UPDATE (Dec. 7, 2018, 6:13 p.m.): Late Friday afternoon, prosecutors from the Southern District of New York filed a sentencing memo for Michael Cohen, President Trump’s former lawyer and “fixer,” recommending a “substantial” prison term of about four years, despite his cooperation with special counsel Robert Mueller. In a separate memo submitted last week, Cohen’s attorneys had asked for no prison time. The federal prosecutors’ memo, which was accompanied by a separate memo from Mueller, outlined the scope of Cohen’s crimes and — perhaps most significantly — wrote that Cohen committed campaign finance crimes at the direction of Trump.
According to the memo, when Cohen illegally made hush-money payments to two women to keep them from disclosing details about their past affairs with Trump prior to the 2016 election, he “acted in coordination with and at the direction of” Trump. (To be clear, this is separate from the investigation into whether the Trump campaign coordinated with Russia to interfere with the election.)
Meanwhile, a highly anticipated memo from Mueller describing how former Trump campaign chair Paul Manafort breached his plea agreement (which is part of Mueller’s Russia investigation) was released, but a significant amount of material was either redacted or filed under seal. That said, the alleged breach of Manafort’s plea agreement appeared to include lies about payments; lies about interactions with his former aide, Russian political operative Konstantin Kilimnik; and lies about unspecified contacts with the Trump administration.
When he completes his investigation into Russian interference in the 2016 election, including possible coordination with Russia by the Trump campaign, special counsel Robert Mueller is required by federal regulations to submit a confidential report to the attorney general. Depending on how Mueller decides to approach his task, that could be an expansive report outlining all of the details of his findings.
But it’s also possible that the American public will never get to read Mueller’s report — at least not the full version. That’s because Acting Attorney General Matthew Whitaker (assuming that he’s still in the job when the report comes in) and other Justice Department officials will give key members of Congress a brief overview of what’s in the report and then determine whether and how to make Mueller’s findings public. It’s not at all obvious that Whitaker, who has been critical of Mueller’s investigation in the past, will want to share the full report more broadly, and President Trump’s attorneys might even try to block its release.
But in some ways, Mueller has been writing a public “report” over the past 13 months, through the indictments and charging documents that his office has issued. Many of the indictments, describing what Mueller and his team have found, are more detailed than required. (Much of the detail in a supplement to Michael Flynn’s sentencing memo released late Tuesday was redacted.)
To be clear, we don’t actually know for sure if Mueller’s strategy is to use court documents to present his findings to the public. But if we consider the sum of the information that Mueller has already released publicly as a kind of “report” to Congress and the electorate, what have we learned?1
There’s evidence that the Russians interfered to help Trump
The indictments that Mueller filed against 25 Russian nationals and intelligence officers in February and July are incredibly detailed, almost novelistic. They meticulously outline a lengthy, complex campaign to create political and social divisions around the 2016 election and undermine Hillary Clinton’s candidacy while aiding Trump’s.
According to the indictments, the Russians obtained emails of top Clinton aide John Podesta and released them to an organization that is widely believed to be WikiLeaks; they also set up fake Facebook and Twitter accounts and even in-person events to promote Trump and attack Clinton. Criminal charges filed by other Justice Department prosecutors have amplified this story, alleging efforts by other Russians to establish back channel communications with American politicians and even continue to influence American political discourse after the election.
What these charges don’t do is implicate the Trump campaign in the Russians’ attempts to influence the election. That said, Mueller’s indictments paint a detail-rich picture of high-level Russian operatives working to elevate Trump’s candidacy and undermine his opponent’s, a notion that Trump has tried to downplay.
Key Trump campaign officials admitted to misleading investigators
Mueller’s court filings make several things clear.
First, despite assertions to the contrary on the campaign trail, Trump was enmeshed in efforts to land a business deal in Russia for a significant portion of 2016. We know this because Michael Cohen, Trump’s longtime personal lawyer, admitted in a guilty plea that he was actively working on a deal to build Trump Tower Moscow through June 2016 and discussed the deal multiple times with Trump.
