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Excerpt: "Recall the Watergate cliche that the cover-up is worse than the crime. That may have been true then."

Donald Trump. (image: Elizabeth Brockway/Daily Beast)
Donald Trump. (image: Elizabeth Brockway/Daily Beast)

This Time, the Crime Is Worse Than the Coverup

By Jonathan Alter and Nick Akerman, The Daily Beast

11 February 18

In Watergate, it was the cover-up, not the crime. But in Russiagate, that stands to be turned on its head. We already know a lot—and we can be sure Mueller knows more.

ecall the Watergate cliché that the cover-up is worse than the crime. That may have been true then. While it was never established that President Nixon knew in advance about the break-in at the Watergate complex, he was forced to resign after proof emerged that he used the CIA to obstruct the FBI investigation.

In the Russia scandal, special counsel Robert Mueller has credible proof of obstruction of justice—i.e., the cover-up. But in a highly politicized climate, where “memos” and insults are weapons of distraction, that won’t likely be enough. Even if Democrats take control of Congress in November, most Republicans—like most juries in run-of-the-mill criminal cases—will demand significant evidence of an underlying crime as a motive for the obstruction before turning on President Trump, much less voting in the Senate to remove him from office.

While Mueller and his team don’t leak, signs that such evidence exists are clear from news reports, which contain only a tiny portion of what the special counsel’s office possesses. The fragmentary and often disconnected nature of those reports obscures the reasonable supposition that Mueller is well on his way to detailing conspiracy, wire fraud, illegal foreign campaign contributions, or all three. During Watergate, the special prosecutor had most of the evidence that doomed Nixon at least nine months before his August 9, 1974 resignation. Mueller, too, likely has the goods already, even without “smoking gun” tapes.

One tip-off was in Michael Flynn’s December 1 “allocution”—his signed submission to the court as part of his guilty plea to making false statements to the FBI on January 24, 2017. It received almost no media attention but suggested the nature of the criminal conspiracy that would likely be at the heart of Mueller’s prosecution.

Flynn didn’t just vaguely admit he lied. The law doesn’t allow that. He admitted in writing that his lie “had a material impact” on the FBI’s probe “into the existence of any links or coordination between individuals associated with the [Trump] Campaign and Russia’s efforts to intervene in the 2016 election.”

The conspiracy case--the heart of Mueller’s efforts-- almost certainly boils down to an old-fashioned quid pro quo. Flynn’s “quid”—the substance of his recorded conversations with Russian Ambassador Sergey Kislyak— was lifting the sanctions that President Obama imposed on Russia in late 2016 and the earlier sanctions related to Russia’s invasion of the Ukraine. The “quo” was collusion (“conspiracy” in legal terms) with Russians to harm Hillary Clinton’s 2016 campaign, which Flynn effectively admitted was “material” to his lies after the election. Anyone associated with this deal is in deep legal trouble.

The conspiracy started with Russians violating the federal computer crime statute, the Computer Fraud and Abuse Act, by hacking into the computers at the Democratic National Committee and stealing emails that were then distributed publicly by Guccifer 2.0 and Wikileaks—both linked to Russians— in ways that hurt Clinton. According to the Department of Homeland Security, Russia also tried to penetrate the voting systems of 21 states.

These actions would also violate the federal criminal statute that bars foreign nationals from offering anything of value in a presidential campaign. Every party to such illegal acts is criminally liable.

There are also potential violations of the federal wire fraud statute. The evidence of a scheme to defraud? We know that Russia’s “active measures” included creating thousands of fictitious Twitter and Facebook accounts to generate fake news targeted to suppress the Clinton vote. Campaign officials are criminally liable if Mueller and his team prove an overlap between the illegal Russian fake news posts and the Trump campaign’s routine micro-targeted negative messages--a painstaking but manageable set of data comparisons.

