Trump’s August 17, 2016, classified briefing irrevocably changed his legal status with respect to Russian cyber-aggression: the Republican nominee was now obligated to act as a “reasonable person” under federal law in evaluating the likelihood that Russian actors were, as of August 2016, committing crimes against America.
The federal statute that covers what is commonly known as “aiding and abetting,” 18 U.S.C. § 2(a), dictates that anyone who aids or abets a crime is punishable as though he had committed the crime himself. Specifically, the statute prohibits aiding, abetting, counseling, commanding, inducing, or procuring a federal crime. Because many crimes incorporate not just a planning and execution phase but also a lengthy phase in which incriminating evidence is concealed, it’s possible to aid and abet a crime “after the fact” by assisting the “principals”—those who committed the criminal act itself—in obscuring the fact of their guilt by any means, be it destuction of evidence, false statements to investigators, or obstruction of justice and witness tampering.
If one doesn’t have a basis to believe a third party has committed a crime, one almost certainly won’t be charged for taking actions that have the inadvertent effect of aiding or abetting that crime. Just so, if one knows someone has committed a crime but does nothing that materially aids or abets the commission or concealment of that crime, one is unlikely to be charged under this statute. If, however, one has reason to believe, under what the law calls the “reasonable person” standard, that there is a “high likelihood” a federal crime has been committed, and if one thereafter engages in behavior that a reasonable person would know was likely to have the effect of aiding or abetting a federal crime before, during, or after its commission, the statute is violated.
Once Trump left his classified briefing on August 17, 2016, both he and any aide who was in the room with him during the briefing, and any aide with whom he shared the classified intelligence he’d received in the briefing, were immediately required to act as “reasonable persons” under the law and accept that there was a “high likelihood” Russian nationals were committing crimes against the United States. That “high likelihood” would be predicated on a number of facts: that Trump received a consensus judgment from one, several, or all U.S. intelligence agencies on the question of Russian interference; that those agencies, while not infallible, are known to have access to the best signals intelligence (SIGINT), human intelligence (HUMINT), and financial intelligence (FININT) in the world; that as president of the United States, and having taken an oath of office, the “reasonable person” standard incorporates Trump’s self-acknowledged duty to safeguard the nation; and the opportunity Trump had to question his briefers, follow up with them, receive subsequent briefings, and be apprised of their credentials. A legal assessment of Trump’s responsibilities under 18 U.S.C. § 2(a) might also take into account that Trump had no experience in the field of national security; a reasonable person in his position would therefore presume a “high likelihood” of the Russians’ being engaged in criminal activity not on the basis of gut instinct or personal experience but from the information that person had received from the U.S. intelligence community. I note here “the U.S. intelligence community” because Trump isn’t legally entitled to rely on claims or intelligence originating from Russia in meeting the law’s “reasonable person” standard, nor could he follow his instincts and thereby remain willfully ignorant. The aiding and abetting statute has no exception for willful ignorance.
18 U.S.C. § 2(b) further prohibits any person from “willfully”—which the law takes to mean “purposefully”—causing a crime against the United States to be committed. So if by July 27, 2016, Trump had received sufficient information from his national security advisers or members of his family to believe with reasonable certainty that the Russians favored his campaign over Clinton’s, were looking to assist him in securing victory on November 8, and were engaged in an ongoing effort to illegally access emails or other materials stored in the United States, him saying what he said on July 27, 2016, would be a crime committed in public.
In the context of his full remarks on July 27, 2016, it’s clear that Trump was discussing and addressing, as he said at the time, Russian hackers specifically. His now infamous “Russia, if you’re listening” comment immediately followed a reference to those Russians who “hack into a major party and get everything.” What Trump here is describing is known as “computer crimes,” which can involve hacking, fraud, theft, and even espionage. So Trump’s invitation to those Russian cybercriminals—saying he’d find it personally “interesting” to see any materials Russian hackers were able to steal and that he “hoped” those hackers could pull off their crimes successfully so that he and the media could see such “interesting” documents—was almost certainly criminal, given what Trump knew at the time.
