”4 Importantly, though, the SCO specified that just because its investigation “did not establish” particular facts beyond a reasonable doubt to charge members of the Trump Campaign with the crime of conspiracy, it “does not mean there was no evidence of those facts.”5

THE SCO FOUND EVIDENCE THAT MEMBERS OF THE TRUMP CAMPAIGN HAD AT LEAST 140 CONTACTS WITH RUSSIANS AND/OR WIKILEAKS

The Report sets forth significant evidence establishing that numerous links existed between members of the Trump Campaign, Russians (including Russian government officials, oligarchs, and members of the IRA), and/or WikiLeaks. In fact, a recent New York Times (NYT) article entitled “Mueller Report Shows Depth of Connections Between Trump Campaign and Russians,” concludes that “Trump and 18 of his associates had at least 140 contacts with Russian nationals and WikiLeaks, or their intermediaries, during the 2016 [presidential] campaign and presidential transition.”6 While an exhaustive summary of each of these 140 contacts exceeds the scope of this article, some key examples follow:

1) Members of the Trump Campaign Promoted IRA and GRU Propaganda, Directly Communicated with WikiLeaks, and/or Disseminated Links to the Hacked Materials.

· While the SCO “did not find evidence that any U.S. persons knowingly or intentionally coordinated with the IRA’s interference operations,”7 it found multiple examples of U.S persons who unknowingly promoted or assisted the IRA’s attacks on the 2016 Election.8 The SCO separately identified “two different forms of connections between the IRA and members of the Trump Campaign,” and no similar connections between the IRA and members of the Clinton Campaign.9 First, members and surrogates of the Trump Campaign—including but not limited to Donald Trump, Jr. (Trump Jr.), Eric Trump, Kellyanne Conway, Michael Flynn (Flynn), Brad Parscale, and even candidate Trump—promoted10 pro-Trump and/or anti-Clinton content published by the IRA.11 Second, “IRA employees represented themselves as U.S. persons to communicate with members of the Trump Campaign in an effort to seek assistance and coordination on IRA-organized political rallies inside the United States.”12 Notably, Attorney General William Barr’s (AG Barr) office redacted for “personal privacy” purposes key information under the section titled “Targeting and Recruitment of U.S. Persons,” thereby hiding the names of those Americans who may have unwittingly aided Russia’s attack on the 2016 Election.13

· The SCO investigation also found that the GRU directly communicated with a close Trump ally14 through Guccifer 2.0 on topics ranging from the hacked materials, including “info on the turnout model for the democrats entire presidential campaign[,]” to offers of further assistance to the Trump Campaign.15 AG Barr heavily redacted sections in the Report addressing these communications, as well as the SCO’s related charging and declination decisions.16

· AG Barr also heavily redacted sections in the Report addressing the Trump Campaign’s contacts with and about WikiLeaks and the SCO’s related charging and declination decisions.17 Despite these redactions, however, it is clear that: members of the Trump Campaign “showed interest in WikiLeaks’s releases of documents and welcomed their potential to damage candidate Clinton”18; and, the Trump Campaign had advance knowledge of and made plans around at least some of WikiLeaks’ releases of the stolen DNC, DCCC, and Podesta materials.19 In addition, the SCO established that Trump Jr. not only had direct electronic communications with WikiLeaks during the 2016 presidential campaign period (2016 Campaign) but also publicly retweeted and/or disseminated multiple WikiLeaks-related links during that time.20

2) Members of the Trump Campaign Welcomed Russians’ Offers of “Dirt” on Clinton

· Multiple members of the Trump Campaign—including Trump Jr.,21 Jared Kushner (Kushner),22 and foreign policy advisor George Papadopoulos (Papadopoulos),23—welcomed the opportunity to receive “dirt” on Clinton from a variety of Russians with ties to Putin as “part of Russia and its government’s support for [candidate] Trump.”24

3) Members of the Trump Campaign Gave Internal Trump Campaign Polling Data and Other Confidential Strategic Campaign Information to Russians.