In addition, the special counsel is examining whether a Russian politician with connections to organized crime, Alexander Torshin, routed an illegal campaign contribution to Trump through the NRA, which is relatively easy to trace. While not his primary assignment, Mueller might also uncover evidence of money laundering or other business-related corruption on the part of the Trump Organization. You can bet he has examined Trump’s tax returns.


Conspiracy is a much broader crime than is generally understood. The guidelines for judges who instruct juries say that the prosecution need only prove that there was “a mutual understanding, either spoken or unspoken, [Emphasis added] between two or more people to cooperate with each other to accomplish an unlawful act.”

It doesn’t matter whether the “mutual understanding” was before, during or after the crime was committed. “It is not necessary that a defendant be fully informed of all the details of the conspiracy, or all of its participants,” the model jury instructions continue. “You need not find that the alleged members of the conspiracy met together and entered into any express or formal agreement.”

Under the so-called “doctrine of willful blindness,” reinforced by Supreme Court Justice Samuel Alito in a majority opinion in 2011, juries are instructed to “consider whether the defendant deliberately closed his eyes to what would otherwise be obvious to him.”

“The key question,” the jury instruction concludes, “is whether the defendant joined the conspiracy with an awareness of at least some of the basic aims and purposes of the unlawful agreement.” Don Jr.’s excitement over receiving Russian dirt on Clinton, Jared Kushner’s interactions with Cambridge Analytica and thus with Wikileaks, and Trump’s knowledge of these or other ties to Russians and his use of that knowledge in the campaign, all suggest such “awareness.”

Two other legal concepts are relevant. Much of the obstruction case—from Trump interfering with the FBI probe to re-writing his son’s statement aboard Air Force One after revelations about Don Jr.’s meeting with the Russians--revolves around the president’s concern that he had something to hide, also known as “consciousness of guilt.” He also might be charged as “an accessory after the fact,” which requires only that the defendant “receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension.”  

Now consider just a bit of what has emerged about “mutual understanding,” “willful blindness,” “awareness,” “assists” and “consciousness of guilt” in the Trump-Russia case, which is in turn a fraction of what Mueller knows. As in any criminal case, the timeline is critical:

April 26, 2016: George Papadopoulos, whom Trump named as one of his “top five” foreign policy advisers, learns that the Russians had possession of the DNC emails. He passes word of this to others in the campaign. Because of a “mutual understanding,” no one calls the FBI.

Mid-May: Papadopoulos tells an Australian diplomat in London that the Russians have compromising emails on Clinton. The diplomat properly informs his superiors, who--unlike Trump campaign officials--recognizes his legal responsibilities under American law to notify U.S. authorities.

June 9: At a meeting at Trump Tower previewed for the campaign as “part of Russia and its government’s support for Mr. Trump,” Donald Trump Jr. listens as well-connected Russians offer damaging information about Clinton. Jared Kushner and Paul Manafort both say they left early, suggesting “awareness” of, or “willful blindness” to, crimes that were underway. Again, no one contacts the FBI.

Mid-June: Kushner—assuming control of the campaign’s digital operations— hires Cambridge Analytica, which coordinates with Wikileaks, suggesting a possible “mutual understanding” of what Wikileaks will do.

July 14: At the Republican National Convention, the Trump campaign deletes a plank in the party platform that condemns Russia for invading Ukraine, and rejects a proposal for increased sanctions, bolstering the case for the quid pro quo that is the crux of the case.

July 22: On the eve of the Democratic Convention, Wikileaks releases damaging Democratic emails received from the Russians, implicating Wikileaks in the criminal conspiracy.

July 27: In a speech, Trump says, "By the way, if they [Russians] hacked, they probably have her 33,000 emails. I hope they do.” Trump later said he was joking but it reinforces his “awareness” of an unlawful act.

