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Judy Ford Wason Center for Public Policy

Wason Center

November 21, 2018

Winter Is Coming, but the Russia Probe is Heating Up

Issue / National

President Trump frowning

Sixteen months into Robert Mueller’s investigation into Russian interference in the 2016 presidential election, Americans have learned about secret meetings, intercepted phone calls, overseas contacts, tax evasion, and fraud, lies to the FBI and congressional committees, hush payments, and witness tampering. There has been endless speculation over what constitutes obstruction of justice, the limits of presidential pardons, and whether sitting presidents can be subpoenaed or indicted. The Russia investigation has garnered dozens of indictments and turned key Trump campaign members into state’s witness. Developments over the past sixteen months have come in fits and starts, with some days producing multiple major developments. Collectively, the revelations from the investigation thus far paint a troubling portrait for the Trump Administration, who starting in January will lose their most important line of defense when the House of Representatives flips over to Democratic Party control.

The heart of the Mueller investigation deals with whether Trump campaign members or associates, including the candidate and his family, assisted Russia in their efforts to sabotage the Clinton campaign by spreading propaganda online via multiple social media outlets as well as by hacking into, stealing, and then strategically disseminating, DNC and Clinton campaign emails. In January 2017, the intelligence community concluded with “high confidence” that agents acting on behalf of the Russian government hacked into DNC computer servers and the personal email account of John Podesta, Clinton’s campaign chairman. In March of 2018, Mueller’s team released an indictment of 13 Russian nationals that laid out in detail their specific actions. The indictment left no doubt that Russia was behind the attacks, yet President Trump refused to accept the CIA’s assessment and stated that he believed Mr. Putin’s denial of involvement at the Helsinki Summit in July, provoking widespread criticism.

In addition to this central question, the mandate given to the Special Counsel allows investigation into any criminal matters that are uncovered that relate directly, or indirectly, to the Russia probe. Under this mandate, the Mueller team has uncovered and prosecuted several Trump campaign members for crimes ranging from making false statements to the FBI to tax evasion. Paul Manafort, Trump’s former campaign manager, and Richard Gates, who served as Manafort’s deputy campaign manager, were indicted in October of 2017 on multiple counts, including conspiracy against the United States, conspiracy to launder money, false statements, and failure to file reports of foreign financial accounts. Both Manafort and Gates initially pleaded not guilty. In February 2018 Gates abruptly changed his plea to guilty under acceptance of a plea deal offered by Mueller in exchange for his cooperation. Despite this deal struck with his former partner, Manafort refused to accept a deal for cooperation and went to trial facing a 13 count indictment for financial crimes committed during his work as an illegally unregistered foreign lobbyist. In September, Manafort was convicted of eight financial crimes and facing at least 8 years in prison as well as an additional trial for similar charges, entered into a plea agreement on the outstanding charges in which he offered “broad cooperation” to the Special Counsel. Manafort is scheduled to be sentenced in February of 2019. Most recently, federal prosecutors requested an additional 10 day delay in a schedule update regarding Manafort’s cooperation, arguing that the delay would provide significant insight into the value of the Manafort’s cooperation.

In addition to cooperation deals with Manafort and Gates, the Special Counsel also has cooperation agreements for other significant members of President Trump’s inner circle including General Michael Flynn, campaign adviser George Papadopoulos, attorney Alex van der Zwaan, and most notably, Michael Cohen, Trump’s longtime adviser and self-proclaimed “fixer.” Ostensibly, Cohen could not get Mueller to offer him a plea deal after he was indicted on multiple charges including tax evasion and campaign finance crimes which led him to take the highly unusual step of preemptively pleading guilty to all charges and in the process, implicating then-candidate Trump for involvement in an effort to pay off porn-actress Stormy Daniels to keep her from disclosing their affair in the closing weeks of the campaign. With his sentencing pending, Cohen has been cooperating with Mueller’s team since September and it has spent 50 hours meeting with federal prosecutors. Cohen’s cooperation carries the most implications for Donald Trump, as well as his family, because Cohen has been closely involved with Trump both during the campaign and for the first year and a half of Trump’s term, as well as for the past decade in terms of the Trump family business. As such, Cohen is uniquely positioned to answer the most pressing question of the Russia probe: did members of the president’s inner circle, or perhaps even Trump himself, conspire against Hillary Clinton’s campaign with a hostile foreign power?