Trump’s criminal intent is further underscored by the fact that his entreaty to the Russian hackers was preceded by a series of deliberate lies about his ties to Russia. Most notably, as part of his response to CNN’s Jim Acosta, he said, “I have nothing to do with Putin. I’ve never spoken to him. I don’t know anything about him.” Later in the exchange, when Trump says, “[I]f it is Russia [hacking the DNC]—which it’s probably not, nobody knows who it is,”47 Trump was hiding back-channel information he could well have received from his national security advisers or his own family: specifically, in April 2016 the Russians had told one of his aides, George Papadopoulos, that they were engaged in efforts to steal Clinton’s emails, and in June 2016 his son and son-in-law were told that the Russians had come into possession of “official documents and information” that could incriminate Clinton. Likewise, if Trump was aware of the effort being made throughout the month of July by Peter W. Smith—in conjunction, Smith claimed, with Michael Flynn, Steve Bannon, Sam Clovis, and Kellyanne Conway, all top Trump advisers—to track down Russian hackers and get from them Clinton’s “missing” emails, Trump’s statement to Acosta in Florida would be untrue. Moreover, if during his August 17, 2016, classified national security briefing his FBI and CIA briefers asked him if the Russians had made any effort to infiltrate his presidential campaign and he responded in the negative—despite what he then knew about Papadopoulos’s acting as an intermediary for the Kremlin—he may have run afoul of the federal statute prohibiting making false statements to federal law enforcement officers who are in the midst of an investigation (18 U.S.C. § 1001).
That Trump began his infamous remark in Florida by speaking about Russians’ “hack[ing] into a major party” but ended by asking those same hackers to find “the 30,000 [Clinton] emails that are missing” underscores that he was aware of these hackers’ past crimes and wanted them to now commit new and different ones. As noted by Quartz in July 2017, “one could . . . consider Trump’s public request that Russia find and release Clinton’s emails as an illegal [campaign donation] solicitation.”48 This is particularly true given that Trump had spoken publicly, not only on July 27, 2016, but as early as June 7, about how “interesting” information about Clinton’s emails would be to voters and the media alike. That’s a clear confirmation that, in Trump’s view, derogatory information about Clinton would have cognizable value if provided to him, to the media, or to anyone else, for that matter.
In July 2018, Robert Mueller indicted twelve Russian intelligence officers for their roles in hacking the Democratic National Committee and the Clinton presidential campaign. A reading of the indictment would cause one to conclude that Trump’s willful attempts to “induce” (18 U.S.C. § 2(a)) or “cause” (18 U.S.C. § 2(b)) crimes against the United States by Russian hackers had been successful—just as he’d publicly said he “hope[d]” they would be—as less than twenty-four hours after his remarks the very people he’d been addressing executed a cyberattack to access the very information he was requesting.
Trump’s August 17, 2016, security briefing and henceforth requirement to act as a “reasonable person” under 18 U.S.C. § 2 also requir
ed him to cease and desist offering the Kremlin unilateral financial benefits under the guise of a détente with the Russian government. As NBC News reported in June 2017, “The Trump administration was gearing up to lift sanctions on Russia when the president took office.” It was, said NBC, “the latest evidence that President Trump moved to turn his favorable campaign rhetoric into concrete action when he took power.”49 Under the “reasonable person” standard, Trump was required to understand that a person in his position arguing for a unilateral dropping of sanctions on Russia—with no preconditions or benefits to American interests offered in return—would be materially benefiting Russia, not the United States, and that such an action would be seen in those terms by Russia at a time it was expending money to commit crimes against the United States and presumably looking to offset or justify those expenditures.
