Blog Ipsa Loquitur

Published on under Leave No Stone Unindicted

The federal grand jury convened by Special Counsel Bob Mueller indicted Roger Stone last week. Stone, you’ll recall, is President Trump’s longest-serving political advisor who never officially worked for the Trump campaign because he likes to operate in legal gray areas. You may also recall that we’ve known since Mueller’s July 2018 indictment of Russian spies that Roger Stone is in serious legal jeopardy, because the Special Counsel doesn’t typically quote Twitter Direct Messages unless the parties were into some shady stuff.

Here we are six months later, and the other shoe has dropped. It’s not as bad as I was expecting, but the indictment is still serious: Stone’s charged with one count of obstructing a government proceeding, five counts of making false statements, and one count of witness tampering. If convicted on all counts, he could spend upwards of five years in prison, although he’s more likely to receive a sentence of three to four years. Stone’s younger than Manafort and faces a fraction of the sentence, so we’re not in “dying in a prison cell” territory yet. I wouldn’t bet on Stone flipping against anyone.

The indictment

Right off the bat, the charges are interesting because they relate to the coverup, not the collusion proper. Stone has been indicted for withholding records from Congressional investigators, lying (over and over) to Congress, and tampering with a witness testifying before Congress. Honestly, this indictment is pretty straightforward for the most part. When Stone is tampering with a witness by encouraging him to lie, he quotes Richard Nixon and the movie The Godfather Part II. When that doesn’t work, Stone just starts threatening bodily harm to the witness and his little dog, too. It’s amusing that Stone put all these crimes in writing, but there’s no cool counterintelligence flexing going on here.

That’s not to say it’s boring, though. Like the July 2018 indictment of Russian spies, this indictment offers the briefest glimpses of Stone’s and the Trump Campaign’s conduct (i.e. the collusion). The most tantalizing of these pieces in the indictment is how a Senior Trump Campaign Official was directed in July 2016 to contact Stone about Wikileaks and stolen emails. It’s unclear who on the Trump campaign was senior enough to direct a Senior Trump Campaign Official to contact Stone, but it’s a short list. It should go without saying that whoever that person is is in a lot of trouble. Especially if that person was senior enough to have been in the June 2016 Trump Tower meeting and knew the Russian government was using Wikileaks to disseminate stolen emails.

But fundamentally, this indictment alleges a coverup, not actual collusion. There are a couple of possibilities here:

  1. Bob Mueller isn’t employing any particular strategy here, he’s just indicting all the criminal conduct that comes across his desk. The fact that Stone’s been indicted for lying about his actions but not for The Collusion proves there was no collusion. The legal aphorism “the coverup is worse than the crime” becomes the 28th amendment to the U.S. Constitution.
  2. Bob Mueller, who ran the FBI for twelve years and held a variety of other senior roles in the Department of Justice for roughly another decade, has a strategy for running what might be the single most consequential FBI investigation in United States history.

it’s time for some game theory

I’m being characteristically glib with the first option. It is actually entirely possible that for all the huge red flags and all the circumstantial evidence, no actual crimes were committed by the Trump campaign during the 2016 election. After the election, those campaign officials lied about their sketchy-but-legal behavior; said lies are the only crimes.

As regards the second option, I can’t read Mueller’s mind. But I can point out that defendants have a right to see the evidence against them. Mueller’s been burned by this already; the very first Russian entity he indicted was Concord Management, which employed Russian private citizens to run social media disinformation campaigns interfering in the 2016 U.S. election. After the Special Counsel gave Concord’s lawyers reams of evidence, whoops lol that evidence magically showed up in an October 2018 Russian social media campaign to interfere with the U.S. midterm elections.

Fun fact: the President and three dozen of his associates are in a joint defense agreement; if Mueller were to put all his cards on the table for the first person indicted, that person would tell the rest of the parties what Mueller knows. The three dozen potential defendants would all get their stories straight and strategize about how to fight the evidence they know about. On the other hand, if Mueller charges some guy with seven counts of the coverup and none of the collusion, that defendant only gets to see the evidence of the seven coverup counts. I’d argue that Mueller’s got a pretty good incentive to hide his cards until he needs them.

