Mueller’s Interest in Obstruction Is Probably Just the Tip of the Iceberg

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Remember, obstruction is just one small part of his mandate.

One takeaway from Donald Trump’s unhinged Twitter meltdown over the Robert Mueller investigation this past weekend — aside from indications that the president is increasingly isolated, under siege, and out of sorts — is that his legal team is in disarray and can’t seem to put him at ease, despite repeated assurances that he will be vindicated in the end.

Trump has been getting more and more aggressive against the special counsel, and according to the New York Times, he may drop his lawyer Ty Cobb, who’s advocated for cooperating with Mueller. The addition of a new attorney-cum–attack dog to his circle of legal defenders — Joseph diGenova, a former U.S. attorney who has espoused some of Trump’s FBI conspiracy theories on Fox News — seems designed to at least give him peace of mind that he has another lawyerly type in his corner.

This backup comes at a pivotal time for Trump. The Washington Post reported on Monday that his lawyers have turned over to Mueller a report that is the equivalent of a connect-the-dots coloring book: a blueprint of key events under investigation. The purpose of these White House “summaries” is to limit the breadth of Mueller’s questioning should Trump sit down for an interview — a major minefield that, as I have written before, no sensible lawyer would allow a client like Trump to step onto.

This is clearly damage control. As the Post indicates, these written materials zero in on the dismissals of FBI Director James Comey and National Security Adviser Michael Flynn, which suggests that the special counsel has an interest in the president’s state of mind during these events — the thing that matters to a prosecutor who is looking at the potential obstruction of an ongoing investigation. What was really going through Trump’s head when he fired Comey? And why did he ask him to go easy on Flynn, who had enough demons to warrant being in the FBI’s line of sight?

Comey, as you may recall, was fired before the true extent of the FBI’s investigation into Russia’s 2016 election interference (which Mueller took over) was publicly known. Andrew McCabe’s dismissal last Friday, on the other hand, happened after “this Russia thing,” as Trump once called it, had already yielded several indictments, guilty pleas, and cooperation agreements with a number of the president’s men. That McCabe was caught in the undertow of Trump’s vindictiveness was only a function of his proximity to Comey; he was one of the three senior advisers whom the fired FBI director briefed on his troubling interactions with the president, including his demands for loyalty. Besmirching McCabe, in Trump’s mind, serves to besmirch the testimony of Mueller’s star witness on obstruction. This may yet be another miscalculation on Trump’s part, as that public trial will almost certainly never happen.

Mueller’s prospective obstruction case, captivating though it may be to political reporters and those who yearn for the president’s downfall, is still only a tiny slice of the special counsel’s mandate. You can count me among the skeptics who doubt that Mueller will ever make such a case in a court of law — even in the face of reports, like one from Axios on Monday, suggesting the opposite. If Mueller’s probe is to retain its legitimacy, which it has in spades, it will be by charging ahead with what it’s already done so well: uncovering the extent to which Russia worked alone or in tandem with Trump campaign operatives to boost Trump’s chances at the presidency.

The word that’s been used and abused to describe this synergy between the Kremlin and the Trump camp is collusion, but Mueller has given us a better, more legally grounded term: conspiracy. Last month, Rick Gates, Trump’s deputy campaign manager and a longtime associate of Paul Manafort, became the first person in Mueller’s crosshairs to plead guilty to one count of conspiracy to defraud the United States. This curious, catchall offense also appeared in the February indictment of 13 Russian trolls, all of whom were charged with “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.”

So far, that’s as close as Mueller has come to identifying a political crime in any of his public prosecutions. In Gates’s case, he “together with others” conspired to interfere with the law-enforcement functions of the Department of Justice and the Treasury Department, each of which is responsible for ensuring lobbyists register with the government whenever they represent foreign interests or seeing that taxpayers properly report taxable income they earned overseas. Because Gates pleaded guilty to doing neither, he has conspired to defraud his own country and now faces the very real prospect of time in prison. Not even his cooperation with Mueller is likely to spare him.

Which brings us to this past weekend’s revelations about the role Cambridge Analytica, the data-analytics firm closely associated with Steve Bannon and the Trump campaign, played during the presidential election. Twin reports in the New York Times and The Guardian shed light on a staggering data-mining operation that resulted in the firm improperly obtaining tens of millions of Facebook profiles, which it then exploited for political micro-targeting. Or as Christopher Wylie, the whistle-blower who leaked this information put it, the technology he helped create with Cambridge Analytica was “Steve Bannon’s psychological warfare mindfuck tool.”

There’s nothing criminal about swaying voters, and neither the Times nor the Guardian account is conclusive as to how Cambridge Analytica may have aided Russia’s election meddling, if at all. But this bit in the paper of record suggests the special counsel is already on to something: “While the substance of Mr. Mueller’s interest is a closely guarded secret, documents viewed by the Times indicate that the firm’s British affiliate claims to have worked in Russia and Ukraine.” Mueller, for his part, has already asked the firm for the emails of any employees who did work on behalf of the Trump campaign. And even Julian Assange has accused Cambridge Analytica’s CEO of attempting to obtain from WikiLeaks damaging emails belonging to Hillary Clinton.

So there’s a lot we don’t yet know. But based on the precedent Mueller has already set, it wouldn’t be a stretch to expect his office to bring a fresh round of federal conspiracy charges against actors — whether that be Assange, executives at Cambridge Analytica, or other intermediaries — who attempted to impair the lawful functions of the government by concealing activities that they should’ve disclosed to, say, the Federal Election Commission or the Justice Department. “A method that makes uses of innocent individuals or businesses to reach and defraud the United States is not, for that reason, beyond the scope” of the law of conspiracy, the Supreme Court said some 30 years ago.

Unlike collusion, which makes for good sound bites but not real cases, conspiracy has deep roots in American law. As independent journalist Marcy Wheeler has laid out, even Jared Kushner may be on the hook for it. If the last ten months or so of the Mueller investigation have shown us anything, it is the tangled web of lies and cover-ups the Trump campaign weaved to hide its dealings with Russia. Don’t be surprised if Mueller untangles yet more of this mess and presents us with more indictments against conspirators in the U.S. or abroad.

Mueller’s Obstruction Focus Is Likely the Tip of the Iceberg