Mueller’s Russia Indictment: Just One Piece of the Puzzle

Last Friday Special Counsel Robert Mueller announced the indictment of thirteen Russian individuals and three Russian companies. The indictment charges the defendants with engaging in an extensive effort to influence the 2016 presidential election and generally to disrupt U.S. politics. They acted primarily through social media but also staged and supported political rallies and events in the United States, all while posing as U.S. citizens.

This latest salvo from Mueller goes to the heart of his assignment to investigate possible Russian interference with the election. It provides the most detailed public accounting to date of just how extensive those Russian efforts were. It’s a startling look at the Russian attack on our democracy that has long been acknowledged by the intelligence community while being denied by the president himself.

No members of the Trump campaign or other Americans were charged in this indictment, but Mueller continues to investigate a number of different areas. There’s no reason to believe this is the last we will hear from him.

Breaking Down the Charges in the Indictment

Count One: Conspiracy to Defraud the U.S.

Count One charges all of the defendants with taking part in a conspiracy to defraud the United States by impairing, obstructing, and impeding its lawful government functions. In particular, it charges that the scheme obstructed the ability of the Federal Election Commission to administer federal election laws (including those barring political contributions from foreign nationals), the ability of the State Department to issue lawful visas for travel to the U.S., and the ability of the Department of Justice to monitor agents of foreign entities engaging in lobbying work in the U.S.

The conspiracy count is the most wide-ranging charge and encompasses all of the defendants’ alleged efforts to interfere with the U.S. political system. Those activities were carried out through an entity based in St. Petersburg called the Internet Research Agency, LLC, which is also a defendant. It allegedly employed hundreds of people with a budget in the millions of dollars. By the summer of 2016, a group with more than eighty employees was specifically targeting the U.S. population through social media platforms such as Facebook, Twitter and YouTube.

The defendants allegedly posed as U.S. persons to operate numerous social media accounts and pages devoted to the election and divisive social issues. In 2016 they actively worked to promote the Trump campaign and to denigrate Hillary Clinton. They also engaged in other political activities such as efforts to suppress black voter turnout, stir up anti-Muslim sentiments, and promote allegations of voter fraud. Postings from their phony social media accounts were shared by hundreds of thousands within the U.S.

In addition to their extensive social media activities, the defendants allegedly organized, promoted and funded political rallies and events in certain crucial “purple” states. They interacted with U.S. campaign volunteers and activists, including members of the Trump campaign, who apparently were unaware they were dealing with Russians. The efforts including such things as paying a U.S. person to attend a Trump rally dressed as Hillary Clinton in a prison uniform.

The conspirators allegedly used U.S. computer servers and resources to hide the Russian origin of their communications. Several of the defendants allegedly traveled to the U.S. under false pretenses to gather intelligence for the operation. The defendants opened phony PayPal and bank accounts, using stolen identify information from U.S. persons, to help fund their operations. They also allegedly destroyed evidence of their activities once they got wind of the investigation.

Count Two: Conspiracy to Commit Bank and Wire Fraud

Count Two charges three of the defendants with a separate conspiracy to commit bank fraud and wire fraud. This charge relates to stealing identity information from U.S. persons and using that information to open accounts at a U.S. bank and on PayPal. Those accounts were then allegedly used to fund the defendants’ political operations in the U.S. and conceal the fact that the money was coming from Russians.

Counts Three through Eight: Aggravated Identity Theft

Counts Three through Eight charge five of the defendants with Aggravated Identity Theft. These charges also relate to the use of stolen information from U.S. persons to open bank accounts and PayPal accounts.

Special Counsel Robert Mueller

Special Counsel Robert S. Mueller III

How the Charges Fit In with Mueller’s Investigation

Given what we know about Mueller’s investigation, there appear to be three different main areas of inquiry:

  1. Russian efforts to interfere with the U.S. presidential election, whether through social media, computer hacking, or through other means, and possible involvement by members of the Trump campaign in those efforts. (Friday’s indictment).
  2. Any efforts to obstruct justice, lie about contacts with Russian officials, or otherwise thwart the Russia investigation (the charges against Michael Flynn and George Papadopolous).
  3. Any collateral crimes uncovered during the course of the investigation, such as money laundering or acting as an unregistered foreign agent (the charges against Paul Manafort and Richard Gates).

The indictment last Friday relates to only a subset of #1 above. I’ll call it the “social media conspiracy,” because it deals primarily with Russian efforts to influence the election through Facebook, Instagram, Twitter, and other on-line platforms. But there are many issues related to potential Russian influence in the campaign that we have heard about during the investigation but are not included in this indictment.

For example, this indictment says nothing about the hacking of Democratic emails and the leaking of those emails to influence the election. There is no reference to the infamous June 2016 meeting at Trump Tower between senior Trump campaign officials and Russians offering “dirt” on Hillary Clinton, or meetings between campaign advisor George Papadopolous and Russians allegedly offering assistance with the campaign.

In short, this indictment provides an exhaustive outline of charges related to only one aspect of one area of Mueller’s inquiry. Even if this is the full universe of charges involving the social media conspiracy, that says nothing about whether additional charges in any of the other areas will be forthcoming.

As professor Orin Kerr noted on Twitter, concluding from this indictment that no one in the Trump campaign was involved in any criminal misconduct is like going to the opera, leaving after Act 1, and saying, “See – no one dies!” This is still only Act 1.