In April 2017, PolitiFact, the nonpartisan political and media watchdog, found that Trump mentioned WikiLeaks—which his own CIA director, Mike Pompeo, called a “non-state hostile intelligence service”—between 140 and 160 times in the final month of his presidential campaign. PolitiFact found no evidence that Trump had ever spoken disparagingly of WikiLeaks in October 2016 and indeed quoted him as saying “I love WikiLeaks” during an October 10, 2016, speech. At the time, WikiLeaks was in the process of releasing stolen documents that, according to his August 2016 classified briefing, had a high likelihood of having been stolen by the Russians. And because Rob Goldstone had told Donald Trump Jr. that Russian actors were surreptitiously seeking dirt on Clinton—and because, per a July 2018 CNN story, Trump’s attorney Michael Cohen says Trump was aware of the Goldstone-Trump Jr. emails—it’s fair to say that by October 2016 Trump had reason to believe that praising WikiLeaks was likely to “induce” or “cause” both more cyber-intrusions against Democratic targets and more illegal releases of the evidence stolen during those intrusions. So here, too, Trump was committing crimes in plain sight—simultanously encouraging Russian transgressions while obscuring from U.S. voters the real state of his knowledge about Russia’s actions.
CHAPTER TEN
THE OCTOBER SURPRISE
October 2016
Summary
TRUMP ALLIES CONTINUE TO SQUEEZE political value out of the “Clinton email” issue: they push the claim that the emails contain incriminating evidence against Hillary Clinton without specifying what that incriminating evidence is. But in the weeks before the 2016 election, made-up incriminating evidence in the form of a conspiracy theory called “Pizzagate” begins circulating on the internet, along with the suggestion that more evidence may be contained in the so-called missing Clinton emails. The widely debunked Pizzagate conspiracy theory says Clinton is running a sex-trafficking ring from the basement of a pizza restaurant in the D.C. area. Rolling Stone and the New York Times report that the effort to spread that conspiracy theory is backed in part by Russian operatives and Russian-influenced networks and involves some of Trump’s top advisers and surrogates, including Steve Bannon, Erik Prince, Michael Flynn, Rudy Giuliani, and Donald Trump Jr.1 The operation meets with unexpected success when Trump campaign disinformation about incriminating evidence, coupled with illegal leaks to the Trump camp from the NYPD and the FBI, help convince FBI director James Comey to reopen the Clinton server investigation, which he’d previously closed—via a controversial public statement on the matter—in July.
As Election Day looms, figures once thought to no longer be part of Trump’s orbit reemerge. Paul Manafort is secretly advising Trump—with an emphasis, predictably, on leveraging the Clinton email issue into an Election Day victory. Roger Stone, officially gone (but never unofficially gone) from his role as a critical campaign adjunct, appears to have inside knowledge of WikiLeaks’s and Guccifer 2.0’s intentions with respect to last-minute election interference. Campaign surrogate Rudy Giuliani darkly intimates that leaks from the NYPD and the FBI office in New York City will produce a major surprise in late October that could tip the election to Trump. Ultimately, the reopening of the Clinton case—prompted, far more than is understood at the time, by the collusive actions of the Trump campaign—contributes to a collapse in Clinton’s support in the month before the election. The Democratic candidate goes from leading Trump by more than seven points in a “poll of polls” three weeks before Election Day to losing the election in the Electoral College 304 to 227.2
Popular polling analysis website FiveThirtyEight will report, in May 2017, that “the Comey letter probably cost Clinton the election.”3
The Facts
AN HOUR AFTER THE ACCESS Hollywood tape is released to the public—featuring Trump bragging about serially sexually assaulting women—Trump has a secretary contact his old friend Roger Stone, the man Politico calls a “political dark-arts operative.”4 Trump had fired Stone in August 2015—or, to hear Stone tell it, Stone quit at that point—but the correspondence between the two men hasn’t abated as of October 2016, a fact that will eventually lead Special Counsel Mueller to assert in his July 2018 indictment of twelve Russians that Stone stayed much more involved in the pro-Trump movement after his departure than his exit from the Trump campaign proper might have suggested.5 He will interview at least eight people close to Stone to try to track his movements from 2015 onward, and in late August 2018 Stone himself will take to Instagram to declare that a New Yorker source is about to falsely accuse him of telling Trump about WikiLeaks data dumps in advance.6 What Trump and Stone discussed immediately after the release of the Access Hollywood tape is unknown.
