Today, Special Counsel Robert Mueller released an indictment charging 12 Russian operatives who, acting in their official capacity, illegally hacked into Democratic National Committee computers, stole, and released information intended to harm Hillary Clinton’s chance of getting elected president and bolster Donald Trump’s chance of winning the 2016 presidential election.
What is especially jarring about today’s indictment is that there is no vague language that is employed to soften the connection between the criminals who conducted the hacking conspiracy and the Russian government. Mueller’s indictment makes direct and unapologetic connections between the leaders of the criminal enterprise and the Russian government. Those indicted were not rogue actors, or China, or a 400 pound man, as Trump infamously speculated during one of the presidential debates. Every one of the defendants charged in Mueller’s new indictment is a military officer who was working on behalf of the Russian government. For all intents and purposes, Mueller just indicted Russia.
And, to the extent people take the fact that this indictment does not charge Americans to mean that no Americans were involved in this crime, that would be a bad bet to place. In today’s indictment, Mueller goes out of his way to connect the first ever Russian attempt to hack Hillary Clinton’s personal office emails with Trump’s public request that Russia locate and steal Clinton’s emails. On July 27, 2016, Trump publicly implored a foreign adversary to hack Clinton’s emails. According to the new indictment, that same night, “after hours,” Russia attempted to hack Clinton’s personal emails for “the first time.” This is a tangible link in the criminal chain between Russia and Trump. Short of explicitly saying “there is more to come,” Mueller is telling us there is more to come.
Today’s indictment is the second charging Russians with concerted efforts to influence the 2016 presidential election. The first such indictment came earlier this year, in February, when Mueller charged 13 Russians with illegally mounting a social media campaign to sow public political division to assist Trump in winning the election. No Americans were charged in that indictment either. No doubt the phone lines between congressional members of the GOP and the talent at Fox News are on fire today. Their “alternative fact” headline will surely be that another 12 people have been indicted and since none were members of the Trump campaign, Trump is as innocent as he incessantly tells us he is. But, the GOP, Trump supporters, and Sean Hannity should not yet be breathing a sigh of relief. I think Mueller is holding another shoe that will soon be dropped.
During my more than two decades as a federal prosecutor at the U.S. Department of Justice, I indicted a lot of cases, including sprawling complex conspiracies that I knew would receive a lot of media attention. Many times, I first indicted smaller portions of the case before charging what would be the final indictment that I ended up taking to trial. In fact, I would do everything I could to wait until the end of the investigation to charge the head honchos of the conspiracy. I would add flesh to a skeletal indictment by charging the lower or mid-ranking members of the conspiracy in a way that revealed the gist of the criminal activity but did not tip my hand as to what was coming. I think Special Counsel Robert Mueller is following the federal prosecutor’s playbook and doing the same thing.
Once you indict the biggest players, all hell breaks loose and large amounts of your time are spent playing defense while you go through the grueling process of preparing for a trial date that is barreling down on you faster than you would like. In big cases, there are countless motions filed by the defendants. Motions for bail, motions for discovery, motions to suppress evidence, motions for a change of venue, motions to dismiss. Particularly in high-profile cases, you want your ducks lined up in a row before you charge the main players.
In an iteration of this article published in February, after Mueller released his first indictment, I predicted that Mueller would soon bring an indictment that charged the hacking of the DNC emails. I also predicted that the charges would be against Russians and not members of the Trump campaign. Like the first indictment, none of the 12 Russians charged in this second indictment is in American custody. That means there are no bail hearings, no motions to suppress, no motions to dismiss, no trial timetable bearing down on Mueller because no defendants are in this country being prosecuted. Indicting Russians will not serve to distract Mueller from his larger investigation into whether members of the Trump campaign assisted Russians in their interference with the election.
Mueller is a seasoned prosecutor. He knows that, in an investigation as politically charged as this, public opinion is going to have an effect on the success of his prosecutions, if only because the potential jury pools will contain both democrats and republicans. Indicting a bunch of foreigners for their efforts to steal from an American campaign, and for their efforts to undermine American democracy, is not going to prompt a lot of public outrage against Mueller and his investigation. However, indicting members of the Trump campaign will cause Paul Ryan, Mitch McConnell, Tucker Carlson, and 35 percent of the nation to burst a collective vein. That’s not something Mueller is going to do until he is as ready as he can be.
Mueller brilliantly let the public and commentators chew the flavor out of the Russian indictment earlier this year. I think he will do the same with today’s indictment. Once we have come to accept the factually supported premise that there is sufficient evidence to charge Russians with corruptly attempting to influence an American election, that is when Mueller will drop his third shoe.
At that point, I predict Mueller will turn to the Americans who participated in the efforts to corruptly influence the 2016 presidential election. Mueller will use the framework of the indictments he’s already charged and file superseding indictments charging Americans, including members of the Trump campaign, with participating in a conspiracy to illegally influence the election. People should not delude themselves into believing that no current charges against members of the Trump campaign mean there will never be any. In fact, based on the information that has been made available to the public, there appears to be ample evidence to bring charges against members of the Trump campaign. Mueller is just following the prosecutor’s playbook and saving the best for last.
