An odd, two-tiered narrative has long unfolded around the Russia scandal. In much media commentary, there’s been a deeply baked-in skepticism that the Trump campaign could possibly have conspired with Russian interference in the 2016 election — even as more and more evidence of that “collusion” has surfaced.
Media figures sometimes still say “there’s no evidence of collusion,” even though we already know, among other things, that top Trump campaign officials met with Russians in the eager hope of receiving dirt on Hillary Clinton gathered by the Russian government. We still don’t know whether the “collusion” being established amounts to criminal conspiracy, but we do know that “collusion” happened.
On Friday morning, the “no collusion” narrative took yet another big blow, with the news that special counsel Robert S. Mueller III has indicted longtime Trump confidant Roger Stone. Stone has been charged with obstruction of justice, lying to Congress and witness tampering.
I want to focus on one particular nugget in the indictment that may add substantially to our understanding of what this conspiracy might — repeat, might — look like.
After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.
The passive voice there is notable. Someone “directed” an unnamed “senior Trump campaign official” to contact Stone about any releases forthcoming from WikiLeaks that could damage Clinton.
What’s important there is the suggestion that Stone, at the urging of a senior Trump campaign official, sought to learn of future dumps of then-unreleased information coming from WikiLeaks.
The larger timeline is key. At this point, top Trump campaign officials already knew that Russia was trying to interfere in the election on Trump’s behalf.
As early as June 3, 2016, Donald Trump Jr. had been informed that the Russian government had gathered dirt on Hillary Clinton. Trump Jr. and other top officials met with Russians in the full expectation of receiving this dirt on June 9, 2016.
What’s more, at that point there were also already clear public indications that Russia was behind the hack into the DNC’s emails. It became publicly known on June 14, 2016, that Russian hackers were the perpetrators, from reporting in The Post.
What this means is that the Trump campaign allegedly sought to learn more about what information WikiLeaks had gathered that was not publicly known about but might still be coming, in the full knowledge that Russia was already trying to swing the election. This was allegedly at the decree of someone who had the power to “direct” an unnamed senior Trump campaign official to pursue that information.
And Stone allegedly complied, by continuing to update the campaign “thereafter” on “potential future releases.” (Emphasis mine.)
“The indictment confirms that Stone was acting at various points as an agent of the Trump campaign in seeking and passing back information about both the timing and substance of the WikiLeaks-Russia cache of stolen emails,” Bob Bauer, the White House counsel under former president Barack Obama, told me. “It states that someone, possibly Donald Trump, ‘directed’ a senior campaign official to initiate this relationship to learn about future releases.”
The indictment also goes into some detail on what sort of information Stone allegedly learned of in advance of its release — information the Trump campaign may have acted on.
For instance, the indictment says that in early August 2016, Stone received a tip from “Person 1,” an unnamed political commentator who was in touch with him throughout the campaign, that WikiLeaks was planning a “very damaging” email dump that apparently would raise serious doubts about Clinton’s health. That person told Stone it would be a good idea to float the idea that Clinton was unwell, because this would be the “focus” of the “next dump.”
It’s worth noting that the Trump campaign did then raise doubts about Clinton’s health. In mid-August, Trump gave a speech in which he suggested that Clinton “lacks the mental and physical stamina” to take on the Islamic State. Just before that, he had noted that Clinton’s campaign appearances were very short and remarked that she should “go back home and go to sleep.”
What’s the legal significance of all this? As Bauer and New York University law professor Ryan Goodman have written, if Mueller believes Stone was “acting on behalf of the Trump campaign” in seeking advance knowledge of coming dumps of information stolen by Russia to interfere in the election, it could pave the way for more criminal charges:
Mueller can charge Trump Campaign associates and the campaign itself for violations of federal campaign finance law either directly under the Federal Election Campaign Act (FECA) or as part of a conspiracy to defraud the United States by obstructing the capacity of the Federal Election Commission to enforce the FECA. …
The Trump campaign could not lawfully coordinate its political communications with Wikileaks without running afoul of federal campaign finance laws. As a foreign national, WikiLeaks may not provide anything of value to an America political campaign, and Americans could not knowingly and substantially assist Wikileaks’ illegal electioneering activity. The prohibition extends to solicitations of this campaign support by any agents of the Trump campaign.
In this context, Bauer and Goodman wrote, this signals potential “legal jeopardy” for any Americans “who knowingly participated” in a “general conspiracy” with WikiLeaks. The new indictment of Stone, at a minimum, adds to what this conspiracy might look like.
That said, Mueller did not charge Stone with anything along these lines. Why not? Former federal prosecutor Renato Mariotti suggests one explanation: The threshold here would be to prove beyond a reasonable doubt that Stone and someone at WikiLeaks agreed in advance to conspire to disseminate the stolen materials in violation of U.S. law.
If Stone had merely received advance knowledge that these materials were coming, that wouldn’t suffice. As Mariotti notes, Mueller may be confining the charges he’s bringing to ones he believes he can prove.
Of course, as Goodman points out to me, Mueller may still be waiting to bring the conspiracy charges later. “If Mueller has the goods on the Trump Campaign and the president himself being involved in a criminal conspiracy, it would be wise not to reveal any of those aspects now,” Goodman notes.
So we can’t yet know the full legal significance of this latest news. But it’s obvious the notion there was “NO COLLUSION!” is becoming tougher and tougher to sustain.
Update: This post originally referenced Stephen K. Bannon as the unnamed senior Trump campaign official who was directed to contact Stone. But that is inaccurate, so I’ve edited the post to correct -- apologies for the error. We still don’t know the official’s identity, but it will be interesting to learn.