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Why Mueller’s final move could be a grand conspiracy case

The Watergate and Iran-Contra scandals provide clues to the Russia endgame.

by Greg Walters
Feb 1 2019, 3:00pm

President Trump’s TV lawyer Rudy Giuliani likes to argue that even if the Trump campaign straight-up colluded with Russia in an attempt to flip the 2016 election, that would be no crime.

But special counsel Robert Mueller’s growing stack of indictments, which has resulted in charges against 34 people, points to a way such coordination might be charged: as a criminal conspiracy.

As Mueller reportedly puts the finishing touches on his two-year investigation, a pattern is emerging, one that suggests a conspiracy indictment may indeed be his endgame.

An indictment that links together the bewildering subplots of the Russia saga into a broad criminal conspiracy is not a given, and some legal experts believe it’s not coming. Still, the kind of conspiracy hinted at in Mueller’s filings would have historical precedent in some of the biggest modern American political scandals, including Watergate and Iran-Contra.

Both cases saw a special prosecutor investigate initial crimes and subsequent cover-ups before eventually filing charges that alleged criminal conspiracies among top officials.

Mueller has already slapped an assortment of lesser conspiracy charges on more than two-dozen targets, including Russian cyber-spies and trolls, former Trump campaign chairman Paul Manafort, and Manafort’s former deputy Rick Gates. The conspiracy charges against Russians involve plots to hack Democratic emails, and to interfere with the work of government agencies.

Last week, Mueller hit Trump’s longtime confidant Roger Stone with seven counts, including for lying to Congress and witness tampering. Stone’s indictment specified that a senior campaign official “was directed” to tell him to reach out to WikiLeaks, a detail that may eventually help underpin a broader conspiracy allegation.

The special counsel’s office declined to comment. The White House didn’t return an email seeking comment, but in an interview with The New York Times Thursday, Trump denied directing Stone — or anyone — to contact WikiLeaks.

“Mr. Stone was certainly not involved in any conspiracy, has no knowledge of any conspiracy, and thus has no reason to believe that any would be charged against anyone,” said Grant Smith, Stone’s lawyer.

At the heart of a criminal conspiracy are two basic components: An agreement by two or more people to pull off something illegal, and then a clear step toward actually doing it — in legal terms, the “overt act.”

“If there were a conspiracy, then the order to reach out to Roger Stone might be an overt act that would make the conspiracy complete,” said Paul Rosenzweig, who was a member of Ken Starr’s investigation into former President Bill Clinton.

But there’s also a special type of conspiracy charge — one that doesn’t need to be based on an underlying crime. The dramatically titled “conspiracy to defraud the United States” is particularly well-suited to Mueller’s purposes.

‘CONSPIRACY TO DEFRAUD THE UNITED STATES’

Just last Sunday, Rep. Adam Schiff (D-Calif.), the top Democrat on the House Intelligence Committee, told ABC’s George Stephanopoulos that a broad, sweeping “collusion indictment” may be Mueller’s final charge.

“If there is a conspiracy to defraud the United States, a collusion indictment, it would be the last indictment Bob Mueller would seek, not the first,” Schiff said.

The charge is also known as a “Klein conspiracy,” after an otherwise obscure 1957 tax case.

In that instance, a group of whiskey merchants including a guy named Hyman Klein was charged with both tax evasion and organizing a complex scheme to stop the Treasury Department from collecting taxes. While they beat the tax evasion charges, they were found guilty of the conspiracy itself.

A “Klein conspiracy” involves an agreement to obstruct a function of the U.S. government, such as collecting taxes. In this case, the conspiracy may involve interfering with an election.

“I think a Klein conspiracy is highly likely to be the direction that Mueller is going,” said Rosenzweig. “Mueller would need to demonstrate that there was an agreement to undertake an unlawful objective: to interfere with an election in the United States, and that at least one overt act was done in furtherance of that conspiracy.”

Such cases are commonly brought against tax cheats by the IRS — but there’s also precedent for using them in a political context, most notably in the Reagan-era Iran-Contra scandal and in Watergate.

In 1988, senior members of Reagan’s administration, including Lt. Col. Oliver North, were charged with conspiracy to defraud the United States over their alleged roles in illegally selling arms to Iran and passing the proceeds to rebels in Nicaragua.

“I think Mueller has his eyes on one big prize: a vast conspiracy to interfere with the 2016 election"

The affair was investigated by Congress and independent counsel Lawrence Walsh. By the time it was over, 14 people were criminally charged and 11 were convicted — although all 11 either had their convictions overturned or received pardons from Reagan’s successor, George H. W. Bush.

