Published April 26, 2021

Elie Honig:

From Cafe and the Vox Media Podcast Network, this is Third Degree. I’m Elie Honig.

For today, we’re going to talk about Russian interference in the 2016 election and Robert Mueller and Paul Manafort and Roger Stone and that whole crew and, yes, former president Donald J. Trump. No, don’t check your watches. It’s not still 2018. It is indeed April of 2021, and no, you haven’t accidentally tuned into the golden oldies station because the fact is while much of this story has been told, we are still learning vital information, new revelations, even now in 2021 about the absolute depths of the corruption, the coordination, the cover-up, and, yes, I’ll use this phrase, collusion.

It’s all still relevant. Even now as President Biden announces a brand new set of sanctions against Russia for its effort to influence the 2020 election. As we’ll discuss, the Department of Justice and Merrick Garland, the new AG, have some very important decisions to make ahead.

So first, what’s new? You probably remember this one important and, really when you stop and think about it, astonishing incident from the Mueller Report. Paul Manafort. He’s the campaign manager for the Trump 2016 campaign and he meets with a shady Russian named Konstantin Kilimnik and passes Kilimnik sensitive, internal Trump 2016 polling data, proprietary stuff. Gosh, the scandals were happening so fast then that it takes a few years of perspective to be reminded just how crazy this was. I mean, the campaign manager passing information to a Russian who turned out to be a Russian intelligence agent. Now, just last week we learned for the first time, somehow, in a U.S. Treasury Department report listing reasons for the Biden administration’s new sanctions against Russia that Kilimnik took that internal Trump campaign pulling data and gave it to the Kremlin, to the heart of Russian government.

So now we have a direct pipeline from the Trump 2016 campaign to Russian spies right as the Kremlin was trying to interfere in the 2016 election to help Trump win. That’s not up for debate. That can’t be disputed and it bears noting. Robert Mueller did not know this detail or put it in his report. Maybe he missed it. Maybe he was stifled by widespread obstruction of justice. We’ll get to that. As time passes, I have to say Mueller’s legacy, not his overall legacy which remains that of an American hero, but his legacy on the Russia investigation gets shakier and shakier. He missed some key facts. You can’t get them all as an investigator, but he missed some.

He wasn’t willing to fight legally to force Trump to testify, or at least to try. He backed off and accepted these really weak, mealy-mouthed, lawyered-up answers in written form instead. He interpreted the law timidly in Trump’s favor on key points of election law. He failed to state his legal conclusions in any kind of clear or actionable way, using ambiguous doublespeak so solicitous of Donald Trump’s good name that he left the door wide open for political dissemblers like William Barr and Trump to lie to the American public and change the meaning of his investigation. And Mueller failed to stand up clearly enough or powerfully enough to correct the record when that distortion happened. The man’s a hero. Without question, he’s a decorated war veteran. He had a legendary career as a prosecutor and an FBI director, but he left that particular mission unfulfilled, which brings us to our second point.

Collusion. Collusion, let me be clear, is not a legal term. It’s not in the criminal realm. It has some bearing on antitrust laws, but they had nothing to do with Mueller. Collusion is, was, and always has been a political term and a loaded amorphous one at that. Give Donald Trump a little bit of credit here. It was a brilliantly self-serving turn of phrase, no collusion, because it allowed Trump and his defenders to contour and distort its meaning around whatever the facts were to always declare him free and clear. Here’s what I stipulate to. The evidence was not quite sufficient to charge Donald Trump with the federal crime of conspiracy with Russia. But that’s a very different thing than saying no collusion. Here are the facts and they are not, as the Kevin Bacon prosecutor in A Few Good Men says, in dispute.

One, Russia interfered in the 2016 election. They committed crimes to do that. They hacked into emails and they put out false propaganda. Two, Russia committed those crimes overwhelmingly because they wanted to help Trump win. Three, the Trump campaign knew about that Russian interference. They welcomed it, they expected to benefit from it, and the campaign tried to learn information about how Russia was going to go about interfering. That’s all stated in Robert Mueller’s report. Four, Trump himself tried to get information about the Russian hacking efforts from Roger Stone. This is what Roger Stone lied to Congress about. This is what the jury convicted Roger Stone for lying about and this is what Donald Trump commuted, and then eventually pardoned Roger Stone for doing. Fifth, there were dozens of contacts between Trump campaign members and Russians offering election help, most infamously the Trump tower meeting between Don Jr, Jared Kushner and a bunch of Russians, and perhaps most damaging now, we have that meeting between Manafort and Kilimnik, which we now know went all the way back to the Kremlin.

Don’t give me this no collusion BS. Don’t try to define collusion to mean anything short of Donald Trump himself hand-delivered delivered a suitcase full of cash to Vladimir Putin at the Kremlin. Because just short of that is about where we’re at. Donald Trump and others can cry no collusion forever, but that will not make them right.

Which brings us to number three, obstruction of justice. Whatever happened to obstruction of justice? You remember, Robert Mueller laid out 11 separate instances of what he called potential obstruction of justice and he went element by element and made fairly clear that the elements were met for many of those. Firing Comey, trying to fire Robert Mueller, asking Don McGahn to lie and create a false document. Yes, that’s in the report. Dangling pardons to keep people silent, which by the way, since then a lot of those pardons have been delivered to people who kept silent. Here’s another spot where Mueller just fell down. He did not say clearly what was so glaringly obvious. Trump obstructed justice flagrantly, many times over he left the door, open Bill Barr jumped in and declared Trump free and clear, a ridiculous and corrupt and dishonest decision, as I lay out in my book. Little plug there.

Over 1000 former prosecutors, career folks, apolitical folks, folks from both parties, including me, by the way, ended up signing a letter concluding that, indeed, Donald Trump did commit obstruction and should have been indicted if and when he was not sitting president. Incidentally, I never saw any such letter arguing there was no obstruction from 1,000 former prosecutors or 100 or 10 or four. It was really 1,000 of us against Bill Barr and Rod Rosenstein. Now, this obstruction all happened in 2016 and 2017, meaning, and are you listening Merrick Garland, it’s still within the statute of limitations, which, generally speaking, is five years. So Merrick Garland, what will you do? What will DOJ do about this?

My suspicion, and I hate to say it, is nothing. Why? Well, look, it feels old. It feels like the moment has passed. By the way, it doesn’t help that President Biden let slip to his advisors, he didn’t say it on record, but he said to several advisers who promptly told the press Biden does not want his DOJ going down this road. Joe Biden has been in DC long enough to know that if he says something to multiple advisers, it’s going to get out there, potentially influence the attorney general. To President Biden and to the Attorney General Merrick Garland, If your plan is to just skip past this, I say too damn bad. This isn’t about politics or what’s easy or expedient. You have a job to do. Donald Trump committed flagrant crimes many times over that went to the heart of our criminal justice process and if you plan to just let them slide, Merrick Garland, because it’s too inconvenient to do anything, then you’re not doing your job.

It’s still early and Merrick Garland has done a rock solid job so far of getting DOJ back on track and back to core principles that he was raised with at DOJ. But if he turns a blind eye to obstruction and hopes it just sort of fades out, then that’s an absolute failure. Thanks for listening and stay with us. We’re going to follow the Shovan trial and we’re going to talk all about the verdict once it comes down. I’m Elie Honig. This is Third Degree, and please keep sending us your thoughts, questions and comments to letters@cafe.com.