What We Know From This Indictment

Legal theory for collusion: Ever since Mueller’s inquiry first began, a common talking point among his supporters has been that collusion is not a crime. Even if there were collusion between members of the Trump campaign and Russian nationals, they argued, that might be unwise or even disgraceful but would not be criminal – so why should Mueller be conducting a criminal investigation?

This indictment makes it clear that, yes, collusion can be a crime. To collude generally means to work together towards some improper goal. In the criminal law world, that describes the crime of conspiracy. In this post last summer, I described how the general federal conspiracy statute, 18 U.S.C. 371, criminalizes conspiracies to defraud the United States, which includes conspiracies to impair, obstruct, or impede lawful functions and operations of the federal government. Conspiring to interfere with a federal election, I argued, could potentially be charged as a conspiracy to defraud the United States.

That is the theory Mueller has used in Count One of this indictment. It charges the defendants with impairing, obstructing and impeding the lawful functions of three different components of the government: the Federal Election Commission, the State Department, and the Justice Department. The functions of all three were allegedly obstructed by the defendants’ conduct when they made illegal campaign contributions, obtained visas to travel to the U.S. under false pretenses, and failed to register as foreign agents engaged in political activity.

This indictment charges only Russian nationals. But the same legal theory would apply to Americans who conspired to influence the election unlawfully, whether by working with these defendants or as part of a separate conspiracy. To the extent there were any lingering doubts about whether “collusion” might be criminal, this indictment should erase those doubts. Colluding for an unlawful purpose is conspiracy, and arguing that “collusion is not a crime” is simply a smokescreen.

Russian interference: The U.S. intelligence services have long been convinced that Russians actively sought to interfere with the 2016 election. The president himself has repeatedly undercut his own intelligence community by expressing doubts and by saying he believed Vladimir Putin when he denied any involvement. But in the face of these detailed allegations, even the president had to admit the Russian attacks took place. Now on Twitter he has shifted to claiming  (falsely) that he never denied there was Russian interference, only that there was any collusion with members of his campaign, and to blaming president Obama. But he has yet to express any outrage about the Russian attack, or to outline any steps he will take to punish it or prevent it from happening again.

What We Still Don’t Know

Were there other co-conspirators? – Return of an indictment like this does not necessarily mean the Special Counsel is finished investigating this particular conspiracy. It is not uncommon to bring an indictment, continue the investigation, and return a superseding indictment at a later date adding additional charges and/or defendants. To cite just one example: in the FIFA corruption case involving international soccer, prosecutors originally brought a sprawling RICO conspiracy indictment against fourteen defendants.  Months later, they returned a superseding indictment adding sixteen more defendants and nearly doubling the number of charges.

Additional co-conspirators — whether Russian or American — may still be under investigation and could be added later. The indictment does include the typical charging language that the defendants conspired with each other and with others “known and unknown to the grand jury.” Over time we will learn whether in this case that is just boilerplate or whether there are other as yet unnamed individuals still to be charged.

But there is at least one reason to suspect that this indictment may be it for the social media conspiracy. Typically, one reason to bring a preliminary indictment would be to pressure some of the defendants to plead guilty and cooperate in order to build cases against other co-conspirators. In this case, it appears all the defendants are in Russia and beyond reach of the Special Counsel. There is no real opportunity to flip any of them to build the case further. That may suggest Mueller has simply brought the indictment to close out this aspect of his investigation and move on to other areas.

Are there other conspiracies to influence the election? – Even if this indictment represents the full story on the social media conspiracy, there could be other, different conspiracies still to be investigated and potentially charged. For example, this could include a conspiracy between Russians and individuals involved in the Trump campaign concerning efforts to influence the election involving the hacked emails or other unlawful activities.

Will there be more cases? – Areas two and three mentioned above, which involve potential obstruction of justice and activities such as Russian money laundering, are not implicated by this indictment. They too will proceed on a separate track  and could result in additional prosecutions.

Why This Indictment At This Time?

As others have noted, it’s unlikely any of these defendants will see the inside of a U.S. courtroom. Apparently they are all in Russia, and Putin will not be rushing to help extradite them. So if the case can’t be prosecuted, why bring it at all?

Mueller’s central task is to investigate possible Russian interference with the election. This indictment represents the findings of that investigation. It’s his job to bring the charges, whether or not they can ever be pursued. It represents the response of the American criminal justice system to these attacks, and lets the public know what Mueller has found. Ideally, it also would alert our political leaders to the dangers of future attacks and spur them to take some steps to prevent them.

Bringing this indictment at this time is also tactically shrewd on Mueller’s part. By not including any Americans or allegations of participation by members of the Trump campaign, he has shielded the indictment and his investigation from political attacks. The charges demonstrate that Mueller is not some political hack out to get the president but is serious about getting to the bottom of the Russian actions. That gives some political cover to the investigation. The anger over these allegations and support for the indictment should be largely bipartisan. If Trump were still thinking about firing Mueller, it just became exponentially more difficult to do so.

What’s Next?

No one knows but Mueller and his team – and they’re not talking. This investigation has no leaks. There apparently was not even a hint of last Friday’s indictment before it happened.

There’s certainly no sign that Mueller is nearing the end of his investigation. This indictment is simply one piece of the overall puzzle that he is examining. There are many potential areas of inquiry still outstanding. As to whether any of these areas result in more criminal charges – we can only wait and see.

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