The long-awaited Mueller Report provides a detailed picture of the wide variety of crimes investigated by the Special Counsel’s Office, many of which resulted in indictments or guilty pleas, and, in the case of President Trump, a strong suggestion that Congress review the legality of obstructive acts. Although Mueller declined to make a final determination regarding President Trump’s criminal liability, contrary to assertions from the administration, the investigation did not exonerate Trump. Instead, the report identified multiple instances of what may be considered obstructive conduct by the President. Citing limitations on its role as an arm of the Justice Department, the Special Counsel’s Office referred determination of the question of whether Trump obstructed justice to Congress.
The report covers a broad array of illegal actions, including computer intrusion/hacking, trafficking and fencing stolen property, unlawfully acting on behalf of a foreign government within the United States, campaign finance laws violations, perjury, obstruction of justice, and conspiracy. Volume I of Mueller’s report addresses Russian interference in the election and that country’s interactions with the Trump campaign. Volume II focuses on Trump’s response to the investigation and whether the actions of Trump and others constituted obstruction of justice as frequently has been suggested.
Here are the Top 10 crimes considered by Mueller, from least serious to most damaging to the fabric of the Nation.
RUSSIAN INTERFERENCE: CRIMES 10 THROUGH SIX
Russian interference in the U.S. presidential election was the centerpiece of Mueller’s investigation. Despite repeated denials by the White House, the intelligence community and Mueller found undeniable proof that Russian military intelligence officers hacked into computer and email accounts of organizations, employees, and volunteers supporting the Clinton campaign. The Democratic Congressional Campaign Committee and Democratic National Committee also were hacked. Hundreds of thousands of documents were stolen in these efforts and later released through online persons and, famously, through WikiLeaks. The timing of the leaks were intended to interfere with the presidential election in favor of Donald Trump.
The Special Counsel’s Office filed an indictment in July 2018, charging conspiracy to hack into the computers of individuals and entities involved in the 2016 election to commit violations of 1030(a)(2)(C), which requires proof that the defendants: i) intentionally ii) accessed without authorization a protected computer and iii) thereby obtained information, and 1030(a)(5)(A), which requires proof that the defendants intentionally caused unauthorized damage on a protected computer.
Although ultimately ruled out, the Special Counsel’s Office also considered whether the post-hacking dissemination of material by the Russians constituted trafficking or fencing stolen property in violation of the National Stolen Property Act. Violations occur when an individual: i) unlawfully transport or cause to be transported in interstate or foreign commerce; ii) goods, wares, merchandise, securities, or money having a value of $5,000 or more which are stolen, converted or taken by fraud; and iii) knowing the same to be stolen, converted or taken by fraud. Case law from lower circuits specifically has excluded application of the NSPA to electronic or digital data, finding that “goods, wares, or merchandise” is limited to tangible items. Mueller’s team believed this interpretation would be a roadblock to any prosecution under this statute.
Mueller’s team assessed potential liability of individuals within the Trump campaign under federal statutes regulating actions on behalf of, or work done for, a foreign government. The Special Counsel’s investigation uncovered extensive evidence that before they ran Trump’s presidential campaign, Paul Manafort and Richard Gates worked as agents of the Ukrainian government by lobbying United States officials on behalf of Ukraine without disclosing their relationship with the foreign government or reporting the tens of millions of dollars they were paid by the government and political parties of Ukraine. Both Manafort and Gates pled guilty to this conduct in prosecutions in the District of Columbia.
The Special Counsel’s Office also considered whether Manafort and other Trump campaign officials, notably George Papadopoulos and Carter Page, acted as agents of the Russian government or at its direction, control or request during the relevant period. Ultimately, the investigation did not yield sufficient evidence to prove these charges beyond a reasonable doubt.
Individuals acting on behalf of a foreign government in the United States are required to register their presence with the Attorney General. The Foreign Agents Registrations Act makes it illegal to act as an agent of a foreign principal by engaging in political activities in the United States and Section 951 of Title 18 is aimed at non-political activities of such agents. A criminal violation of the FARA occurs when the agent willfully engages in political actions on behalf of a foreign government without registering. Section 951, on the other hand, does not require willfulness and knowledge of the notification requirement is not an element of the offense.
The infamous Trump Tower meeting between Trump campaign officials, including Donald Trump, Jr. and Jared Kushner, and Russian officials was the centerpiece of Mueller’s focus on whether a violation of campaign finance laws occurred. In an email exchange before the meeting, the Russians offered the Trump campaign “official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to [Trump].”
Observing that reasonable arguments could be made that this information constituted a “thing of value” within the meaning of the campaign finance laws, Mueller ultimately determined that a conviction likely could not be sustained because insufficient admissible evidence was uncovered that the Trump campaign officials acted “willfully” with knowledge of the illegality of their conduct. In addition, prosecutors believed they would encounter difficulty in proving beyond a reasonable doubt that the information was valued at either $2,000 or $25,000 so as to invoke criminal liability. A “knowing and willful” violation of the campaign finance laws involving an aggregate of $25,000 or more in a calendar year is a felony. Amounts between $2,000 and $25,000 per year is a misdemeanor.
Three high-ranking Trump officials, George Papadopoulos, Michael Flynn, and Michael Cohen, were found to have lied to investigators in connection with the Special Counsel’s investigation. Mueller’s team considered similar charges in connection with statements made by Jeff Sessions about his interactions with the Russian Ambassador Sergey Kislyak during the Republican National Convention in July 2016. The evidence was determined to be insufficient to prove that Sessions was willfully untruthful in his answers. According to the report, the Office determined not to pursue charges against Sessions “consistent with the Principles of Federal Prosecution.”