August 21: Roger Stone, a longtime friend and adviser to Trump, shows knowledge of the conspiracy by tweeting, "Trust me, it will soon be Podesta's time in the barrel. #CrookedHillary,” in reference to Clinton campaign chair John Podesta, and Stone admits having communicated with both Guccifer 2.0 and Wikileaks in July, all elements of the conspiracy.

October 7: Within hours of the release of the Access Hollywood tape, which dealt a serious blow to the Trump campaign, Wikileaks releases the first in a series of 60,000 emails belonging to Podesta. Wikileaks effectively acts as an arm of the Trump campaign in a “mutual understanding” to deflect attention away from the sex scandal.

December 29: Deputy National Security Adviser-designate K.T. McFarland emails a colleague about the aftermath of outgoing President Obama’s implementation of sanctions: “If there is a tit-for-tat escalation, Trump will have difficulty improving relations with Russia, which has just thrown USA election to him.” (emphasis added) The same day, Flynn tells Kislyak not to escalate because Trump is coming into office with a new, much friendlier policy, thereby fulfilling Trump’s end of the corrupt deal.

Even without knowing any of what Mueller has learned from the many witnesses he has secretly brought before the grand jury, this timeline—and the jury instructions that would accompany it at trial— already offer a strong roadmap for prosecutors. The conspiracy charges that arise from it will likely send some of Trump’s friends and relatives to jail. And they won’t look so good for the president, either, if presented next year at his impeachment trial in the Senate. your social media marketing partner


A note of caution regarding our comment sections:

For months a stream of media reports have warned of coordinated propaganda efforts targeting political websites based in the U.S., particularly in the run-up to the 2016 presidential election.

We too were alarmed at the patterns we were, and still are, seeing. It is clear that the provocateurs are far more savvy, disciplined, and purposeful than anything we have ever experienced before.

It is also clear that we still have elements of the same activity in our article discussion forums at this time.

We have hosted and encouraged reader expression since the turn of the century. The comments of our readers are the most vibrant, best-used interactive feature at Reader Supported News. Accordingly, we are strongly resistant to interrupting those services.

It is, however, important to note that in all likelihood hardened operatives are attempting to shape the dialog our community seeks to engage in.

Adapt and overcome.

