The Mueller Web of “Ongoing Matters”

In glossing over the long-awaited Mueller report, one may be struck by how Trump appears to have escaped through the holes in Mueller’s investigative web. For a president who agonized over the investigation and tried so vigorously to defang it, the report may now seem relatively fair game for a politician who has made an art of personal attacks and well poisoning: A “witch hunt” by a band of sore losers; a waste of millions of tax dollars just to say what Trump said all along: “no collusion”; a toothless panoply of more than 400 pages with names, dates, and testimony without the bravado of proving criminal conspiracy or obstruction of justice. But, while Trump claims total exoneration, the legal proceedings set in motion by Mueller may be steadily moving in the opposite direction.

The report states upfront that, “ … the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities….” Still, there is an important qualification: “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” Indeed, according to the report, there was enough evidence to predict that further crucial facts would be established pending the results of open FBI investigations. The report unabashedly states, “the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.”

So, according to Mueller, a thorough FBI investigation has presumably not to date been completed, and that if and when such an investigation is completed, evidence will emerge that establishes that Trump and his campaign engaged in actions that he “could have understood to be crimes” (in other words, for which he had criminal intent), or create personal and political “concerns” (such as impeachment). In the former case, these facts could be tantamount to establishing the criminal intent needed to establish criminal conspiracy.

This is of momentous import because there are numerous redactions in the Mueller report that are labeled “Harm to Ongoing Matter” (emphasis added). As such, Trump is not out of the web, by any means, regarding criminal conspiracy.

Let’s speculate a bit about what facts might establish criminal conspiracy. Here is but one possible case scenario, which I offer only as an illustration of how the investigative web Mueller has woven might lead to further incriminating facts.

At a highly redacted juncture, the report states, “ … shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.” Just who was on that call? Due to heavy redaction, the answer is presently unpublished, but it likely had something to do with the stolen emails dumped by WikiLeaks. Preceding the latter remark is a statement about the Trump campaign’s intention to use these emails as part of its campaign strategy: “According to Gates, by the late summer of 2016, the Trump Campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks.” So, according to the report, the Trump campaign had a heads up about the (possible) release of the Clinton emails by WikiLeaks, and it was ready and willing to support the Russians by using them to interfere with the election. This starts to sound a lot like conspiracy!

But here is where the crescendo rises and falls, for the smoking gun absent here would be a meeting of the minds to coordinate the effort. Who was the alleged intermediary between Trump and WikiLeaks? Who was on that call, the details of which have been redacted? Here is also where “ongoing matters” could bear substantially on establishing criminal conspiracy.

So, what ongoing matters might these be?

Speaking under oath before the House Oversight Committee on February 27, 2019, former Trump personal attorney Michael Cohen, stated,

Mr. Trump knew from Roger Stone in advance about the WikiLeaks drop of emails. In July 2016, days before the Democratic convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speakerphone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange and that Mr. Assange told Mr. Stone that, within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign. Mr. Trump responded by stating to the effect of “wouldn’t that be great.”

Was the mystery caller alluded to in the Mueller report none other than long-time Trump friend and former campaign advisor Roger Stone? But Trump just “doesn’t recall” speaking about WikiLeaks with Stone: “I spoke by telephone with Roger Stone from time to time during the campaign,” said Trump in response to one of Mueller’s written questions. “I have no recollection of the specifics of any conversations I had with Mr. Stone between June 1, 2016 and November 8, 2016. I do not recall discussing WikiLeaks with him.”

Stone, however, is set to go on trial on November 5 in the U.S. District Court in Washington, D.C., on charges of lying to Congress and obstructing the Russia investigations. According to the indictment, “Stone made multiple false statements to HPSCI [House of Representatives Select Committee on Intelligence] about his interactions regarding Organization 1 [WikiLeaks], and falsely denied possessing records that contained evidence of these interactions….”

If the prosecution proves the above charges, it may provide more fuel for the fire of criminal conspiracy and help to independently corroborate that Stone was an intermediary between Trump and WikiLeaks. If this happens, then it could establish coordination as well as a clear intention to commit a crime through a Julian Assange-Stone-Trump conspiratorial chain.

Viewed in this light, Mueller’s report may set the stage for a carefully constructed, multipronged legal strategy. As the plot of this seedy noir continues to unfold, step by step, inch by inch, and a “thorough” set of FBI investigations play out in federal court, Trump and his team of possible conspirators may find less and less reason to celebrate.