Walsh later complained bitterly that the Reagan and Bush administrations stymied his investigation, including through those pardons, which were pushed hard by Bush’s then-attorney general, William Barr. Barr later recalled: “I favored the broadest pardon authority.” Perhaps not coincidentally, Barr has now been called back to the DOJ by Trump to oversee the final stages of the Mueller investigation.

North, however, beat the conspiracy rap in court. While he was convicted on other counts, including for the destruction of documents, his convictions were vacated on appeal.

Richard Nixon, too, was accused of overseeing a vast conspiracy.

At the height of the Watergate scandal, Nixon was personally named as an “unindicted co-conspirator” by a grand jury along with seven of his top aides, in a plot to cover up the 1972 burglary of the Democratic National Committee headquarters.

In Watergate, the alleged conspiracy involved an orgy of lying, obstruction of justice, destruction of evidence, payoffs to the burglars, and promises of pardons to the men accused in the break-in.

Among the Watergate charges: Conspiracy to defraud the United States by interfering with the normal functioning of the FBI, the CIA and the Department of Justice. But special prosecutor Leon Jaworski convinced the grand jury that as a sitting president, Nixon couldn’t be indicted — a decision still widely believed to be DOJ policy to this day.

In both cases, special prosecutors ultimately alleged complex criminal conspiracies encircling the president. The charges in Iran-Contra centered around an elaborate international scheme. The Watergate conspiracy involved a cover-up following an initial crime.

Mueller’s work has echoes of both.

As with Watergate, the events that kickstarted the probe (the Watergate break-in, and Trump’s dalliance with Russia) took place in the heat of a presidential campaign.

As with Iran-Contra, the Russia investigation has turned on the question of whether the president himself has a hidden agenda with foreign interests (Reagan: Iran and Nicaragua; Trump: Russia).

In all three cases, lies about what really happened resulted in criminal charges.

A decision by Mueller to charge Americans with a conspiracy to defraud the United States would draw a through-line from Watergate and Iran-Contra to the Russia investigation.

“In Watergate, the core conspiracy charge was about dishonestly interfering with the way that government was supposed to work. That was also the core conspiracy charge against North and others in Iran-Contra,” said William Treanor, associate independent counsel under Walsh during the Iran-Contra affair.

“And that same statute remains an important potential tool for Mueller, because it doesn’t require an agreement to violate a criminal statute,” said Treanor, who’s now dean of the Georgetown University Law Center.

“If Mueller were to go that route, he’d be following in the footsteps of two of the three major investigations of the recent past: Walsh and the Watergate prosecutors,” Treanor said.

While the Mueller probe remains famously hard to predict, the details of his filings read to some legal experts like breadcrumbs leading toward a new conspiracy that may be charged against Americans in and around the Trump campaign.

The Stone indictment notes that on June 14, 2016, the Democratic National Committee announced it had been “hacked by Russian government actors,” and that the stolen files and emails were then posted online by WikiLeaks. The document then states that an unnamed “senior Trump campaign official was directed” to contact Stone about future releases.

These details make it increasingly hard to believe that the Trump campaign didn’t know the origins of the emails, said Barbara McQuade, former U.S. Attorney for the eastern district of Michigan. And the person who later “directed” a campaign official to reach out to Stone about future email dumps should have known WikiLeaks was working with Russia, she added.

That knowledge, coupled with the directive to contact Stone about future releases, could form the basis of a conspiracy charge, according to McQuade.

Stone’s indictment is full of details about the conduct of other people — an unusual approach if the target is just one man, according to Glenn Kirschner, a former assistant U.S. attorney for the District of Columbia.

“Stone’s indictment reads like a typical conspiracy indictment, only without the conspiracy charge,” Kirschner wrote.

Seth Waxman, a former federal prosecutor based in Washington, D.C., said Mueller has laid the groundwork to incorporate his previous allegations into one overarching, broad conspiracy.

Waxman pointed out that under the law, criminal conspiracies can evolve and take on new members as they develop. So a plot that began exclusively among Russians to hack the Democrats in 2015 could be said to have morphed and grown by mid-2016, when Americans may have joined in to help coordinate the release of the emails.

“I think Mueller has his eyes on one big prize: a vast conspiracy to interfere with the 2016 election,” Waxman said. “I think we’re going to see a new conspiracy in which the things that we’ve already seen charged are included.”

Two Paths

Mueller doesn’t even need to assert a new, broad, all-encompassing conspiracy to arrive at a collusion indictment. He’s already sketched out multiple Russian-led conspiracies — and he could start slotting Trump’s allies into them.