Marc Ash
Founder, Reader Supported News

+44 # chrisconno 2018-02-11 11:09
We can only hope Mueller's case will get Trump impeached and convicted. Trump and bubbles deserve nothing less than hard time for corrupting our system of democracy. In some other words, hurting a whole lot of people along the way.
-44 # PABLO DIABLO 2018-02-11 11:24
First of all, one of the Articles of Impeachment charged Nixon with Treason. More important than "Coverup" as Treason carries a mandatory firing squad under Washington D.C. law. No one wanted to shoot Nixon so they played up the "Coverup" angle. NOTHING in your article shows "proof" of a crime. What BULLSHIT. Be afraid. BE REAL AFRAID. THE RUSSIANS ARE COMING. Eighteen months investigation and not yet one shred of evidence about hacking election. Of course, lots of dirty business deals. Always were. A piss-off distraction from the Republicans getting every wet dream they ever fantasized. Deregulate Wall Street, the environmental regulations, privatize education, cut taxes on corporations and the rich, and MASSIVE military buildup. Time to WAKE UP AMERICA. It's not really about "THE RUSSIANS". Or "THE COVERUP". WAKE UP. Trump didn't win, Hillary lost. And, she was quite capable of losing (without Russian help).
+3 # MidwestDick 2018-02-11 16:10
There were three articles.
find them here;
No treason.
+9 # MidwestDick 2018-02-11 16:19
This article lists a number of events, each verifiable in the press, which, taken together, provide an air-tight case.
They show conclusively that the President participated in the theft of documents from Podesta personally and from the DNC.
They show that the President rewarded other participants in this massive and significant theft with real and valuable goods or services, indicating that he was among those driving the conspiracy. This case is solid. Overwhelming proof exists.
0 # vicnada 2018-02-12 08:17
What's striking in reading comments following a well-researched article like this is the depth of cynicism on display: " Of course, lots of dirty business deals. Always were. A piss-off distraction from the Republicans getting every wet dream they ever fantasized. Deregulate Wall Street, the environmental regulations, privatize education, cut taxes on corporations and the rich, and MASSIVE military buildup." All this to UNDERMINE, not support, the conclusions of the reporters. We all understand that this is not yet time for "proof". Mueller's report has yet to issue.
+5 # Observer 47 2018-02-12 10:39
Many salient points here. Both parties are quite capable of hacking elections, with no aid from Russia (see blackboxvoting. org, or the 2004 Presidential election, or the 2016 Democratic primaries). As you say, Pablo, the real crimes that are happening are being obscured by the obsession with Trump/Russia, which, in the end, is a minor issue compared with the widespread destruction---t o the environment, healthcare, education, income equality, you name it---that continues to be wreaked in this country as we speak.
+1 # California Neal 2018-02-13 11:07
Few if any of us are not concerned about the widespread destruction the Trump Administration is wreaking. The importance of these matters in no way way means we should just accept the massive--& continuing--Rus sian intervention in our elections, which are undermining our democratic form of government. If Russia intervened in the 2016 election, & if the Trump campaign collaborated with them, either or these things are of immense importance. It appears both happened. Sure, Hillary's campaign failed to win the Electoral College, & sure, Trump's campaign failed to win the popular vote. But that's besides the point. The point is an aggressive foreign government interfered with our democratic election (which has enough problems already with GOP interference) & Trump's colluding was not only criminal, it likely won him the election. Without these things, we wouldn't have an Administration dedicated to the the destruction of so many things we hold dear.
0 # Robbee 2018-02-12 12:17
Quoting PABLO DIABLO 2018-02-11 11:24:
Trump didn't win, Hillary lost.

- these are the kinda words that make me wanna throw up? - here's the inescapable problem -

hillary couldn't win, without dickhead losing!
hillary couldn't lose, without dickhead winning!

it was the monumental failure of 2016 comments here on rsn, to consider the ramifications of a "dickhead" becoming prez, that enabled dickhead to win - "how bad could he be? how could he win the presidency, go to washington, get ground down by the system and not behave like a real president? never hillary!"

simply put, 2016 comments were too full of hillary hate, to hate dickhead too! comments here are low energy! we bury the lead!
+3 # California Neal 2018-02-13 11:33
It was really disappointing to realize during the campaign that so many readers had no appreciation of the destruction a GOP President would do--especially Donald Trump--even just in terms of the Supreme Court.

Now Neil Gorsuch is on the court. While on the Court of Appeals, he thought it was OK for a truck driver to be fired for leaving his disabled truck, EVEN THOUGH.HE WOULD HAVE FROZEN TO DEATH. That's how pro-employer Gorsuch is. Too many readers failed to understand the importance of the courts to the regular folks of this country.

So many readers jumped on Robert Reich for explaining the necessity of voting for HRC. As much as I detest her, I did just that, to defeat DJT & to rescue the Supreme Court.

People had honorable reasons for making other decisions, although I don't ever think failing to vote at all is a good decision. I just hope, in retrospect, some of you can see we were actually stuck with only 1 choice in 2016, because we absolutely had to avoid the disaster that then struck.
0 # kyzipster 2018-02-13 16:54
Sanders certainly saw the importance of voting for the lesser of two evils, because it's substantially 'lesser.'

My best argument for holding one's nose and voting anyway, is the fact that progressive protest has a bigger impact when Democrats hold the White House. It illustrates that the entire establishment is corrupt, that it's not about partisanship. When a right-wing extremist is at the helm, it all appears partisan and the next establishment Democrat looks like a real liberal in comparison. We have to protest the injustices of right-wing extremism, we have no choice. It's why the Culture War works so well.

