Are We Now Ok With Encouraging Foreign Dictators To Hack Domestic Opponent’s Emails?

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Via Benjamin Wittes, Jane Chong, Quinta Jurecic for Lawfare

The Trump White House’s key defensive wall has developed some major cracks.

Ever since the first revelations of L’Affaire Russe, President Trump and his defenders have insisted that there’s no evidence of “collusion” between Russian operatives and either the Trump campaign or the candidate himself.

This defense was always a highly qualified one that conceded a great deal, despite being often presented in bombastic terms–as when Trump himself repeatedly insistedhe had “nothing to do” with Russia. It conceded, though inconsistently and sometimes quite grudgingly, that yes, the Russians had conducted an active measures campaign within the election designed to aid Trump. It also conceded a point on which the public record simply brooks no argument: that Trump took obsequiously out-of-the-mainstream positions during the campaign towards Russia and its strongman, Vladimir Putin, covered for their involvement in the hacking with a web of denials, and even at times openly encouraged the hacking. The “no collusion” defense, in other words, was always a modest one that did not really deny that the Trump campaign gleefully accepted Russian aid during the campaign and promised a different relationship with Russia in a hundred public statements; it denied only that the campaign did these things in secret collaboration with Russian state actors. The defense conceded that Trump benefited from Russia’s actions, denying only that he or his people were parties to them in a covert fashion that went beyond the very visible encouragement Trump gave.

The problem with dwelling too much on the covert forms of collaboration, which we have come to call “collusion,” is that doing so risks letting Trump at least a little bit off the hook for what is not meaningfully disputed: that the president publicly, knowingly, and repeatedly (if only tacitly) collaborated with a foreign power’s intelligence effort to interfere in the presidential election of the country he now leads. Focusing on covert collusion risks putting the lines of propriety, acceptable candidate behavior, and even (let’s be frank) patriotism in such a place where openly encouraging foreign dictators to hack your domestic opponent’s emails falls on the tolerable side. It risks accepting that all is okay with the Trump-Russia relationship unless some secret or illegal additional element actually involves illicit contacts between the campaign and Russian operatives. Yet it’s hard to imagine how any scandal of illegality could eclipse the scandal of legality which requires no investigation and has lain bare before our eyes for months.

But it is this very distinction, in which Trump’s own defenders are so heavily invested, that now appears poised to crumble. Over the past two weeks, two major stories have developed suggesting that there may, after all, have been covert contacts, meetings, and agreements between the Trump campaign and the Russians.

Notably, these stories are not “leaks”–that is, improper disclosures from investigators or congressional overseers. The first story is sourced to an individual involved in the effort that the story describes who independently sought out the Wall Street Journal to tell his tale, along with other non-government sources connected to the matter. The second story is sourced to individuals “briefed on” and “with knowledge” of the relevant material, including “three advisers to the White House,” who described the relevant information to the New York Times. Some of the story is sourced to private defense lawyers communicating with reporters in an effort to help their clients.

And while the stories don’t–yet–show any actual collusive agreement or specific actions, they do show two separate incidents in which the Trump campaign or someone purporting to act on its behalf knowingly sought to engage Russian representatives in order to garner damaging information on Hillary Clinton.

In other words, if the Trump campaign didn’t collude with the Russians, it wasn’t for lack of trying.

Let’s review the facts.