Nick Akerman, a former member of the Watergate prosecution team, said he thinks Mueller is more likely to add American names into the conspiracies he’s already laid out against Russians than sketch out a new one.

“If you take each of those indictments [of Russians], what I think you’re eventually going to see is the mirror image of those on the American side,” said Akerman.

Mueller has already singled out two separate groups of Russians for alleged roles in 2016, both accused of different conspiracies. One group has been accused of hacking into DNC computers and then turning over the stolen emails to WikiLeaks; the other, of running a multimillion-dollar social media campaign to influence voters.

The legal case against the social media trolls alleges a Klein conspiracy overseen by Yevgeny Prigozhin, a Russian catering tycoon so close to Russian President Vladimir Putin that he’s known by the nickname “Putin’s cook.”

“The conspiracy had as its object impairing, obstructing, and defeating the lawful governmental functions of the United States by dishonest means in order to enable the defendants to interfere with U.S. political and electoral processes, including the 2016 U.S. presidential election,” the text of the indictment reads.

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The Russian billionaire's company, Concord Management and Consulting LLC, lawyered up and fought back, arguing, for one thing, that Mueller’s theory of the case actually makes no sense.

But Judge Dabney Friedrich disagreed, ruling that interference with government agencies that restrict foreign actors and run elections — in this case, the Justice Department, the State Department and the Federal Election Commission — may indeed be criminal, and that Mueller's case could proceed.

The plot to hack the Democratic National Committee at the height of the 2016 presidential election provides another blueprint. In that case, a team of alleged Russian spies were charged with conspiracy to commit computer crimes for swiping Democratic emails.

Any American found to have explicitly encouraged or coordinated those efforts could be charged with conspiracy to violate the computer fraud and abuse act, said McQuade. The statute prohibits accessing a computer without authorization.

“If additional people are found to have been involved in that agreement, they can be added as co-conspirators,” said McQuade.

CLUES TO THE FUTURE

The alleged conspiracy to defraud the U.S. that Mueller has laid out against the Russian internet trolls provides a particularly powerful legal framework that could be expanded to ensnare others, including Americans, wrote Emma Kohse, editor-in-chief of the Harvard International Law Journal, and Benjamin Wittes, a senior fellow at the Brookings Institution, in an essay on the Lawfare legal blog.

“As we read Mueller’s theory under [the general conspiracy statute], as long as they acted knowingly to join a scheme to deceive the U.S. government to frustrate its enforcement authority and took some action in pursuit of that scheme, they too would be guilty,” Kohse and Wittes wrote. “Mueller’s theory involves a well-established legal doctrine that has been deployed in roughly analogous situations, and it is potentially extremely powerful.”

Some of the targeted Americans could be members of Trump’s family, according to Peter Zeidenberg, a former prosecutor and deputy special counsel for the prosecution of former White House aide Scooter Libby.

“Mueller is building a conspiracy case that's likely to ensnare Trump and his family,” Zeidenberg wrote in a December column for USA Today. “In short order, expect to see a case of conspiracy to interfere with the 2016 election to be laid out in court.”

Like with Watergate, an attempted cover-up of the Trump campaign’s ties to Russia could itself be the central thrust of a grand conspiracy charge against Trump’s team — if it can be shown that criminal lies and obstruction were somehow coordinated. That could happen even if no underlying conspiracy between the campaign and Russia is ever proved.

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But not everyone is convinced that a conspiracy charge is coming.

Professor Andrew Coan, author of “Prosecuting the President,” argues that the clues Mueller has dropped so far don’t provide enough evidence to conclude that he’s likely to end his work with a grand conspiracy indictment.

“Sometimes these investigations fall apart, and all the bricks don’t add up to a building,” Coan said. “Sometimes, they’re just a bunch of bricks.”

Renato Mariotti, a former prosecutor and close Mueller-watcher, argues that the special prosecutor is unlikely to roll out a grand conspiracy — for the simple reason that it would be extremely difficult to prove beyond a reasonable doubt.

After all, even behavior that appears to be a clumsy attempt at coordination might fall short of serving as evidence of conspiracy: Recall when Trump famously asked Russia to hack Hillary’s emails in the middle of the campaign.

By making that call during a press conference, Trump actually made it harder to prove in court that he was somehow intentionally conspiring with Russians in the hacking of her computer, which took place later that same day.

“I think most prosecutors would be reluctant to charge that, because he could say it was said in jest,” said McQuade.

Cover: President Donald Trump, listens during a meeting on trade talks between the U.S. and China in the Oval Office of the White House in Washington, D.C., U.S., on Thursday, Jan. 31, 2019. Photographer: Al Drago/Bloomberg via Getty Images