Stone, “known universally in political circles as a Nixon-era ‘dirty trickster,’ ” according to Politico, never really disappears from the Trump campaign’s milieu after his firing, in part because of his long relationship with Trump and in part because of his even longer relationship with Paul Manafort, with whom he ran a lobbying firm in the 1980s and 1990s.7 According to New York Magazine, when Stone leaves the Trump campaign in August 2015, he does so, in his own words, on “excellent terms,” a contention that will seemingly be confirmed by his post-departure statements about his relationship with the campaign: in late August 2015, he refuses to say if he’s stayed in touch with the campaign after leaving it; in September 2015, he admits that since leaving the campaign he and Trump “talk on the phone from time to time”; in April 2016, he speaks glowingly of Trump’s Manafort hire, noting that “by turning to Paul Manafort, who’s a former partner of mine, a very skilled guy . . . I think that Donald has made an excellent selection”; the next month, in May 2016, he tells CNN that he speaks with Trump “now and then”; and in August 2016, as he begins to have contact with a Russian hacker and a non-state hostile intelligence service, WikiLeaks, he will tell C-SPAN, “I do have access to all the right people [in the Trump campaign].”8 Weeks before Election Day, notes New York Magazine, Stone will brag about being able to “fir[e] off long memos to the Donald once or twice a week” with the expectation they will be read by the candidate.9
So when Stone met with a Russian national who called himself “Henry Greenberg” in May 2016—a meeting set up by Michael Caputo, a former adviser to Russian president Boris Yeltsin and, in May 2016, a communications adviser to Trump—he was in a position to pass on any information he learned to the candidate himself.10 Greenberg (who also called himself “Henry Oknyansky”) offered Clinton dirt to Trump, via Stone, for $2 million, an offer Stone will say—when the meeting is finally made public in 2018—he turned down only because he knew Trump would have wanted the dirt for free.11 While the nature of the information Greenberg offered to Stone is as yet unknown, a clue about its topic can be gleaned from the man Greenberg showed up with when he met Stone: a Ukrainian named “Alexei” who claimed he had worked for the Clinton Foundation.12 The 2018 revelation of the Stone-Greenberg meeting will reveal as inaccurate Stone’s previous contention that “I didn’t talk to anybody who was identifiably Russian during the two-year run-up to this campaign. I very definitely can’t think of anybody who might have been a Russian
without my knowledge. It’s a canard.”13 When asked why they withheld information about the meeting with Greenberg in their separate congressional testimonies, both Stone and Caputo will claim to have forgotten the incident entirely.14 Yet Caputo’s alacrity in turning to Stone when his Russian business partner, Sergey Petrushin, comes to him with news that Greenberg has information of value for Trump underscores that in May 2016—nine months after his firing (or resignation) from the Trump campaign—Stone is still felt to have ready access to Trump officials and possibly Trump himself. As the Washington Post notes, “In the spring of 2016, Stone . . . remained in touch with Trump and some in his orbit.”15 Indeed, in April 2017 the Daily Beast will report that Stone was instrumental in convincing Trump to hire Paul Manafort in March 2016.16
Seen in this light, Stone’s ongoing public association with WikiLeaks in the late summer and early fall of 2016 is troubling—especially when added to Trump Jr.’s late-summer communication with WikiLeaks, the Kushner-hired/Bannon-founded Cambridge Analytica’s outreach to WikiLeaks, and Trump’s own public fixation on the organization in his October 2016 speeches. An April 2017 PolitiFact assessment will concur with a Democratic congresswoman’s claim that Trump mentioned WikiLeaks approximately 160 times in the final month before the election.17
Proof of Collusion Page 21