The Mueller Indictment: The Beginning of the End or the End of the Beginning?March 14, 2018 in Uncategorized
On 16 February, Special Counsel Robert Mueller filed an indictment against thirteen Russian nationals and three Russian companies relating to an online influence campaign targeting the 2016 Presidential Election and the U.S. political system more generally. The filing was not surprising — the U.S. intelligence community published their ‘high confidence’ assessment of the operation in January 2017 — but the details were nonetheless dramatic. They include a global political interference campaign (‘Project Lakhta’), an organisation spearheading this campaign (the ‘Internet Research Agency’), a specialist unit focused on the 2016 election (‘the translator project’), hundreds of employees and, starting in 2014, the physical set-up of an intelligence collection team inside U.S. territory.
Whilst the indictment helped to dial down the divisiveness of the Russian threat, it was nevertheless also interpreted through the prism of the politically-charged ‘Special Counsel Watch’: daily speculation as to the direction and conclusion of the special counsel investigation. This was especially the case given Deputy Attorney General Rod Rosenstein’s statement before the press that there is “No allegation in this indictment that any American had any knowledge” of Russia’s operation — an evident reference to the investigation into Trump campaign collusion. Sean Hannity carried the headline ‘Vindicated’ on his Fox News show on the evening of the indictment, whilst President Trump would tweet his “vindication” the following day. Such matters were not left to partisan noise-makers, however. Debate has ensued among legal commentators over whether, on the central questions of Russian interference and Trump-Russia collusion, the indictment signals an approaching conclusion to the special counsel investigation or the preliminary building blocks of a larger criminal conspiracy. Paul Rosenzweig, for instance, in a special edition Lawfare podcast, argued that the mass of detail within the document indicates it is a “speaking indictment” that tells a narrative “akin to a final report”, given the likely absence of a formal ‘Muller Report.’ For this reason, amongst others, Mr Rosenzweig argues, it is likely that “We’re closer to the end than to the beginning.”
What appears more likely, however, is the opposite. Importantly, the indictment describes only the ‘third prong’ of the Russian operation: its online disinformation campaign. The document does not touch upon the first prong: the direct tampering of U.S. election infrastructure, nor the hacking and dissemination of internal Democratic National Committee (DNC) communications (the second prong). All three were officially confirmed by the U.S. intelligence community in its January 2017 assessment of the Russian operation, with the second stated explicitly by the Director of National Intelligence on October 7, 2016. Mr Mueller could of course be without admissible evidence for these latter two prongs, but this seems doubtful given the ‘high confidence’ assessment of the January 2017 report. Thus, the charge that the indictment is a weak response to the Russian operation, levelled by those such as former U.S. Attorney for the Southern District of New York, Andrew McCarthy, seems premature. Instead, it is reasonable to concur with Mr McCarthy’s successor, Preet Bharara, that Mr Mueller has more indictments in store.
It is also noteworthy that the document is silent on the question of political collusion, whether by the Trump campaign or the Russian government. In some quarters, the clear absence of Trump campaign collusion in relation to a detailed finding of Russian election interference has fuelled speculation that the indictment foreshadows Mr Muller’s more general conclusion: that Trump campaign involvement in the Russian operation was negligible. Yet the indictment does not refer to Russian intelligence, nor to Russian government supervision of the operation. Instead, the funder and director of the Internet Research Agency, Yevgeny Prigozhin, is charged as a private Russian citizen, and any ties he has to Vladimir Putin and the Russian government (there are many) are referred to only implicitly. This silence is again a departure from the U.S. intelligence community’s ‘high confidence’ 2017 assessment that referred to “Moscow’s influence campaign” directed by “Putin and the Russian government.” It is doubtful, therefore, that Mr Mueller believes the online influence operation was exclusively the work of private actors friendly to the Russian government. What appears more likely is that the indictment is intended to be distinctly apolitical: a building-block approach intended to minimise exposure of Russian government sources whilst maximising public disclosure of the operation. In recent weeks, two ways have been posited as to how charges against additional political actors might later be placed on-top of this preparatory block:
The first was floated in a Lawfare article by Emma Kohse and Benjamin Wittes, who argued that Mr Mueller’s unusual charge against thirteen Russian nationals — that they sought to “obstruct the lawful functions of the United States through fraud and deceit” (18 U.S.C. §371) — might in fact be preparatory ground for charges relating to collusion filed against additional actors. As Susan Hennesy and Wittes once argued in Foreign Policy magazine, collusion is a thin and problematic area in U.S. statute, consequently meaning, “in and of itself and to the extent it took place, [collusion] is a political problem, not a legal one.” However, returning to Kohse and Wittes’ argument, if additional actors did in fact aid these Russian nationals, 18 U.S.C. §371 may plausibly be expanded onto these persons. Such a charge would require a much less problematic burden of proof orientated around obstruction of U.S. government functions, rather than conspiracy to organise the influence campaign itself. Although it would be irresponsible to speculate as to how a prosecutor would evaluate a person’s conduct without knowledge of the details of the allegation, as Kohse and Wittes make clear, it is reasonable to conclude that Mr Mueller’s indictment does not draw the matter to a close.
The second means was floated by David Kris, former Assistant Attorney General for National Security. In a Lawfare article entitled ‘Law Enforcement as a Counterintelligence Tool’, Mr Kris argued that Mr Mueller’s indictment may have been partly designed to build public consensus for future prosecutorial and non-prosecutorial action against actors external to the indictment. Public exposure, Kris argues, can be a damaging means of disrupting influence operations where such action is designed to remain covert, whilst also providing a productive means for alerting public attention to the larger threat and generating debate as to how to deter future conduct. As such, the indictment may serve as a building-block approach with which Mr Mueller can recommend future measures against actors nominally external to the operation detailed in the document.
It is of course impossible to accurately speculate as to the direction of the Mueller investigation, given the success of its operational security. It is reasonable to assess, however, that suggestions that Mr Mueller has reached the final stages of his investigation into Russian interference and Trump campaign collusion are likely premature.