A federal grand jury indicted a dozen members of Russia’s Main Intelligence Directorate of the General Staff – the military intelligence agency more colloquially known as the GRU – on eleven counts in connection with the hacking and publication of Democratic Party and campaign organization emails during the 2016 election. Just Security has a good recap of the six major takeaways from today’s indictment, which is well worth reading. I would also recommend listening to the newest episode of the Lawfare Podcast which focuses entirely on various aspects of the indictment.
This is the latest in a series of indictments produced by Special Counsel Robert Mueller’s office in the 17 months or so since he was appointed to the post. This makes a total of 191 charges against 35 defendants, according to CNN’s Marshall Cohen. Previous indictments focused on Paul Manafort’s shady foreign business dealings, as well as guilty pleas from members of the Trump campaign’s inner circle, and an indictment of Russian individuals and agencies who were behind the social media effort during the election.
Journalists and observers who have been following the special counsel’s work had expected charges in connection with the hacks. Why is this one so important? This indictment goes to the heart of the crimes that were committed during the 2016 election. Remember, the chairwoman of the Democratic National Committee and several senior staffers lost their jobs because of these emails. Subsequent batches of hacked emails from Clinton campaign chairman John Podesta’s account upended the final month of the presidential race. This operation had an impact in real time, and is at the heart of the collusion accusations.
The timing for the announcement was probably not a coincidence. Deputy Attorney General Rod Rosenstein was holding a press conference announcing the indictment at the same time that President Donald Trump and his wife were meeting with Queen Elizabeth II and Prince Philip, just days before a scheduled summit in Helsinki with Russian President Vladimir Putin. An anonymous White House official told Politico, “It’s a big FU from Mueller.”
The emerging Democratic position in the wake of the indictment was to call for the President to cancel his meeting with Putin next week. Some Democrats have even gone so far as saying that President Trump should demand the extradition of the indicted Russians, and in the likely event that Putin declines, to use that as an excuse to cancel the summit.
There are a few things still missing or outstanding from the latest indictment, which could turn up later in a superseding indictment or a separate indictment altogether. First, as Lawfare points out, is the thorny issue of what – if any – First Amendment protections WikiLeaks might have as a publisher when considering charges against the organization and its leader Julian Assange. This current indictment did not even address that question, but did make a few passing references to WikiLeaks as “Organization 1” as a recipient of hacked materials from Guccifer 2.0 – an online alter ego for the GRU, according to the indictment.
Assange insists WikiLeaks is a journalistic enterprise, but its actions in this episode suggest otherwise. According to the indictment, WikiLeaks sent a private message to Guccifer 2.0 on June 22, 2016 reading, “Send any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” A subsequent message from WikiLeaks reads, “we think trump has only a 25% chance of winning against hillary. . . so conflict between bernie and hillary is interesting.” In other words – they wanted to meddle and create controversy during the election to help Donald Trump win. If Mueller subpoenaed Twitter to get access to all of the direct messages in the WikiLeaks Twitter account, assume he has more of these messages in which Assange or his subordinates reveal their true intentions.
Second, it should be noted Mueller has probably reached a tipping point where, unless there are more unforeseen names and charges pending, the only logical place left for him to go in this investigation is to start naming and indicting American collaborators. The unidentified American in the indictment who was in contact with Guccifer 2.0 is Roger Stone, who may still be at risk of greater legal jeopardy down the line. Buried at the bottom of page 15 is this tantalizing allegation which pretty much fits the criteria for collusion that journalists have been looking for:
One former Democratic House member from Nebraska went public on Facebook and announced that the Russians hacked his campaign’s emails in the 2016 cycle. It’s not clear if he was the victim in the instance named in the indictment.
The big guessing game among political and congressional journalists for the next several days will be to try and figure out the identity of the campaign that solicited and received stolen emails from Guccifer 2.0. If this person is an elected state or federal official, he or she will be under tremendous political pressure to resign. He or she may also face legal jeopardy, depending on what (if any) additional facts emerge.
Beyond the references to Stone and the unidentified congressional candidate, the big question is what happens if Mueller indicts a major figure who is close to the president – for example, Jared Kushner or Don Jr.
Third, is Vladimir Putin an unindicted co-conspirator? This may be a question for Mueller himself once he finishes his investigation, but it will be interesting to see if he takes a play from the Department of Justice’s past and slaps that dubious label on the Russian leader and implicate him directly in the hacks.
Fourth, what is the status of the obstruction of justice probe in connection with the firing of FBI Director James Comey? Rudy Giuliani has repeatedly moved the goal posts to set the criteria to grant a presidential interview, most recently arguing that they won’t allow it unless Mueller presents evidence that the President committed a crime. Mueller could get a subpoena to compel the President’s testimony, which would eventually lead to a protracted legal battle in which Mueller would likely prevail because of the Supreme Court’s decision in Clinton v. Jones. If the case ever went that far, and an appeals court or the Supreme Court ruled in Mueller’s favor, that would create a permanent, binding legal precedent against the executive branch. The other question about the obstruction of justice investigation would be if and when Mueller would submit a final report to Deputy Attorney General Rod Rosenstein, and if that report were to become a public document. As the calendar gets closer to Election Day, Mueller may wind up postponing any subpoena or report until after the elections.
Watch this space.
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