OPINION | JUDICIARY
February 17, 2018
Mueller indictments still miss the mark on Trump-Russia collusion
BY JONATHAN TURLEY, OPINION CONTRIBUTOR
Lewis Carroll once wrote in praise of adjectives, saying that “adjectives you can do anything with, but not verbs.” That is certainly true with the latest
indictments by special counsel
Robert Mueller of 13 Russians for interfering with the 2016 presidential election. For the White House, the entire report comes down to a single adjective. Let’s see if you can spot it: The Russian defendants “communicated with unwitting individuals associated with the Trump campaign.”
Despite a 37-page indictment with a long narrative on a coordinated Russian campaign of interference, the most newsworthy fact comes from the carefully placed adjective “unwitting.” It confirms that the special counsel has found no knowing coordination or collusion between these hackers and Trump officials. The indictment names 13 Russian nationals and three Russian entities in alleged interference in the 2016 presidential election. It describes a coordinated effort by Russians, including the shadowy Internet Research Agency, to wage “information warfare” against the United States.
The charges themselves are not particularly novel or exotic. They involve identity fraud, wire fraud and other conventional charges. However, the context is anything but conventional. This is the largest indictment of a foreign effort to interfere with our elections, and the clear import is that the hand of the Russian government was behind this effort. Moreover, it is clear that the Russians were acting to help
Donald Trumpand hurt
Hillary Clinton.
While the indictment is historic, it is hardly a surprise. Few people were questioning the Russian interference with and hacking of the election. Both Democratic and Republican leaders were in agreement on this fact, as were all of the administration’s top intelligence figures. The one hold-out seemed to be the president himself. He routinely referred to the “fake news” of the Russian investigation.
While Trump seemed to be focusing on the specific allegations of collusion by his campaign, he will now have a chance to make that distinction more clearly and concretely. This indictment is incredibly detailed and damning as to the effort of the Russians to interfere in the election and then hide their tracks once the FBI went into the field looking for the hackers.
That brings us back to “unwitting.” Not only did the indictment clearly say that no one in the Trump campaign was wittingly or knowingly involved with the Russians, it explains how the Russians used fake names and groups to hide their real identities. Deputy Attorney General
Rod Rosenstein gave a press conference and drove home that point, stating that there was no evidence of any knowing involvement by the Trump campaign, as well as no evidence that this effort impacted the election. Indeed, Rosenstein stated that there is “no allegation in this indictment that any American had any knowledge” of the Russian effort.
For over a year, some of us have been questioning the weekly “bombshells” announced on cable programs of criminal Russian collusion. Indeed, for months I asked for someone to point to a crime of collusion in the criminal code or the criminal evidence to support a criminal indictment if such a related charge is made. With each week, experts have given breathless accounts of the circle of collusion tightening on the Trump campaign.
Now, the special counsel and the deputy attorney general are saying that there is no evidence of knowing interaction of campaign staff with Russians interfering with the election. The paucity of such evidence follows a year of intensive investigation and the much heralded plea bargains with former National Security Adviser Michael Flynn and campaign adviser
George Papadopoulos and the expected plea with former campaign official Rick Gates. There is still no evidence of anyone “wittingly” or knowingly colluding with these Russians. Moreover, the indictment says that the Russian efforts began in 2014, long before the candidacy of Trump.
None of that has stopped the spin. CNN political director David Chalian insisted that nothing in the indictment actually says that the Trump campaign did nothing wrong. But prosecutors generally do not use indictments to affirmatively exonerate organizations. They focus on the matter under investigation. On the same panel, CNN legal analyst Carrie Cordero speculated that the Mueller team added this language “to give it political cover” to protect his investigation and allow it to continue without interference from the White House. There is also the slight possibility that this is an indictment which stated the facts required to be truthful to the court and that there is no evidence of collusion.
Of course, the absence of collusion would not end the Mueller investigation, and reports indicate the collusion probe is ongoing. Mueller has already charged various figures with collateral crimes. Moreover, even if there is no case for collusion, there could still be a case of obstruction. The irony would be hard to miss. For months, many of us have been baffled by the president’s obsession and personal actions in relation to the Russian investigation. The evidence against Trump or his campaign has remained entirely speculative and thin. Yet, he has repeatedly acted in ways that have fueled allegations of obstruction, even though the underlying case is manifestly weak.
If Mueller ultimately finds no collusion, it could not only clear Trump but could even lead him to consider the use of his pardon power for individuals like Flynn. It is doubtful that Flynn’s indictment would have been handed down but for the appointment of the special counsel. Again, the irony is crushing. Before Trump fired
James Comey as FBI director, his investigators reportedly decided that Flynn did not intentionally lie to them about his meeting with the Russians. Once Trump fired Comey, Flynn was a target of opportunity for the special prosecutors.
This all brings us back to “unwitting.” When this history is written, that adjective could well stand out as the turning point in the Russian investigation. The remaining question could be whether Trump wittingly obstructed an investigation into unwitting contacts with the Russians.
Jonathan Turley is the Shapiro Professor of Public Interest Law
