Is it the coverup — or the crime? With Trump and Russia, we still can't be sure

Is the Mueller investigation mostly about obstruction of justice? Don't forget about the underlying conspiracy

By Heather Digby Parton

Published February 12, 2018 8:05AM (EST)

 (Getty/AP/Photo montage by Salon)
(Getty/AP/Photo montage by Salon)

This latest Trump White House scandal, involving one high-level staffer's firing and another's hasty resignation, after reports surfaced that they had been accused of domestic violence, has been infuriating. As is par for the course, the president stepped forward to defend Rob Porter, the man accused of abusing not one but two wives, telling the nation that he was sad for the poor man and that he "absolutely" wished him well. It was reminiscent of his earlier comments after Charlottesville, when he expressed the sentiment that some of the Nazis who rallied there were "very fine people." He always seems to find the good in violent white men.

But this scandal is about more than the rampant misogyny surrounding Donald Trump. The irony in the fact that Trump's White House counsel, Don McGahn, and his chief of staff, John Kelly, allowed Porter to operate without a top security clearance in a job that handles the United States' most sensitive secrets cannot be overstated. This president ran an entire campaign insisting that his rival should be jailed for using a private email server for non-classified State Department correspondence. Yet here we are, a year after the inauguration, and the Trump White House is reportedly employing dozens of people who cannot qualify for a security clearance. One of them was in a job that requires the highest level of clearance and another, Jared Kushner, has apparently been given access to the same intelligence the president gets.

Aside from the ongoing horror at every aspect of this presidency, this issue once again raises the question of just how fast and loose Trump and his aides play with these national security issues. If they can be this cavalier about handling the nation's most sensitive secrets in the White House, is it really hard to believe they might have been open to a little deal-making with a friendly Russian or two during the campaign?

It seems as if many observers believe that special counsel Robert Mueller is homing in on Trump over issues of obstruction of justice. It is the one case that offers the most public evidence, mainly stemming from the testimony of former FBI Director James Comey and various leaks about Trump's clumsy demands that just about everyone who walks into the White House do whatever it takes to get him off the hook. It's not much of a stretch to think there might be a case there.

There is more to the Russian investigation than obstructing it, however. We don't have a clear idea what that might be yet, which is as it should be, but there is enough evidence in the public domain to see the basic outlines. Jonathan Alter and Nick Akerman stitched it together nicely in this piece for the Daily Beast.

They make the common-sense observation that during the Watergate scandal, President Richard Nixon was never shown to have known about the original crime and was done in by the coverup, but the current political environment is quite different and will likely require the underlying crime be proven as well. After all, this case is about a conspiracy with a foreign government and if there is evidence that actually happened, it's something that should be properly adjudicated. It's not your run-of-the-mill corruption investigation.

Alter and Akerman point out that Nixon's prosecutors had almost all the information they needed more than nine months before he resigned, and they assume Mueller too has amassed most of the evidence for his case, which they believe consists of "conspiracy, wire fraud, illegal foreign campaign contributions, or all three." For the conspiracy, they point to Michael Flynn's statement to the court admitting that he'd lied to the FBI about something that “had a material impact” on the FBI’s probe “into the existence of any links or coordination between individuals associated with the [Trump] Campaign and Russia’s efforts to intervene in the 2016 election.” They write:

The conspiracy case -- the heart of Mueller’s efforts -- almost certainly boils down to an old-fashioned quid pro quo. Flynn’s “quid” — the substance of his recorded conversations with Russian Ambassador Sergey Kislyak — was lifting the sanctions that President Obama imposed on Russia in late 2016 and the earlier sanctions related to Russia’s invasion of the Ukraine. The “quo” was collusion (“conspiracy” in legal terms) with Russians to harm Hillary Clinton’s 2016 campaign, which Flynn effectively admitted was “material” to his lies after the election. Anyone associated with this deal is in deep legal trouble.

They note that fraud charges could be related to any "overlap between the illegal Russian fake news posts and the Trump campaign’s routine micro-targeted negative messages -- a painstaking but manageable set of data comparisons." There is also the suspicion that campaign contributions were routed through the NRA -- and there is the major line of inquiry into money laundering and the Trump Organization. That's the one we have seen the least amount of information about that could be the real blockbuster.

According to Alter and Akerman, the legal definition of "conspiracy" is simply “a mutual understanding, either spoken or unspoken, between two or more people to cooperate with each other to accomplish an unlawful act.” This understanding can happen before, during or after the crime. Furthermore:

“It is not necessary that a defendant be fully informed of all the details of the conspiracy, or all of its participants,” the model jury instructions continue. “You need not find that the alleged members of the conspiracy met together and entered into any express or formal agreement.”

With all the meetings and emails, public pronouncements and guilty pleas, it does appear that there may be more to all this than a coverup of a crime that never took place. Since this gang has been shown to be so lax about national security even after they entered the White House, it's entirely possible they didn't understand or didn't care about the implications of their actions during the campaign and the presidential transition.

Unfortunately for them, while being ignorant and careless may be a selling point in the Republican Party these days, it's still no excuse for breaking the law. This time around, the crime could very well be worse than the coverup.

Heather Digby Parton

Heather Digby Parton, also known as "Digby," is a contributing writer to Salon. She was the winner of the 2014 Hillman Prize for Opinion and Analysis Journalism.

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