· On several occasions, members of the Trump Campaign—including Manafort and Deputy Campaign Manager Rick Gates (Gates)—provided Trump Campaign updates and information to a Russian national and longtime Manafort employee with suspected ties to Russian intelligence named Konstantin Kilimnik (Kilimnik).25 The information that Manafort and Gates repeatedly shared with Kilimnik throughout the 2016 Campaign included internal Trump Campaign polling data, which Manafort expected Kilimnik to share with both Ukrainian oligarchs and Russian oligarchs closely aligned with Putin like Oleg Deripaska.26 Ultimately, the SCO “could not reliably determine Manafort’s purpose in sharing internal polling data with Kilimnik during the campaign period.”27

· Manafort also personally met with Kilimnik twice in the U.S. during the 2016 Campaign.28 At these meetings, Manafort conveyed to Kilimnik additional Trump Campaign information—including his strategy for Trump to win the election and identification of Michigan, Wisconsin, Pennsylvania, and Minnesota as the key “battleground” states.29

4) Several Members of the Trump Campaign and Transition Team Sought to Set Up Meetings with or Obtain Input from Individuals with Ties to the Russian Government.

· Several members of the Trump Campaign—including Papadopoulos (with the knowledge and/or support of candidate Trump, Manafort, then Senator Jeff Sessions (Sessions), senior policy advisor Stephen Miller, Sam Clovis, and Corey Lewandowski)30—collectively spent months over the 2016 Campaign trying to organize a meeting between Trump and Putin and/or members of the Trump Campaign and Russian government officials to benefit candidate Trump.31

· Several senior members of the Trump Campaign—including Kushner and Sessions—sought specific foreign policy input and instruction, as well as introductions to foreign policy professionals, from a Washington, D.C. think-tank with “unparalleled access to Russian officials and politicians.”32

· Immediately after Trump was elected President on November 8, 2016, persons connected to the Russian government—officials and prominent Russian businessmen—began contacting several members of the Trump Campaign and president-elect Trump’s transition team (Transition Team) through a variety of channels.33 Per the Report, “[t]he most senior levels of the Russian government encouraged these efforts.”34

5) Several Members of the Trump Campaign and Transition Team Met and/or Directly Communicated with Individuals with Ties to the Russian Government.

· Between 2013 and at least June of 2016, the Trump Organization—including Trump, Trump Jr., Ivanka Trump, and other employees—explored a licensing deal with several Russian counterparties with ties to Putin involving the construction of a mixed-use Trump-branded property in Moscow (Trump Tower Moscow).35 Pursuant to the intended terms of the Trump Tower Moscow deal, which were finalized after Trump announced his candidacy for President,36 “the Trump Organization stood to earn substantial sums over the lifetime of the project, without assuming significant liabilities or financing commitments.”37 Throughout the 2016 Campaign, candidate Trump repeatedly lied to the American public about his organization’s ongoing negotiations with prominent Russians and the Russian government to create a Trump Tower Moscow.

· During Manafort’s multiple meetings with Kilimnik throughout the campaign, Kilimnik pushed a “backdoor” plan for Russia to control eastern Ukraine and in subsequent communications stressed to Manafort that his plan’s success would require Trump’s support.38 Manafort and Kilimnik discussed this plan on at least four occasions between 2016 and 2018.39 But the SCO failed to uncover evidence—possibly due to Manafort’s lies and use of encrypted messaging during the 2016 Campaign—that established Manafort had told other members of the Trump Campaign about Kilimnik’s plan.40

· Multiple members of the Trump Campaign and Transition Team—including Sessions, Kushner, and Flynn—met with the Russian Ambassador to the U.S., Sergei Kislyak (Kislyak), and/or Russian foreign policy advisor Yuri Ushakov.41 During one of their first meetings at Trump Tower New York on November 30, 2016, “Kushner asked Kislyak if they could communicate using secure facilities at the Russian Embassy.”42