• First came the Wall Street Journal’s series of reports late last month on the late GOP operative Peter W. Smith’s attempt to obtain emails that he believed were stolen from Clinton’s private server by Russian hackers. In Smith’s conversations with people he tried to recruit to the effort, he strongly implied that Michael Flynn–the Trump campaign’s key national security figure–was an ally. In a follow-up story, the Journal reported that Smith had listed Flynn, Stephen Bannon, Kellyanne Conway, and Sam Clovis in a recruiting document, although his purpose was not clear and the document did not indicate he requested or received their assistance. The story also named former GCHQ information security specialist Matt Tait as the individual who provided the Journal the document.
• The document, entitled “A Demonstrative Pedagogical Summary to be Developed and Released Prior to November 8, 2016″ and dated September 7, 2016, was ostensibly the cover page of a dossier of opposition research that was to be compiled by Smith’s group and which purported to note the involved participants.
• In a separate first-hand account at Lawfare, Tait then offered a detailed account of his communications with Smith, who reportedly reached out to him for help authenticating emails ostensibly stolen from Clinton’s private email server and being provided to Smith by people on the “dark web” whom Smith believed to be Russian hackers.
• Then, on Saturday, the New York Times reported that last summer, Donald Trump Jr., Trump campaign chairman Paul Manafort, and the president’s son-in-law Jared Kushner met with Natalia Veselnitskaya, a Russian lawyer with Kremlin ties, at Trump Tower. The meeting took place on on June 9, 2016, the same day Trump tweeted at Clinton, “[W]here are your 33,000 emails that you deleted?” Trump Jr. issued a statement confirming his meeting with Veselnitskaya but explaining that the subject was mainly “the adoption of Russian children.” Trump Jr. also noted that he “asked Jared [Kushner] and Paul [Manafort] to stop by.”
• On Sunday, however, the Times reported that Trump Jr. met with Veselnitskaya specifically after he was promised damaging information about then-Democratic presidential nominee Hillary Clinton. Trump Jr. then issued a second, significantly more detailed statement. In it, he specified that Kushner and Manafort were told “nothing of the substance” of the meeting before arriving and stated that his father “knew nothing of the meeting or these events.” He revealed that the intermediary who asked him to have the meeting was an acquaintance he knew from the 2013 Miss Universe pageant, which Donald Trump convened in Moscow. And he admitted both that he was told in advance that the person he was meeting “might have information helpful to the campaign” and that during the meeting Veselnitskaya “stated that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Ms. Clinton.” Later on Sunday, the Washington Post reported that the intermediary was Rob Goldstone, the manager of Azerbaijani pop star Emin Agalarov, whose father Aras Agalarov is a billionaire Moscow developer who reportedly previously served as a liaison between Trump and Vladimir Putin. (See also Emin Agalarov’s 2013 music video featuring a cameo from Trump, and Trump’s November 2013 tweetdeclaring, “EMIN was WOW!”)
• Last night, the Times reported what is perhaps the most significant detail to emerge yet from the story: that before arranging the meeting with Veselnitskaya, Goldstone allegedly informed Donald Jr. in an email that the information she would offer was part of a Russian government attempt to help his father’s candidacy.

It’s important to be careful about what we don’t know in both stories. With respect to the Wall Street Journal and Tait story, three questions stand out: First, what was Flynn’s actual involvement in Smith’s email operation? Was Smith really acting with Flynn’s knowledge and involvement or was he just blowing smoke and puffing himself up–and if Flynn was involved, to what extent was he involved in his Trump campaign capacity? Second, were the interlocutors on the other end of Smith’s attempted transactions really Russian operatives or were they just fraudsters trying to take an old man for a ride? In other words, was Smith colluding with the Russians or colluding with pretend Russians? Third, were there any actual emails at issue or was the entire matter a fantasy on the part of Smith and whomever he was working with in Trump’s world? Without knowing the answers to these questions, it’s hard to know how deep the problem goes–that is, whether we’re dealing with one guy on the periphery of the campaign pursuing a delusional fantasy or whether we’re dealing with the campaign, through a cut-out, negotiating with Putin’s hackers.

The Times stories leave big open questions, too. For example, is there any connection between the meeting and the release of DNC emails? The meeting took place on June 9. The previous day, DCLeaks–an outlet listed in the intelligence community’s reporton Russian election interference as a GRU cut-out–had begun its first releases of information, publicizing files belonging to prominent Clinton donor George Soros’s Open Society Foundation and General Philip Breedlove. The week after the meeting, on June 14, DCLeaks published internal Clinton campaign documents for the first time. Then, on July 22, Wikileaks released a trove of hacked DNC emails. The disclosures of hacked information continued into the summer and fall.