Knowingly and willfully making any materially false or fraudulent statement or representation in any matter within the jurisdiction of the executive branch is a crime. Testifying falsely under oath before a grand jury, of course, also is a crime.
TRUMP’S OBSTRUCTION OF JUSTICE: CRIMES FIVE THROUGH TWO
Although Mueller makes no formal conclusion on the obstruction questions, the Report analyzes many actions taken by Trump in the context of the basic elements of the crime of obstruction: i) an obstructive act – interpreted to mean any act that blocks, makes difficult or hinders; ii) a nexus between the act and an official proceeding; and iii) a corrupt intent.
Contrary to assertions repeatedly made by Trump and his administration, the investigation “found multiple acts by the president that were capable of exerting undue influence over law enforcement investigations, including the Russia-interference and obstruction investigations.” Mueller’s Report tees these issues up for Congress to consider, stating “The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”
Number 5. Obstruction of Justice: Trump’s Conduct Concerning the Investigation of National Security Advisor Michael Flynn
After the fact that Michael Flynn had made false statements to FBI agents and administration officials about his communications with the Russian Ambassador (noted above) became public, Trump asked him to resign in February 2017. Mueller’s investigation found credible evidence that Trump had a one-on-one conversation with then FBI-director, James Comey, the following day during which Trump stated: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy.” Mueller further found credible that Comey understood Trump’s statement to be a directive.
Mueller also concluded that at the time Trump spoke to Comey, circumstances suggested he was aware that Flynn could face criminal exposure for his conduct and was at risk for prosecution. The investigation produced evidence that the President connected Flynn’s investigation to the FBI’s broader Russian investigation as to whether members of his campaign had colluded with Russia. Mueller also believed that the way in which Trump communicated his request to Comey – by clearing the room and addressing him alone – was relevant to understanding Trump’s intent.
Number 4. Obstruction of Justice: Trump’s Termination of FBI Director Comey
Less than a week after Comey testified before Congress, Trump fired Comey. Mueller found that substantial evidence indicates that the catalyst for Trump’s decision was Comey’s unwillingness to publicly state the President was not personally under investigation. This notion is supported by Trump’s official termination letter which included a representation that on three occasions, Comey had informed the President that he was not under investigation. Despite Trump’s efforts, the Report points out that Trump likely was aware that the act of firing Comey, the individual overseeing the FBI’s Russia investigation, ultimately would not end the investigation.
Number 3. Obstruction of Justice: Trump’s Attempts to Remove Mueller and Curtail the Investigation
Trump’s reaction to the appointment of Mueller as Special Counsel remarkably was strong from the beginning, prompting him to comment that the investigation would be “the end” of his Presidency. The investigation revealed substantial evidence that Trump directed White House Counsel Don McGahn to have the Special Counsel removed, not just because of alleged conflicts of interest (as Trump often Tweeted), but as an obstructive act specifically because the Special Counsel’s Office had oversight of investigations into Trump’s conduct.
Number 2. Obstruction of Justice: Trump’s Efforts to Persuade Members of His Staff to Publicly Misrepresent Events
Trump attempted to persuade members of his staff to withhold or publicly misstate events on numerous occasions. Most notably, Trump asked McGahn to dispute press reports that the President tried to fire Mueller. In this instance, as in many others, Trump’s efforts failed because those around him declined to carry out his orders, arguably because they found them improper, at best, and illegal, at worst. Mueller concluded that the President sought to influence McGahn’s account in order to deflect or prevent further scrutiny of the President’s conduct toward the investigation.
AND THE NUMBER ONE CRIME MUELLER CONSIDERED:
Number 1: Conspiracy to Defraud the United States (18 U.S.C. §371) a/k/a “Collusion”
This final crime served as the impetus for the appointment of a Special Counsel and Mueller’s investigation. Despite chants of “no collusion,” the report shows a wide-ranging conspiracy (a/k/a collusion) aimed at undermining this country’s democracy and aiding Trump.
In February 2018, thirteen Russian nationals and three Russian entities were indicted by the Special Counsel’s Office in connection with the Russian social media campaign to aid Trump’s campaign and disparage Hillary Clinton. Pursuant to the summary set forth in the Mueller Report, as early as 2014, employees of the Russian organization Internet Research Agency, LLC (IRA) used fictitious U.S. personas to operate social media accounts and group pages designed to reach large U.S. audiences by addressing divisive political and social issues.
Under Section 371 of the United States Criminal Code, it is an offense “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.” According to prosecutors and the Special Counsel’s Office, the object of the Russian defendants’ conspiracy indeed was to “defraud the United States by impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016.” In the course of carrying out these efforts, IRA employees knowingly and intentionally engaged in a number of overt deceptive acts such as lying to obtain visas to travel to the United States, using stolen U.S. identities, organizing and promoting political rallies in the U.S. while posing as U.S. grassroots activists, and actively recruiting U.S. persons to further operational goals.
Separately, the Special Counsel’s Office determined that although the Trump campaign frequently retweeted or reposted the IRA pro-Trump/anti-Clinton messages and had contact with the IRA in connection with the organizations pro-Trump rallies, evidence uncovered did not demonstrate that Trump campaign officials did so with the knowledge or the criminal purpose required to include them in either of the conspiracy charges.