In an interview yesterday, George Stephanopoulos asked President Trump’s lawyer Rudy Giuliani if Roger Stone ever gave Trump a “heads-up” about forthcoming WikiLeaks email publications. “No, he didn’t, no,” he replied. But then Giuliani seemed to reconsider his certitude almost immediately. He blinked, and then softened his denial — “I don’t believe so” — before immediately transitioning into a conditional defense of the very charge he had been asked to deny: “But again, if Roger Stone gave anybody a heads-up about WikiLeaks’ leaks, that’s not a crime. It would be like giving him a heads-up that the Times is going to print something. One the — the crime, this is why this thing is so weird, strange. The crime is conspiracy to hack; collusion is not a crime; it doesn’t exist.”
If you understand the facts and the law in this case, this much should be clear: Trump is almost certainly guilty of both collusion and a crime. And Giuliani’s backpedalling defense reveals that he is no longer confident Trump’s denials will hold.
The Trumpian mantra, “collusion is not a crime,” is a misleading legalism. Think of “collusion” and “crimes” as two large circles in a Venn diagram with a small overlap. Trump is being investigated for many crimes, and his campaign obviously colluded with Russia in multiple ways. Some of the alleged crimes, the overlapping portion of the Venn diagram, involve cooperating with the Russian election intervention. At least one such crime has already been identified by the special counsel, back in July: “conspiracy to commit an offense against the United States.” Specifically, the indictment explained, the “object of the conspiracy was to hack into the computers of U.S. persons and entities involved in the 2016 U.S. presidential election, steal documents from those computers, and stage releases of the stolen documents to interfere with the 2016 U.S. presidential election.”
Mueller’s investigation began by tying together the email hackers with Russian intelligence and WikiLeaks. Stone is the most obvious link in the chain that would connect Trump himself to the conspiracy. Stone, working through intermediaries, communicated with WikiLeaks during the election. Stone also spoke regularly with Trump throughout the campaign.
At the time that Stone’s reported contacts with WikiLeaks were occurring, the United States government had already identified Russia as the culprit in the hacking of Democratic emails. Trump recognized this fact by publicly calling on Russia to hack other missing Democratic emails.
Last month’s draft offense of Jerome Corsi, one of the back-channel contacts between Stone and WikiLeaks, gave some hints of how the collusion worked. As Ryan Goodman and Bob Bauer explained, WikiLeaks had obtained a Democratic email that appeared (or could be twisted) to imply that the campaign had concerns about Hillary Clinton’s health. WikiLeaks let the Trump campaign know about its plan to release this email, and the Trump campaign accordingly circulated rumors about Clinton’s health in order to maximize the impact of this disclosure.
The only real mystery remaining in the conspiracy is whether Mueller can implicate Trump himself. This probably requires Mueller to prove that Stone informed Trump about his doings during the campaign. For Stone to have undertaken the effort to establish a back channel to WikiLeaks and not tell Trump about his good works would have been totally bizarre, knowing anything about how either man operates.
During the campaign, Stone was jockeying among many advisers for Trump’s ear and approval. Neither man has any discretion or respect for legal or ethical scruples. Stone has publicly vowed not to “roll” on Trump, insisting, “John Dean I am not,” a historical comparison that implies that Stone possesses incriminating information against the president of the United States. (John Dean was the former lawyer for President Nixon, and who testified against his boss’s criminal acts.)
Assuming Stone maintains the omertà — this is one of the few pieces of mafia lingo Trump has not yet used in public — Mueller would have to find evidence of their communication some other way. Maybe Trump told another one of his advisers who is now cooperating with Mueller. Or maybe some electronic record of the communication exists.
Giuliani’s comments seem to indicate that he knows that Trump did have a heads-up from Stone, but does not know if Mueller will be able to prove it. Hence his competing impulses to deny the accusation but to prepare a fallback defense in case that denial becomes inoperable. Giuliani’s argument to Stephanopoulos is that working with WikiLeaks would be just like talking with the New York Times. Of course, the New York Times does not routinely engage in criminal acts in order to obtain its news reports, and it is also not the tool of a hostile foreign intelligence service. Giuliani’s defense has retreated right up to the line where it crosses into a confession of guilt.