Trump Jr. claims there was no followup to the meeting on his end, but the question of whether the Russian side took further action following the conversation is also critical. Was this really a one-off meeting that didn’t go anywhere, or was it an effort to sound out the people around the candidate to determine their willingness to accept Russian help before taking further steps?

There’s also the question of the candidate’s personal knowledge. The White House has denied that the President knew of the meeting; deputy press secretary, Sarah Huckabee Sanders, said that Trump had learned of the meeting recently. That said, he was clearly in the building on the relevant day, and the meeting involved two close family members and his campaign chairman and a woman purporting to be bringing news of a foreign government effort to help his campaign. So again, the story as it stands today is consistent with an abortive effort to gather dirt that never went anywhere and of which the President neither knew nor approved–and on which nobody followed up. But it’s also consistent with a covert contact that precipitated the first major release of Russian-hacked material stolen from Trump’s opponents. It’s certainly consistent with individuals willing to publicly lie to cover up their contacts, and only acknowledge such contacts when caught by the media.

There’s also the question of whether these two stories are connected to one another. It’s possible to see them both as isolated incidents. Campaigns are complicated and chaotic; the right hand doesn’t always know what the left hand is doing. The Trump campaign was more complicated and more chaotic than most, and there was a significant block of time between the Veselnitskaya and the Smith operation, which took place in the fall. So maybe these are two unrelated events that both just happen to involve people purporting to act on behalf of the Trump campaign seeking dirt on Clinton from people purporting to be helping the campaign on behalf of the Russian state. Again, it’s hard to assess the ultimate significance of the story without more insight into the answer to this question.

All that said, let’s take a moment to recognize the significance of the cracks in the “no collusion” wall. These stories, particularly the New York Times story, take the problem directly into the campaign itself. We’re not talking here just about shady actors on the periphery. We’re talking about the campaign chairman and–at least if you believe Peter Smith–about the candidate’s top national security adviser, who later became the President’s national security adviser. It also takes the story deep inside the Trump family. We’re talking about his son and son-in-law, both personally meeting with a woman purporting to offer dirt on Clinton as part of a Russian government effort to help Trump and who explicitly then pivots the conversation to what she wants: “adoption,” after all, is the flip side of the sanctions coin.

So what is the Trump world’s response to all of this? To attack James Comey, of course. On Sunday, The Hill published a story indicating that “the revelation that four of the seven memos” in which Comey documented his private interactions with Trump “included some sort of classified information opens a new door of inquiry into whether classified information was mishandled, improperly stored or improperly shared.” On Monday, FOX & Friends then tweeted on the basis of The Hill’s story that the memo provided to the New York Times, “contained top secret information.” President Trump retweeted FOX & Friends’ misleading tweet and added:

James Comey leaked CLASSIFIED INFORMATION to the media. That is so illegal!

— Donald J. Trump (@realDonaldTrump) July 10, 2017

Trump has not said a word in public in defense of his son or son-in-law.

The “Comey leaked” defense, of course, is a bit of a non sequitur. The story, after all, is not coming from investigators, let alone an investigator fired months ago. The information in question is not classified either. This is material that is coming from family, from staff at the President’s own White House, and from people who participated in the events in question.

Trump Jr. on Monday tried a different line of defense, tweeting:

Obviously I'm the first person on a campaign to ever take a meeting to hear info about an opponent… went nowhere but had to listen. https://t.co/ccUjL1KDEa

— Donald Trump Jr. (@DonaldJTrumpJr) July 10, 2017

This isn’t going to fly–or, at least, it shouldn’t fly. There is simply nothing normal about a campaign’s meeting with a foreign lawyer who purports to be acting on behalf of an adversary foreign power seeking to aid the campaign against a domestic opponent.