· A couple of weeks later, on December 13, 2016, Kushner met with Sergey Gorkov (Gorkov), the head of the U.S.-sanctioned Russian-government-owned bank Vnesheconombank (VEB).43 Ultimately, inconsistencies arose between Kushner’s and Gorkov’s accounts of that meeting; the SCO was unable to resolve those conflicts.44

· And Flynn, in his role as incoming National Security Advisor, served as the Transition Team’s “primary conduit for communications with the Russian Ambassador [Kislyak] and dealt with Russia on two sensitive matters during the transition period: a United Nations Security Council vote [on Israeli settlements] and the Russian government’s reaction to the U.S.’s imposition of sanctions for Russian interference in the 2016 [E]lection.”45 With regard to the latter, Flynn asked Kislyak “not to escalate the situation in response to U.S. sanctions imposed on December 29, 2016, and Kislyak later reported to Flynn that Russia acceded to that request.”46 Flynn subsequently pleaded guilty to lying to the FBI about his communications with Kislyak and cooperated with the SCO’s investigation.47

SCO FINDING ON CRIMINAL CONSPIRACY: THE SCO NEITHER CHARGED NOR EXONERATED MEMBERS OF THE TRUMP CAMPAIGN

As detailed above, the SCO’s investigation established that numerous suspicious contacts occurred between members of the Trump Campaign and Russians with ties to Putin throughout the 2016 Campaign and transition period, including but not limited to: “business connections[;] offers of assistance [from Russians] to the [Trump] Campaign[;] invitations for candidate Trump and Putin to meet in person[;] invitations for [Trump] Campaign officials and representatives of the Russian government to meet[;] and policy positions seeking improved U.S.-Russian relations.”48 The SCO’s investigation also established “that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome . . . .”49 The SCO’s investigation further established “that the [Trump] Campaign expected it would benefit electorally from information stolen and released through Russian efforts . . . .”50 Nonetheless, the SCO ultimately concluded that “the evidence was not sufficient to support criminal [conspiracy] charges” 51 beyond a reasonable doubt.52

UNDERSTANDING THE SCO’S DECLINATION DECISIONS

Given the number and nature of contacts between members of the Trump Campaign, Russians with ties to Putin, and/or WikiLeaks, the SCO’s decision not to charge any Americans with criminal conspiracy perplexed many people. Yet, as detailed in the Report, that decision proves less surprising in light of the strict standards adopted by the SCO, high burden of proof required to bring charges in this matter, and the many investigatory obstacles faced by the SCO.

In the practice of law, claims have core elements (generally set by statute and/or case law) that a party must establish to the given legal standard in order to successfully bring those claims. Here, in order for the SCO to have successfully brought a charge of conspiracy against any member of the Trump Campaign, the SCO would have had to establish each element of that crime beyond a reasonable doubt—the highest legal standard of proof.

While the SCO neither provided a legal definition of conspiracy nor identified all of the core legal elements it deemed necessary to establish the crime, it did specify that its conspiracy analysis included the factual question of whether members of the Trump Campaign “coordinated” with the Russian government in its attack on the 2016 Election.53 The SCO then very narrowly defined “coordination” to mean an express or implied agreement between any member of the Trump Campaign and the Russian government to attack the 2016 Election.54 Notably, the SCO “applied the term coordination in that [narrow] sense when stating in the [R]eport that the investigation did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities.”55 Indeed, in multiple instances, the SCO declined to bring conspiracy charges because its investigation did not establish that the suspicious contacts they uncovered “amounted to an agreement to commit any substantive violation of federal criminal law.”56

The SCO’s investigation also found insufficient evidence to establish “the knowledge or criminal purpose required”57 under several of the contemplated federal conspiracy statutes.58 For example, the SCO declined to charge any member of the Trump Campaign with conspiring to violate campaign-finance laws, in part, because the SCO “did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted ‘willfully,’ i.e., with general knowledge of the illegality of their conduct.”59

