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By Glenn Kirschner, former assistant U.S. attorney for the District of Columbia and NBC/MSNBC legal analyst
On January 25, Roger Stone was arrested by special counsel Robert Mueller’s team for making false statements to Congress, obstructing justice and witness tampering. At their core, Stone’s alleged crimes involve covering up his involvement with the WikiLeaks release of stolen Democratic National Committee emails in the summer of 2016. But Stone’s indictment arguably buries the lead, because contained within his 24-page indictment are the evidentiary building blocks of a conspiracy that includes participation by “senior Trump Campaign officials,” even as the Mueller probe appears to approach its final act.
Roger Stone was a friend, adviser and confidant of President Donald Trump for decades and a member of the Trump presidential campaign until August of 2015. According to the indictment, however, Stone continued to work behind the scenes to assist Trump in his quest for the presidency after his official role ended. The indictment further details how Stone served as a go-between for the campaign in securing access to and information from WikiLeaks.
Stone’s indictment arguably buries the lead, because contained within his 24-page indictment are the evidentiary building blocks of a conspiracy.
We have all heard the president’s incessant claims of “no collusion” between his campaign and the Russians. It’s worth noting that collusion as a technical legal term mostly refers to violations of federal anti-trust law. Currently, both media and politicians have come to use the word as a sort of layman’s term for the more applicable crime of “conspiracy.” A conspiracy consists of two elements: First, there must be an agreement between two or more individuals to commit a crime and second, one of those individuals must take a step (called an “overt act”) toward committing that crime. Importantly, the agreement need not be written, formal or even expressly stated, and all members of the conspiracy need not know one another. It is enough that they are all working toward a common unlawful objective, like using stolen emails to gain an unfair advantage in an election.
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As a longtime federal prosecutor, I have drafted more indictments than I can count. When indicting a single individual for crimes he or she committed (as opposed to multiple individuals involved in a conspiracy) prosecutors rarely include references to the conduct of others. For example, a single-defendant witness tampering indictment typically will state something along the lines of, “On or about January 1, 2019, within the District of Columbia, defendant John Q. Public, threatened a witness with the intent to impede the witness’s truthful testimony in an official proceeding.” However, when indicting multiple individuals for participating in a conspiracy, those individuals are named, and their conspiratorial actions detailed.
Stone’s indictment reads like a typical conspiracy indictment, only without the conspiracy charge. Notably, there are several other individuals referenced in the Stone indictment (i.e., Person 1 — presumably Jerome Corsi; Person 2 — presumably Randy Credico; etc.). But most problematic for the Trump campaign are the following two passages: “During the summer of 2016, Stone spoke to senior Trump Campaign officials about Organization 1 [known to be WikiLeaks] and information it might have had that would be damaging to the Clinton Campaign;” “After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact Stone about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign.”
The Stone indictment is replete with references to the alleged misconduct of others carried out in a concerted effort to obtain and exploit the stolen DNC emails in order to help Trump and hurt the presidential campaign of Hillary Clinton. Most ominously, participants in this endeavor include senior Trump campaign officials, according to the indictment. Moreover, one such senior Trump campaign official “was directed to” coordinate with Stone for the purpose of acquiring/further exploiting the stolen emails. To be clear, acquiring/exploiting stolen property for one’s own use is a crime.
One obvious question raised by the Stone indictment is, who is the person that “directed” the senior Trump campaign official to undertake this criminal coordination with Stone? It seems logical that such a person would need to be pretty senior themselves, if they were directing another “senior official” to do something. (Then again, there is one “junior” person who might have had the requisite status to direct a senior campaign official — Donald Trump Jr.) Right now the only thing we can do is wait for further charges to materialize, or Mueller’s report to Congress.
In my professional opinion, then, the Stone indictment is a means to an end. Mueller almost certainly will use it as leverage to pressure Stone to become a cooperating witness. Given the strength of the “hard evidence” (emails, text messages, false sworn testimony, etc.), Roger Stone has little hope of avoiding conviction at trial. Cooperating with the Mueller probe is likely his only way to avoid jail time.
The Stone indictment also serves as a preview of indictments to come. The dots are getting easier and easier to connect. We learned in July 2018, via a separate Mueller indictment, that Russian operatives did indeed hack into the DNC’s computers and steal emails — emails that were then transferred to and weaponized by WikiLeaks. With the Stone indictment we learned that Stone, in cooperation with Corsi, Credico and others, communicated with WikiLeaks’ founder Julian Assange about the timing and subject matter of email releases. Senior Trump campaign officials also coordinated with Stone, with the apparent goal of using the stolen emails to hurt Hillary Clinton and thus help Trump win the election.
To be fair, the Stone indictment does not include enough information on its own to prove that the Trump campaign, or Trump himself, conspired to defraud the United States by gaining an unfair or unlawful advantage in the 2016 presidential election. And some have argued that rumblings that Mueller’s probe will be wrapping up relatively soon suggest he’s mostly done with indictments. I disagree. After Mueller’s newest revelations, the dark clouds of conspiracy seem soon to be followed by even more consequential thunder.