It wasn’t difficult to predict the White House reaction to the Roger Stone indictment. The president tweeted , once again, that there was “NO COLLUSION,” and White House spokesperson Sarah Sanders claimed the indictment has “nothing to do with the president.” As special counsel Robert S. Mueller III moves further into Trump’s inner circle, these rote claims have become more punchline than actual defense. There’s evidence of collusion everywhere, and it has everything to do with the president. But what we still don’t know is whether the collusion rose to the level of a criminal conspiracy.
Stone was charged with seven counts of obstruction of justice, lying to Congress and witness tampering. The indictment alleges that he criminally concealed the extent of his contacts with WikiLeaks during the months leading up to the 2016 presidential election, when it was releasing thousands of stolen Democratic emails in an effort to damage Hillary Clinton. Stone had sought to downplay his connection to WikiLeaks, but the indictment portrays him as actively working to gather information about upcoming releases of the stolen emails. Most significant, the indictment makes it clear Stone wasn’t just freelancing: He was working on behalf of the Trump campaign.
Before this indictment, it was at least possible for the president’s campaign to claim it was merely the unwitting beneficiary of the WikiLeaks document dumps. But now Mueller has alleged that “multiple individuals involved in the Trump Campaign” were in repeated contact with Stone, seeking to gather advance intelligence about WikiLeaks’s plans. And in a much-noted use of the passive voice, the indictment alleges “a senior Trump Campaign official was directed to contact” Stone to find out what other damaging information about Clinton might be coming. This raises the enticing question of whether the person doing that directing was the president himself, a question that Sanders refused to answer Friday.
But we still don’t know the criminal implications, if any, for those in the campaign who were involved. Even if Trump himself did direct a senior campaign official to tell Stone to learn more about WikiLeaks’s plans, that alone is not criminal. Suppose I get wind that a group of people is planning to rob a bank and ask an intermediary to try to learn more about the group’s plans. If I get the information, it doesn’t make me guilty of a conspiracy to rob the bank, because I have not joined the agreement to commit the crime.
The indictment does not allege any kind of agreement or coordination between Stone or the campaign and WikiLeaks. It portrays the campaign as primarily seeking information about actions that WikiLeaks was already planning. If that’s all it was, learning that information and failing to disclose it is deplorable but likely not criminal.
If Mueller had a legal theory and evidence that made Stone’s contacts with WikiLeaks on behalf of the campaign a crime, it’s not clear why he wouldn’t charge it at this point. It’s possible he has some tactical reason for holding back. But the allegations are certainly no longer a secret, and it seems unlikely that Mueller is relying on someone with Stone’s credibility issues to cooperate and break the case wide open.
There have always been at least two possible end games for the Mueller investigation. He could uncover evidence of a widespread criminal conspiracy between the Trump campaign and Russians to influence the election. Or he could conclude that the campaign’s numerous documented interactions with Russians seeking to help Trump win were not criminal, but people close to Trump lied to cover up those interactions because revealing them would have been politically devastating.
Stone’s indictment falls into the coverup category. Mueller may have evidence of the broader conspiracy, and more charges may well be coming. But every case like Stone’s, or those against former campaign manager Paul Manafort, that is filed without charging a conspiracy with the Russians makes it seem more likely that criminal charges brought by the special counsel will end up being primarily about the coverups.
That doesn’t mean the campaign’s behavior wasn’t reprehensible. The best case scenario concerning WikiLeaks is that the Trump campaign, having learned that emails stolen from its opponent by a hostile foreign power were about to be released, did not alert the authorities or disavow that act but eagerly and secretly accepted the help. Even if that ends up not amounting to a criminal conspiracy, it should already be an enormous political scandal.
In a text message quoted in the indictment, Stone allegedly told a witness who was being asked to testify before Congress: “Stonewall it. Plead the fifth. Anything to save the plan. . . . Richard Nixon.” The reference to the 37th president, who was Stone’s political idol and who was brought down by a criminal coverup, may prove to be more than a little ironic.