Now, I’m definitely not suggesting Mueller’s got thirty-six indictments for thirty-six conspirators ready to go, and that Nancy Pelosi is going to be the President by noon tomorrow. That’s a silly conspiracy theory unto itself. All I’m saying is I don’t think the absence of collusion-related charges in any one of these indictments means there’s no There there. Consider that Paul Manafort was indicted three separate times as Mueller sifted through more and more evidence. Consider further that Mueller has thousands of gigabytes of evidence against Stone, which is thousands more than you’d need to show Stone tampered with a witness via text message and lied to Congress a few times.

I don’t know what the endgame looks like, but I don’t think it’s this.

one more thing

I’m reasonably convinced there’s no difference between the investigation for collusion and the investigation for the coverup.

A few weeks back, the New York Times published this bombshell report about the FBI opening a counterintelligence investigation into whether President Trump is a Russian agent. And a few weeks before that, a Times reporter presented Lawfare’s Editor-in-Chief Ben Wittes with the General Counsel of the FBI’s sealed testimony to Congress that the FBI’s investigation of the coverup is about Russian election interference. Now Wittes thinks collusion and the coverup are actually the same thing.

The public understanding of and debate over the Mueller investigation rests on several discrete premises that I believe should be reexamined. The first is the sharp line between the investigation of “collusion” and the investigation of obstruction of justice. The second is the sharp line between the counter-intelligence components of the investigation and the criminal components. The third and most fundamental is the notion that the investigation was, in the first place, an investigation of the Trump campaign and figures associated with it.

These premises are deeply embedded throughout the public discussion. When Bill Barr challenges what he imagines to be the predicate for the obstruction investigation, he is reflecting one of them. When any number of commentators (including Mikhaila Fogel and me on Lawfare last month) describe separate investigative cones for obstruction and collusion, they are reflecting it. When the president’s lawyers agree to have their client answer questions on collusion but draw a line at obstruction, they are reflecting it too.

But I think, and the Times’s story certainly suggests, that the story may be more complicated than that, the lines fuzzier, and the internal understanding of the investigation very different along all three of these axes from the ones the public has imbibed.

The popular conception of Mueller’s investigation—to which I subscribed until recently—has been two separate questions: Q1 was Russian interference and Q2 was collusion between the Trump campaign and Russia. Wittes wants to flip that on its head: Q1 is Russian interference, Q1-a is collusion between U.S. persons and Russia, and Q1-b is the coverup by U.S. persons.

As Wittes points out, plenty of commentators (such as Bill Barr, the future Attorney General) argue the President is incapable of committing the crime of obstruction of justice, because as the chief executive of the United States, he has ultimate discretion over all criminal investigations. Under that theory, ordering FBI Director James Comey not investigate Russian election interference and firing him when he continued to investigate is legal in the same way that shaving your beard isn’t assault because it’s your beard. It’s your FBI, they argue.

That view assumes the coverup is a standalone crime, whereas Wittes points out why the FBI might be treating it quite differently:

But what if the factual premise is more complicated than that? What if the pattern that jumped out at the FBI officials was that the President of the United States had just sought to interfere in an investigation of Russian intelligence activity and then boasted on television that his action was connected in some way to the Russia probe? What if the FBI knew that by the time he did so, the president had drafted a never-sent dismissal letter to Comey, and this letter also made clear that the Russia probe was on his mind at the time he acted?

The facts actually got worse over the next few days. Because even as the bureau was beginning its obstruction inquiry, Trump boasted about his action to the Russian foreign minister and ambassador, saying he had relieved pressure on himself by taking it.

If that’s the case, the coverup isn’t just a way for the President to keep his large adult son from going to prison, the coverup is a way for Russia to prevent the FBI’s counterintelligence operation from investigating, uncovering, and exposing the nature and extent of the election interference. The President can theoretically shut down any criminal investigation he likes, can he shut down a counterintelligence operation into whether the President is a Russian agent?

That’s a whole new kind of gray area.