Occupy Wall Street, Black Lives Matters, Standing Rock. I think they have all been very powerful movements that have shifted the collective psyche a bit, even changed the debate in the MSM. More powerful because Obama was in the White House imo. We can't measure but I would argue that OWS paved the way for Sanders doing so well. There was little debate about income inequality in the MSM before OWS, today it's prominent and when polled, the younger generation seems to be embracing the very word 'socialism.' That's no small thing. We shouldn't look at Sanders campaign as a failure, it's a sign of things to come imo. Yes, the DNC screwed him over, and all the rest..
-35 # Rodion Raskolnikov 2018-02-11 11:33
Now we are seeing the new "theme of the weak" -- the underlying crime of Trump-Russia collusion will give the obstruction of justice claim some legs to stand on.

I saw the end of Chuck Todd's Meet the Press today. He was interviewing Clint Watts, the leading hysteriac of the New Cold Warriors. Todd asked him what the three or four next steps should be after "the catastrophic event of Russia's interference in the 2016 elections." He likened the Russian total destruction of American democracy to 9-11. He asked Watts what we can do to protect ourselves. Watts flubbed and floundered around. All he said was that any senator or congressperson who has spoken out against Russia will be targeted and removed in the Nov. election.

This article is wrong about what Flynn admitted to.

This is also wrong: "hacking into the computers at the Democratic National Committee and stealing emails that were then distributed publicly by Guccifer 2.0 and Wikileaks—both linked to Russians."

We don't know what Mueller is up to. There seems to be so much chaos at DOJ that he may be unable to release anything until his bosses get settled down. But it seems rather stupid for him to go to court with charges that are factually easy to refute. The FBI does that against poor defendants who cannot afford aggressive lawyers. But that won't work in Trump's case.

Theme of the week -- The utter catastrophe the US suffered as a result of Russian total destruction of US democracy."
+8 # MidwestDick 2018-02-11 16:29
It is important that those of us who deplore the policy of cold war conflict with our Russian friends focus on the policy and stop defending the indefensible. Trump is guilty. Among the many loathsome things he has done, collusion with foreign actors to get himself elected may not be among the ten worst, but it is proven beyond a reasonable doubt on the public record.
If we choose to hitch our pro-peaceful coexistence policy hopes to this human manure pile in a dumpster fire on a garbage scow, we and our hopes for peace will undoubtedly go down in flames.
Steven Cohen, are you listening?
+2 # Kiwikid 2018-02-12 00:28
I can see this is going to be hard for you, RR - when Mueller's report is finally tabled and hopefully made public. Assuming, of course, he's not derailed by the constant GOP machinations which prevent what he knows becoming what we all need to know.
+2 # vicnada 2018-02-12 08:35
Since you clearly don't want to attack well-drawn arguments, point-for-point , you introduce an utterly irrelevant player, Clint Watts as if his "flubbing and floundering around" undermines the article in question.

Then two relevant counters: "This article is wrong about what Flynn admitted to. This is also wrong: 'hacking into the computers at the Democratic National Committee and stealing emails that were then distributed publicly by Guccifer 2.0 and Wikileaks—both linked to Russians.'" Of course your statements are totally unsupported by any facts.

Then the important admission: "We don't know what Mueller is up to": this fact that cuts both ways. But as time goes on, a clearer picture of clear crimes comes into focus. And the limb that you and PABLO DIABOLO have crawled out is getting very shaky.
0 # California Neal 2018-02-13 11:47
There are many things I could reply to here, but I'll just choose one:

Robert Mueller will not release a report, or bring any charges, that are easy to refute. He will do exactly the opposite. He is a topnotch managing prosecuting attorney, leading a team of highly respected expert prosecuting attorneys in the fields relevant to the investigations they are conducting. Their work product will be professionalism at its best.
-8 # Rodion Raskolnikov 2018-02-11 14:21
This is an amazing article. It gets right to the nature of Mueller's investigation and how FBI investigations work in the post-9-11 world. It used to be that a crime happened before an investigation was launched. 9-11 changed all of that. Now the FBI just needs to find someone it wants to convict and send to jail.