And, second, Trump’s campaign had a lot of connections to people associated with the Russian government (or who claimed to be). Two of the top officials in the Trump campaign, Rick Gates and Paul Manafort, worked for years in Ukrainian politics, aiding leaders with close ties to Russian President Vladimir Putin and the Russian government. Last fall, George Papadopoulos, a foreign policy adviser for the Trump campaign, admitted in a guilty plea that he tried to arrange meetings between Trump campaign officials and Russian officials in early 2016. According to the plea, a professor in London whom he hoped would serve as a liaison between Russian officials and the Trump campaign told Papadopoulos that the Russians had “dirt” on Clinton in the form of “thousands of emails.” And Flynn, who was a top foreign policy adviser to Trump and briefly served in the White House as national security adviser, had repeated contacts with the Russian ambassador to the United States during the presidential transition period.
Some of those people have also made false statements to federal investigators or Congress about their Russian connections. Last year, Flynn pleaded guilty to lying to the FBI about his contact with the Russian ambassador during the transition, and Papadopoulos pleaded guilty to lying to the FBI about his contact with Russian intermediaries during the 2016 campaign. And, most recently, Cohen admitted that he lied to Congress about his pursuit of the Trump Tower Moscow deal during the first six months of 2016, which included communications with a top Putin aide. Of course, what motivated these lies and what they signify in a macro sense aren’t clear. Cohen, at least, appears to have lied to Congress out of a desire to avoid contradicting Trump’s own false claims about his Russian business dealings.
Still, Cohen’s cooperation with Mueller also signals that anyone on the campaign or transition team who testified to Congress about their connections with Russia might now also have their testimony scrutinized for false statements, a group that includes Trump’s son Donald Trump Jr. and son-in-law Jared Kushner. Additionally, if the written answers to questions from Mueller that Trump submitted in November contradict Cohen’s statements to Mueller about the Trump Tower Moscow deal, it could create serious problems. More allegations of false statements could be coming.
But there are a few questions Mueller has not answered yet — and they are perhaps the most important ones, not only because of their legal implications but because of the political fallout that could result from the Russia investigation.
First, does Trump have any existing business deals with direct financial ties to the Russian government or major Russian figures? Did he, as a candidate or as the president, make any undisclosed policy deals with Russia (like pledging to attempt to lift sanctions imposed by the Obama administration)? Neither would necessarily be illegal, but any new details that Mueller uncovers could become the subject of news coverage and investigations by congressional Democrats.
Then, there are the key legal questions. Did Trump campaign officials or Trump himself directly encourage or participate in the hacking and other interference efforts by Russian officials during the 2016 campaign? And has Trump committed any crimes during the Mueller investigation? In particular, there has been speculation about possible perjury (if Trump gave inaccurate answers in response to the special counsel’s questions) and obstruction of justice (if the president’s firing of FBI Director James Comey was for the purpose of stopping the Russia investigation, back in its pre-Mueller stages). If the answer to either of those questions is “yes,” Trump could be in major legal and political trouble.
Mueller may never answer any of the questions listed above directly. He may decide that, for example, Trump’s potential business holdings in Russia are not relevant to his investigation or are outside the scope of his mandate. Or Mueller may believe that he doesn’t have the power to indict a sitting president; that could limit how much future indictments from Mueller (or even a final report) say, especially on whether the president committed perjury or obstructed justice.
But even if Trump is never charged with a crime as part of the Russia investigation, the president could still be harmed by it. Mueller could file criminal charges against more of the president’s allies (like Roger Stone, who appears to be a focus of the investigation), and those filings could include politically damaging details. Cohen’s guilty pleas illustrate how dangerous a Stone indictment or guilty plea might be for the president. Through the Cohen cases, prosecutors revealed that Trump had pursued business in Russia while a presidential candidate and was involved in paying off women with whom he had affairs, which violated campaign finance law because the hush money amounted to an illegal campaign contribution.
So stay tuned. We don’t know how much longer Mueller’s investigation will last or how many more indictments or other public documents he will file. His investigation could end with a lot of indictments, but with little said about Trump. Or it could make Trump look so bad that congressional Democrats, the press and the public start to talk more openly about impeachment.