Mueller testimony an opportunity to explore evidence of key Trump-Russia conspiracies

In particular, two elements of the investigation into Russian interference during the 2016 election have not received much attention.
Senate Intelligence Committee Holds Hearing On Russian Election Intervention
Robert Mueller leaves the Capitol Building after a meeting with the Senate Judiciary Committee on June 20, 2017.Zach Gibson / Bloomberg via Getty Images file
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By Nick Akerman, former assistant special Watergate prosecutor

After a weeklong delay, special counsel Robert Mueller is set to testify on Wednesday before Congress. His much-hyped testimony is unlikely to include anything outside his 448-page report. But within those hundreds of pages are highly critical facts that Congress now has an opportunity to highlight for the public.

In particular, two elements of the investigation into Russian interference during the 2016 election have not received much attention. The first is the Feb. 16, 2018, conspiracy indictment against 13 Russian operatives and two Russian companies for targeting “tens of millions of U.S. persons” through social media. These efforts were designed to specifically target voters in key states in order to suppress the vote for Hillary Clinton and enhance voter turnout for Trump. The second key piece of the report relates to the additional July 13, 2018 conspiracy indictment against 12 Russians who, beginning in March 2016, hacked into the computers and email accounts belonging to the Democratic National Committee and Clinton’s campaign manager. They later disseminated the stolen documents throughout key periods of the 2016 presidential campaign.

It is equally important to understand why Mueller ultimately was not able to file charges against any alleged American participants.

It is important for the public to know the extent of the evidence Mueller uncovered concerning Americans who may have participated in these two criminal conspiracies. It is equally important to understand why Mueller ultimately was not able to file charges against any alleged American participants. Mueller’s decision not to bring charges does not mean Americans were not involved in these conspiracies — and should not be used to obscure evidence tending to show that Americans in fact may have participated in these criminal conspiracies.

To review, the key witness to the social media conspiracy was Paul Manafort, Trump’s former campaign manager. The Mueller report details what the Mueller team learned from Rick Gates, Manafort’s deputy. Gates revealed that Manafort had instructed him on a regular basis over the course of the campaign to provide to Manafort’s business associate and reputed Russian intelligence agent, Konstantin Kilimnik, the campaign’s internal polling data. This polling data was not simply a tally of which candidate was ahead in the presidential race but instead was highly granular data showing where each candidate stood with various demographic groups in key geographical areas in battleground states.

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While the report states that “the Office could not reliably determine Manafort’s purpose in sharing internal polling data with Kilimnik during the campaign period,” and the special counsel “did not identify evidence of a connection between Manafort’s sharing polling data and Russia’s interference in the election,” the polling data was precisely the type of information the Russians needed to micro target the voters in states instrumental to Trump’s narrow electoral victory.

According to Gates, one such discussion between Manafort and Kilimnik about the “Campaign’s messaging and its internal data” was in the context of Manafort identifying the battleground states of Michigan, Wisconsin and Pennsylvania — three states Trump won by a mere 77,000 votes to give him the sufficient electoral votes to win the presidency.

At various points, the report explains why Mueller was unable to connect the polling data to the Russian social media conspiracy. The report plainly states that Manafort lied to Mueller’s team about this polling data and “did not acknowledge instructing Gates to send Kilimnick internal data.” Indeed, federal District Court Judge Amy Berman Jackson, in ruling that Manafort had breached his cooperation agreement with the prosecutors, specifically found that Manafort had lied about this polling data.

As Mueller pointed out at the beginning of the report, when certain individuals “agreed to be interviewed, they provided information that was false or incomplete.” In addition, Mueller was not able to access all of Manafort’s electronic communications. Common sense dictates that the only reason Manafort had directed Gates to provide Kilimnik with the polling data was to further the social media conspiracy. However, Manafort’s stonewalling resulted in a lack of sufficient proof — beyond a reasonable doubt — connecting Manafort and others to that conspiracy. (Mueller was able to connect the 13 Russian intelligence operatives.)

As for the hacking and dissemination of stolen documents, the report reveals two nuggets that suggest there was evidence against Americans who willingly and knowingly received the stolen information to use in the campaign or may have been involved in the hacking.

The first clue is in a footnote on page 176 of the first volume of the report. The section is heavily redacted and appears primarily to relate to Roger Stone and others. But the footnote states: “The Office also considered, but ruled out, charges on the theory that the post-hacking sharing and dissemination of emails could constitute trafficking in or receipt of stolen property under the National Stolen Property Act.”

The footnote goes on to explain that the reason charges were ruled out is because these two criminal statutes under the National Stolen Property Act relate only to the theft of tangible property, not intangible computer data. In other words, Mueller felt he could not charge anyone at least in part because our federal criminal statutes are antiquated and do not account for modern computer technology. This footnote clearly raises the possibility that there was collusion between the Trump campaign and the Russians — even if this collusion did not violate a criminal statute. Instead of ignoring such an inference, Congress must remedy whatever loopholes exist in current criminal law by passing robust statutes that deal more expansively with new computer technology.

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The second nugget is on page 179 in the first volume. Here the report reveals that Mueller’s team considered charging someone or multiple persons under the federal computer hacking statute. This is the same statute that was used against the 12 Russian intelligence operatives who hacked into the Democratic National Committee. The report does not name the individual(s) in question but concludes that the “office determined that prosecution of this potential violation was not warranted.” Such a conclusion only means that the Mueller team again determined there was some evidence — but not sufficient evidence to determine guilt beyond a reasonable doubt. Such a standard, it should be pointed out, does not bind Congress when considering impeachment proceedings or whether the executive should be removed from office.

Significantly, the report also acknowledges that the Mueller team’s efforts to obtain sufficient admissible proof were stymied by those they investigated. The report, without naming names, states that “some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity.” This sounds like prosecutor speak for individuals too important to justify immunity. The report also states that “some of the individuals we interviewed or whose conduct we investigated — including some associated with the Trump campaign — deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records.”

Of course, Mueller was also operating at a disadvantage since many relevant witnesses and documents were in Russia and beyond the team’s reach. This means that on top of uncooperative witnesses and obstruction efforts, there is plenty of evidence that was most likely never collected. Thus, the report concluded that “the 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 report.”

On Wednesday, the House Judiciary Committee has the opportunity to potentially uncover additional facts, especially if its members focus on these areas of the report that have mostly evaded public scrutiny so far. As a Democratic staffer on the Judiciary Committee told NBC News: "There is truly shocking evidence of criminal misconduct by the president — not once but again and again and again — that would result in any other American being criminally charged in a multiple count indictment."

The bottom line is that no one should assume that the investigation into Russian interference is behind us. Mueller provided a wealth of documentation that shows time and time again there very well could have been criminal activity involving Americans — he just could not prove it beyond a reasonable doubt. That is a necessary legal standard to convict an individual of a criminal statute, but it is not the one that needs to be used when evaluating the extent of corruption currently afflicting the Trump administration.