(Bloomberg) -- President Donald Trump, for all of his attacks on journalists and threats to weaken laws protecting news gathering, may owe a debt of gratitude to the First Amendment.
U.S. law protects publishers who disseminate truthful information, even if someone else obtains it illegally. That helped the Trump associates who communicated with WikiLeaks and others about the dissemination of emails stolen by Russians. Those contacts don’t constitute a crime, according to Mueller and Attorney General William Barr.
Such people could have been charged, the attorney general said, only if they had helped the Russian hackers steal tens of thousands of emails damaging to Hillary Clinton’s 2016 presidential campaign. And they didn’t.
“Cheering on other people to hack Hillary Clinton’s emails is arguably unpatriotic and ethically or morally deficient,” said Patrick Cotter, a former federal prosecutor. “But that’s not necessarily illegal.”
That narrowly drawn legal judgment was one of a handful that led Mueller’s team to conclude that the Trump campaign’s dealings with Russia didn’t warrant criminal charges. Among the others: Mueller’s prosecutors didn’t find violations of federal campaign finance law or of Americans acting as unregistered agents of Russia. They also couldn’t determine if the campaign dirt promised by Russians had financial value that might have amounted to an undeclared campaign contribution.
That’s not to say there weren’t plenty of contacts with Russians, or expectations in the Trump camp that the Russian efforts would benefit them.
Mueller, in his partially redacted 448-page report released on Thursday, laid out a tapestry of contacts between Trump associates and Russian officials and their emissaries before and during the 2016 campaign. The interactions ranged from potential real estate deals in Moscow to the Trump campaign chairman Paul Manafort handing off private polling data to an associate with ties to Russian intelligence.
"The investigation established multiple links between Trump campaign officials and individuals tied to the Russian government," Mueller wrote in the report. Although the campaign actively sought the help of Russians -- and even thought it would “benefit electorally” from the stolen emails -- it didn’t reach any criminal agreement with the Russians to break the law, Mueller wrote.
Surprises could still emerge, of course: The report includes blacked-out passages that point to other matters under investigation, and Mueller referred many cases to other federal prosecutors, including a dozen that the Justice Department isn’t disclosing publicly.
Praise and Bafflement
Mueller’s charging decisions met with mixed reactions from legal experts. In a case with immense political and constitutional stakes, some praised him for his careful reading of conspiracy law, which requires an agreement by two or more parties to commit a crime.
Others were baffled by his rationale for declining to press charges related to the June 9, 2016, meeting at Trump Tower, where Manafort, Donald Trump Jr. and Jared Kushner met with Russians who purported to have campaign dirt on Clinton that had been obtained by the Russian government.
The Trump associates who attended the meeting may not have known it was illegal for a campaign to accept assistance from a foreign government or its agents, Mueller wrote, making it a challenge to prove criminal intent. But some legal experts pointed to a well-worn standard -- that ignorance of the law is no defense.
“There is no requirement that you know something is illegal,” said Matt Jacobs, a lawyer at Vinson & Elkins in San Francisco who once worked with Mueller as a federal prosecutor. “That is just wrong as a matter of law. If you and I agree to rob a bank and you later say that you didn’t know robbing a federal institution is against the law, it doesn’t matter.”
Lack of Access
Mueller’s long-awaited report added both a narrative frame and layers of fresh detail to key events in an investigation that has become public in fits and starts over two years. Mueller also acknowledged that some important aspects of the case remain unknown because of his lack of access to Trump, other witnesses and documents.
The report also spelled out why Mueller rejected the use of several other criminal statutes besides conspiracy related to Russian contacts.
Regarding the Trump Tower meeting, Mueller noted that he could have tried to apply campaign-finance law. But he determined that he didn’t have evidence to prove that the promised derogatory information about the Clinton camp was an illegal “thing of value” offered by a foreign contributor.
Prosecuting the Trump Tower meeting as a campaign-finance case would have been “as weak as weak can get,” according to former federal prosecutor Gene Rossi.
By contrast, Trump’s former lawyer Michael Cohen pleaded guilty to campaign-finance violations for helping to arrange hush-money payments to two women who said they had sex with Trump. In that case, prosecutors had extensive financial documentation of the payments.
“When he’s talking about willfulness and quantifying value -- Mueller’s making some good points,” Cotter said. “Those are hard things to prove, and it’s a weird law.”
FARA Violations
Mueller also examined whether he would charge anyone with a violation of a U.S. law that requires foreign agents to register with the Justice Department. Mueller employed the law previously, charging Manafort and his former right-hand man, Rick Gates, with illegally lobbying on behalf of pro-Russia Ukrainians.
Mueller said he also looked at whether early campaign aides George Papadopoulos and Carter Page acted as agents of the Russian government -- “or at its direction, control or request.” He added that prosecutors didn’t find evidence beyond a reasonable doubt to prove such a case.
Prosecutors also considered charging people involved with the release of stolen emails with the crime of trafficking or receiving stolen property, according to a footnote in the report. Ultimately, they rejected that theory, concluding that the National Stolen Property Act applies only to “goods, wares or merchandise,” and not to hacked emails.
April Doss, a cybersecurity lawyer at Saul Ewing Arnstein & Lehr, said the decision not to seek criminal charges for disseminating the emails was in keeping with recent Justice Department policy, which has sought to draw a bright line between publishing stolen information and participating in its theft.
An example of that came in recent weeks, when prosecutors unsealed a year-old indictment of WikiLeaks founder Julian Assange. That March 2018 document didn’t fault Assange for publishing emails that were stolen from a Pentagon computer network in 2010 by then-U.S. Army intelligence analyst Chelsea Manning. Instead, Assange was indicted for allegedly giving Manning a hand in his efforts to extract the emails.
“He was charged with helping steal the documents, not with publishing them,” said Doss, a former lawyer at the National Security Agency. “The DOJ doesn’t want to get into any territory that could potentially be covered by the First Amendment.”
The wild card in the report is Roger Stone, the political operative and longtime Trump associate who was directed by senior campaign officials to be a liaison to WikiLeaks.
Stone, who was indicted in January on charges of obstruction and making a false statement, helped the Russian intelligence operative known as Guccifer 2.0 analyze voter data that had been hacked from Democrats during the summer of 2016, according to Mueller. In the campaign’s final months, Stone set out on a frenzied quest to contact Assange about the emails that WikiLeaks was preparing to release, Mueller said.
There’s no indication of whether Stone succeeded, judging by the unredacted portions of Mueller’s report. But more details could be forthcoming. In court documents filed on Wednesday, U.S. prosecutors said that additional information about Stone would be revealed to some members of Congress, who will receive a “less redacted” version of Mueller’s report.
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