How unusual is it? On September 14, 2000, former congressman Tom Downey, a close advisor to Democratic presidential candidate Al Gore, received an anonymous package in the mail containing a videotape of George W. Bush practicing for the upcoming presidential debates and more than 120 pages of planned debate strategies. Downey and his lawyer contacted the FBI and handed the cache over that very day, and Gore campaign officials then immediately reached out to the Associated Press to provide a timeline of the events. The Gore campaign had no hint of who had sent the materials–nothing indicated the involvement of a foreign power; indeed, the package was eventually traced to a low-level employee at a media firm. But the materials were on their face likely provided to the Gore campaign as part of an attempt to damage Gore’s opponent, and that was enough to prompt a call to authorities.

The rightness of the Gore officials’ course of action is in no way diminished by the fact that, as suggested at the time, they were probably in part motivated by the desire to avoid the accusations of ill-gotten advantage that had rocked the Reagan administration. A couple years after the fact, it had been revealed that the Reagan campaign had obtained secret briefing materials on then-President Jimmy Carter’s debate strategy in the run-up to the 1980 election; those revelations in turn triggered long-running congressional and Justice Department investigations. Those investigations–which eventually ended in a whimper–raised questions about whether and what kind of crime had been committed, but note that the Justice Department concluded at the time that there was ”no criminal intent of any kind” and “no criminal wrongdoing” committed in connection with the transfer of the materials. This scandal too did not involve any indication of involvement by a hostile foreign power or its intelligence services.

So what happens now? Three things. There are a lot of threads here for congressional investigators to sink their teeth into. Robert Mueller’s people undoubtedly have even more. So expect a great deal of investigative intensity, much of it invisible, on the part of the official government investigators both on the legislative and executive branch sides. Second, the journalism is not slowing down. The more that comes out, the more people who know things will call reporters, and the more people will find it in their interests to take calls when reporters call them. These stories have a way of snowballing, and we have definitely reached a tipping point where this one has reached escape velocity. That’s what happened over the weekend with the New York Times, and you can expect it to continue. Third, the President appears incapable of not making things worse for himself, so expect his conduct to, day in and day out, make the situation worse.

When the travel ban executive order came down, one of the present authors famously labeled it, “malevolence tempered by incompetence.” This situation, as another one of us tweeted last night, is something else: “malevolence exacerbated by incompetence.”

Such stuff can crumble the mortar of the strongest walls–and the “no collusion” wall was never a strong one to begin with.

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UPDATE: Tuesday morning, the New York Times published another story in its series on Donald Trump Jr.’s meeting with Natalia Veselnitskaya, this time revealing the contents of the email exchange in which Rob Goldstone indicated to Trump Jr. that the Russian government was behind the proposed meeting. Shortly before the Timespublished the story (and reportedly after being informed that the paper was publishing a story on the matter), Trump Jr. posted the full email exchange with Goldstone on Twitter. At the beginning of the exchange, Goldstone informs Trump Jr., “The Crown prosecutor of Russia … offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father … This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.” (Russia has no Crown Prosecutor, but Goldstone may have been referring to the Prosecutor General.) Goldstone also writes, “I can send this info to your father via Rhona, but it is ultra sensitive so wanted to send to you first.” Trump Jr. responded, “If it’s what you say I love it especially later in the summer.” Notably, Goldstone refers to Veselnitskaya as “[t]he Russian government attorney,” though this morning in an interview with NBC, Vesenitskaya denied working for the Russian government or having any “damaging or sensitive information on Hillary Clinton.” Jared Kushner and Paul Manafort are both copied in Trump Jr.’s last email in the chain. The document appears to be a single email chain; if this is the case, then Kushner and Manafort were sent substantive information about the content of the meeting, contradicting Trump Jr.’s statement on Sunday that Kushner and Manafort were told “nothing of the substance” of the scheduled discussion.