Moreover, in its Report, the SCO also documented the many investigatory obstacles it encountered. Specifically, some members of the Trump Campaign and other key witnesses “materially”60 hindered the SCO’s investigation from obtaining key evidence by, among other tactics: invoking the Fifth Amendment; refusing to testify and/or produce relevant documents; providing false or incomplete testimony; erasing communications; and/or residing abroad.61 Indeed, according to the SCO, “although the evidence of contacts between [Trump] Campaign officials and Russia-affiliated individuals may not have been sufficient to . . . sustain criminal charges, several U.S. persons connected to the [Trump] Campaign made false statements about those contacts and took other steps to obstruct the [Special Counsel] Office’s investigation and those of Congress.”62 Accordingly, the SCO concluded that “while this [R]eport embodies factual and legal determinations that the [Special Counsel’s] Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the [Special Counsel’s] Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the [R]eport.”63 Phrased differently, some members of the Trump Campaign may have successfully obstructed the SCO from finding sufficient admissible evidence to charge them with criminal conspiracy.

UNANSWERED QUESTIONS REGARDING THE TRUMP CAMPAIGN’S LINKS TO RUSSIA AND OTHER FOREIGN GOVERNMENTS

Given the variety of obstructive techniques employed against the SCO’s investigation, many questions persist regarding whether any member of the Trump Campaign cooperated and/or conspired with Russia in its attack on the 2016 Election. Thus, Congress and the media should continue to investigate the most suspicious contacts between members of the Trump Campaign, Russians, and/or WikiLeaks to fill in the “gaps” identified by the SCO.

Further, Volume I of the Report never discussed Trump’s tax returns or other financial records; thus, if the SCO did “follow the money,” it did not share any of its related findings. A recent NYT article entitled “Deutsche Bank Staff Saw Suspicious Activity in Trump and Kushner Accounts,” found that “[a]nti-money-laundering specialists at Deutsche Bank recommended in 2016 and 2017 that multiple transactions involving legal entities controlled by Donald J. Trump and his son-in-law, Jared Kushner, be reported [via suspicious activity reports (SARs)] to a federal financial-crimes watchdog.”64 Some of these flagged “suspicious transactions” included findings that “money had moved from Kushner Companies to Russian individuals.”65 But Deutsche Bank executives in the private bank, who had lent billions of dollars to Trump and Kushner companies, opted not to file the SARs with the government.66

Yet another NYT article, entitled “Trump Jr. and Other Aides Met with Gulf Emissary Offering Help to Win [2016] Election,” raised numerous questions about suspicious contacts between members of the Trump Campaign or Transition Team with persons with close ties to the governments of not only Russia but also the United Arab Emirates (UAE) and Saudi Arabia.67 The article discussed more Trump Tower meetings involving additional foreign offers of “social media manipulation efforts to help elect Mr. Trump”; it also noted that a Trump loyalist made a large (estimated $2 million) payment to one such foreign offeror after Trump’s inauguration.68 While the SCO apparently investigated possible pro-Trump 2016 Election “interference” by the UAE, Saudi Arabia, and other foreign governments beyond Russia,69 it did not specifically address those findings in the Report.

Based on the above, Congress and the media must investigate and reveal to the American public: (1) whether any foreign government—in addition to Russia—“interfered” in the 2016 Election to help elect Trump; (2) whether Trump or any member of the Trump Campaign has been financially leveraged or otherwise compromised by Russia, Saudi Arabia, the UAE or any other foreign government, and if so, whether they have acted for that country’s benefit—even if to America’s detriment; and, (3) if yes to 1 or 2, who, how and to what effect.

COMING NEXT IN PART 3: THE REPORT’S OBSTRUCTION SECTION UNPACKED.