In addition to these questions, the Mueller probe is speculated to include an investigation into possible efforts to obstruct the probe by President Trump. In May 2017, President Trump fired then FBI Director James Comey. President Trump initially claimed that he fired Comey for his handling of the probe into Clinton’s emails, but in an interview with Lester Holt of NBC News, appeared to admit Comey’s firing was over his handling of the Russia probe. Additionally, President Trump has twice ordered for Mueller to be fired, although he backed off when White House counsel officials threatened to quit. More recently, President Trump fired his Attorney General Jeff Sessions after publicly expressing frustration with Session’s decision to recuse himself from overseeing the investigation due to his involvement in the Trump campaign and because he omitted contact with Russia’s U.S. Ambassador Sergey Kislyak during his Senate confirmation hearings. Trump’s public statements regarding his frustrations seemed to suggest he wanted his attorney general to oversee the Russia probe in order to influence the probe in the president’s favor.

The day after the 2018 midterms, President Trump abruptly fired Attorney General Jeff Sessions and elevated Session’s chief of staff Matthew Whitaker to interim Attorney General. The move has provoked widespread criticism and speculation that Trump intentionally bypassed Deputy Attorney General Rod Rosenstein who has been overseeing the Russia probe since Session’s recusal. Like with Sessions, Trump has made several public statements, including tweets, lambasting Rosenstein for not reigning, in or ending, the Russia probe leading to speculation that he might move to fire him. The line of succession in the Department of Justice does not extend to the Attorney General’s Chief of Staff, which is not a Senate-confirmed position. Whitaker’s sudden and unprecedented elevation to interim Attorney General by bypassing the line of succession, is further complicated by his public statements asserting the Russia probe is overreaching and asserting that the probe has failed to produce evidence of Trump campaign involvement with Russia, a conclusion that has not been reached. In a CNN op-ed, Whitaker wrote that Mueller was overstepping his bounds and stated on television that the Attorney General has the power to decrease the special counsel’s budget “so low that the investigation grinds to almost a halt.” Whitaker has refused to recuse himself from overseeing the investigation and is now actively overseeing the probe.

The appointment of Whitaker as interim Attorney General comes as the Mueller investigation is in its final stages and just before additional indictments may be issued. Along with prosecution of any individuals found to be engaged with criminal actions a key component of the Russia probe comes with a final report is filed by Mueller. As the person overseeing the investigation, Whitaker not only has the power to deny the special counsel additional warrants and budgetary requests related to the probe, he will also have the ability to decide whether Mueller’s final report on the investigation will be released to Congress and/or to the public. However, the Russia investigation has largely moved far past the point where it might have been contained. In addition to his other legal woes, the president’s actions in office have left him exposed to potential charges relating to obstruction of justice. The firing of Comey and the public harassment of Sessions, Rosentein, and Mueller are likely included in the ongoing investigation.

Although the president declined the opportunity to sit for an interview with Mueller, after months of negotiation, the president has submitted written answers to some narrow questions directly related to the campaign issued by Mueller. Currently, there is a secret grand jury appeal being litigated under seal in federal court that some have speculated might be a summons for President Trump. Although the Supreme Court has ruled that a president must appear on a civil summons, the issue of whether a president is immune from a criminal summons has not been ligated and the general legal consensus is that a president cannot be indicted while in office. The secret case is more likely related to another major Trump campaign associate who has not been indicted, but who is widely speculated to be a target of the investigation, Roger Stone. The fact that Stone has not been contacted for an interview by Mueller’s team has led to speculation that Stone is suspected of serving as the liaison between the Trump campaign and Russia as well as speculation that he may be involved with the release of stolen emails by WikiLeaks. Stone continues to vehemently deny these allegations.

It is also possible that the secret filings relate to Donald Trump Jr. and/or Jared Kushner, who were revealed to have held an undisclosed meeting with a group of Russian nationals. Despite claims that the meeting involved only a discussion of the Magnitsky Act, emails sent between the Russian attendees and Trump Jr. and Kushner to set up the meeting clearly indicated the meeting was being organized because the Russians were offering damaging information on Hillary Clinton and wanted to offer their assistance in electing his father. After the meeting was disclosed and the names of attendees became public an effort was made to conceal the meeting to federal investigators including the misleading statement painting the meeting as a meeting on Russian adoptions reported to be personally dictated by President Trump while the group was flying home from the Group 20 meeting aboard Air Force One. That effort may implicate the president and others involved in writing the letter in obstruction of justice. To date, there have been no known legal actions from the Mueller team regarding the Trump Tower meeting and efforts to avoid its disclosure.

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