None of the items listed in chronology above even comes close to being a crime. They are normal activities of a political campaign. The famous case of the Virginia Paint Ball Six is relevant. Just following 9-11, the FBI was keen to bring terrorist convictions against any and all Muslim-American s that it could. So it found six Muslim young men in northern Virginia who liked to play "paint ball." The FBI charged them with being a Taliban cell and training to kill Americans. Three were given life sentences and three got 85 years. They did nothing other than play paint ball, which is not a crime.

So there does not have to be any crime at all. As this article says, “The key question,” the jury instruction concludes, “is whether the defendant joined the conspiracy with an awareness of at least some of the basic aims and purposes of the unlawful agreement.” There will never be any proof that a conspiracy took place. The question is only, whether the defendant joined it. Did Trump join? Of course he did.

Relevant reading is "The Terror Factory: Inside the FBI's Manufactured War on Terrorism." Mueller invented this stuff and now he's giving it to Trump.
+3 # revhen 2018-02-14 07:02
I think the FBI should look into your Russia n ties.
+8 # barbell1941 2018-02-11 16:57
The public knows less than 1% of what Mr Mueller has. Whether he indicts Trump or names him as an un-indicted coconspirator as Nixon was named, Trump is dead meat. They way he tried to hype the garbage Nunes memo and is trying to hide the Democratic memo clearly shows consciousness of guilt. May he die in federal prison.
+7 # PABLO DIABLO 2018-02-12 10:15
"If the average American is stupid, think about the 50% below average". --- George Carlin.
+3 # chapdrum 2018-02-12 12:48
Congress doesn't care. Next.
+2 # 1solartopia 2018-02-12 23:51
mueller better hurry. the longer he delays, the more likely he is to be fired....
0 # GF4A 2018-02-13 14:41
WHY did Trump say, on July 27th -

"Russia if you're listening, I hope you’re able to find the 30,000 emails that are missing,” I think you will probably be rewarded mightily by our press. Let's see if that happens. That will be next.”

He knows. That slimy b@stard knows.

Then there's Donny Jr's glee over the prospect of getting "dirt" on Clinton.

These guys are in it up to their eyeballs.
+1 # DickC 2018-02-14 00:08
Americans are too stupid to care about politics. As long as the pickup is gassed up, beer and cigarettes are available and the old lady is giving out, all is good and well.

Notice that intelligence is missing from the above? Guess why.
-2 # PCPrincess 2018-02-14 11:35
I'm really starting to lose faith. The vast majority of readers are buying this garbage. The ones here who aren't, are being downvoted by those who buy this garbage - or someone else -

Look, my guess is that all major countries attempt to influence elections in some way or another, so if someone wanted to look, I'm sure they could find evidence. The problem with this story, is that it was started by Democrats as a way to cover-up for their own MAJOR F#$* up in quashing Bernie and cheating their own electorate before allowing their 'chosen' candidate to get flubbed by Trump. They failed to see that the voters were tired of both parties.

Secondly, there is still a big question as to what happened to the Clinton staffer who passed a large number of documents to Wikileaks, (Not the Russians), and then mysteriously is offed by a 'supposed' burglar, although nothing was taken from him after he was killed.

That the authors of this piece connect Wikileaks with the Russians is a sure sign that I will learn nothing of value from the article.

Don't believe the hype. The truth is worse.
0 # DongiC 2018-02-14 19:05
Once again unpleasant facts are covered up by some mysterious murder. The Republicans are very fond of this political deus ex machina. It sure covers a multitude of sins as does the labeling of these facts "garbage". The garbage is Donald Trump and what he and the Republican party stand for: welfare for the rich and laissez faire for the poor.

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