Bending Toward Justice: What we learned about Mueller’s investigation from indictment of Russians

Photo: (Jabin Botsford/The Washington Post via Getty Images; Kevin Lamarque/Reuters)

Robert Mueller told us plenty about Russia and their side of the conspiracy to get Donald Trump elected. 

Last Friday, Special Counsel Robert Mueller dropped a bombshell with a 37-page indictment against 13 Russian nationals and three Russian-related organizations for a years-long misinformation war against the United States and the 2016 election. As we explained here, Mueller charged the Russians with using fake identities and fake social action groups to sow discord in the U.S. on hot-button issues like immigration and Black Lives Matter, and to organize political activities on and offline in support of Donald Trump and against Hillary Clinton.

With a bit of distance from the breaking news, several questions arise about Mueller’s strategy and where his investigation is heading. We lay out those questions and attempt to answer them.

1. What’s the connection between the Internet Research Agency and the Russian government?

The U.S. intelligence community, including the FBI, CIA, and National Security Agency, concluded in January, 2017 that the Russian government directly and indirectly interfered with the 2016 election. Mueller’s indictment against the Russians doesn’t mention the Russian government. Instead, it focuses on the activities of the Internet Research Agency. But the indictment lays in detail that Yevgeny Prigozhin funded the IRA’s operations against the U.S., at $1.25 million a month. Prigozhin is a Russian oligarch who is close friends with Vladimir Putin and part of the Kremlin’s inner circle. In other words, nothing happens at the IRA with Putin’s support.

2. Why indict Russians who are unlikely to ever face trial in a U.S. court?

The U.S. does not have an extradition treaty with Russia. Extradition treaties are formal agreements between countries that describe the process by which a person living in country A, and charged with a crime in country B, can be sent from A to B to stand trial. The U.S. government may ask Putin to send the indicted Russians to the U.S. for trial, but there’s almost no chance he will agree, given his role the scheme.

Nevertheless, the indictment against the Russians serves other purposes for the Special Counsel’s investigation. It tells a detailed story to the American people about one of the ways Russia interfered with the 2016 election. The intelligence community’s report is a high-level, summary document. To protect classified information and what’s known as “methods and sources” (how the intelligence community gathers information), the report lacks any kind of detail on Russian’s propaganda warfare and the U.S. The indictment gives us those details.

The details are important for persuading the American people that Russian did, in fact, interfere with the 2016 election. Roughly 35% of Americans surveyed by CNN in December said that the Russian investigation is mainly an effort to discredit Trump, and not a serious issue that should be fully investigated.

The indictment also sends a signal to other people caught up in the Russian probe that Mueller’s office has the tools, resources, and people to uncover the depth of Russia’s interference. In other words, if you played a role in Russia’s efforts, Mueller will find out, and you will be charged if you don’t cooperate.

3. Who are the unindicted co-conspirators?

The indictment alleges a conspiracy among the 13 Russians to defraud the U.S. In explaining that conspiracy, the indictment states:

From in or around 2014 to the present, Defendants knowingly and intentionally conspired with each other (and with persons known and unknown to the Grand Jury) 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.

The language “and with other persons known and unknown to the Grand Jury” refers to other people who were in on the conspiracy but not charged — unindicted co-conspirators. This kind of language is often used as standard boilerplate in a conspiracy charge, to leave open the possibility that the ongoing investigation will lead to charges against others who participated.

But it is important to note that the language references others known to the Grand Jury. Who could that be referring to? Are there people involved in this conspiracy who are already cooperating with the Special Counsel’s office?  There’s a clue later on in the indictment, in the description of trips the Russians took to the U.S. for intelligence gathering and to plan activities. The indictment includes details on the Russians who traveled to the U.S., where they traveled, and what they did when here. Then it adds:

Another co-conspirator who worked for the ORGANIZATION traveled to Atlanta, Georgia from approximately November 26, 2014 through November 30, 2014. Following the trip, the co-conspirator provided POLOZOV a summary of his trip’s itinerary and expenses.

That suggests that one of the unindicted co-conspirators worked for the IRA and wasn’t charged because he or she is cooperating with Mueller.

4.  What is the conspiracy to defraud the United States?

The U.S. criminal code defines conspiracies to defraud the United States  to include those that impair, obstruct, or impede lawful government functions, such as carrying out a federal election. Mueller charged a conspiracy to obstruct the Federal Election Commission, the State Department, and the Justice Department. The FEC administers the Federal Election Campaign Act, which prohibits foreign nationals from making any contributions, expenditures, independent expenditures, or disbursements for electioneering communications. The State Department administers visas. The Justice Department administers the Foreign Agent Registration Act.

Campaign finance experts were surprised that Mueller charged only a conspiracy to violate the FECA, and not specific violations of the campaign finance law. Bob Bauer is an attorney for the Democratic Party and Democratic candidates, and expert in election and campaign finance law. In an analysis for Slate, Bauer laid out his theory on why Mueller chose that path:

Mueller and his team may have concluded that straight statutory campaign finance allegations rest on too much untested ground and would complicate what may well be the next phase of their investigation. This consideration would not affect the foreign national side of the case: Foreign nationals are plainly prohibited from spending in the manner detailed in the indictment. But how the law reaches American co-conspirators is less certain, and the special counsel’s theory of the case, pleading the campaign finance aspect of the case through conspiracy-to-defraud, may allow more securely for the prosecution of American actors.

You’ll recall that soon after Deputy Attorney General Rod Rosenstein announced the indictment, President Trump took to Twitter to claim vindication that neither he nor anyone else from his campaign were charged. But by Saturday, Trump was again railing against Mueller’s investigation, and went so far as to suggest that the FBI agents working with Mueller had so distracted the agency that the FBI failed to follow up on tips about the man who murdered 17 people at a high school in Parkland, Florida.

It may very well be that between Friday afternoon and Saturday, one of Trump’s lawyers explained to him what the conspiracy charge and the unindicted co-conspirator language means.

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