Why conclusive evidence on Trump-Russia collusion may take decades to surface
The recent court filings from the Special Counsel’s Office and the Southern District of New York implicate the President in multiple felony violations of campaign finance laws. This has renewed hopes among many of the Left that Special Counsel Robert Mueller will be able to prosecute President Trump for criminal collusion between his campaign and the Russian government in the 2016 elections.
However, those waiting for this judgment may be sorely disappointed in the end, according to one legal scholar.
Dr. Dov H. Levin, Assistant Professor of International Relations at the Department of Politics and Public Administration at the University of Hong Kong, recently remarked in an article published on Lawfare that he believes with a high degree of certainty that the Russian government colluded with President Trump’s 2016 campaign, but proving may be a legal impossibility for Mueller.
“My research has led me to two conclusions. On one hand, it is more likely than the public record suggests, given what the public already knows about this intervention and applying parallels to similar past efforts, that such collusion had indeed occurred,” Dr. Levin writes.
“On the other hand, given how collusion has actually been carried out in known real-life cases, it is highly unlikely that Mueller will be able to find incontrovertible proof for it.”
Dr. Levin agrees with the common sense argument that the smoke arising from public reports is too thick to ignore. The pieces of circumstantial evidence surrounding senior campaign members like Paul Manafort, Carter Page, and even the President’s son Don Jr. and their meetings with confirmed Russian operatives are voluminous and growing. But, proving that those circumstances amount to criminal collusion is where the legal waters turn to stone, Levin argues.
To understand why it’s so hard for prosecutors to prove allegations of collusion, Dr. Levin offers an explanation of how murky Partisan Electoral Interventions can be and how the practice’s secretive nature has remained largely unchanged since the early days of the Republic.
Dr. Levin defines Partisan Electoral Intervention as “when a sovereign country intentionally takes specific actions to influence an upcoming election in another sovereign country using a covert or overt manner in order to help or hurt one or more candidates.”
In regards to the 2016 election, Vladimir Putin said unequivocally that he preferred Trump. More on that in a moment. For now, it is important to note that Partisan Electoral Intervention dates back to the earliest days of our Republic.
One of the first recorded examples is when French Ambassador to the United States Pierre-Auguste Adet worked to elect Thomas Jefferson rather than John Adams as the second president of the country in hopes that the former would shred the Jay Treaty, which was circulating Congress at the time.
The Jay Treaty was particularly onerous to the French following the American Revolutions because the French believed the U.S. would back them in their fight against Great Brittain in 1794. The treaty nullified any chance of us getting involved. At the time, President Washington seemed to approve of the Treaty, which later became France’s “foremost grievance” against the country.
To try and stop the Treaty from being signed, The Directorate — a five-person panel governing France at the time — enlisted Adet to bribe senators, but France’s financial shortfalls hampered these efforts.
Afterward, Adet leaked his personal diplomatic cables to the press, hoping to show how the Treaty would divide Americans. The cables generated a lot of public attention, and some accounts suggest it inextricably showed France favored Jefferson. Even so, Jefferson eventually lost the election. However, this notorious practice has remained woven into the American political fabric ever since.
Nearly 200 years later, in 1968, then-candidate Richard Nixon’s presidential campaign coordinated efforts with Anna Chan Chennault, a “wealthy supporter of Taiwanese President Chiang Kai-shek, co-chair of Republican Women for Nixon and confidante of South Vietnamese President Nguyen Van Thieu,” according to one characterization by Politico. Reports suggest Chennault assured Thieu that Nixon could get a better deal for South Vietnam after the U.S. withdrew its troops from the country. Chennault told Thieu that the Democrats, led by Lyndon Johnson, would sellout Saigon for peace, and if Thieu stayed away from the negotiating table, Johnson would look foolish and his party’s 11th-hour snooker would fail.
Johnson and Hubert Humphrey, both of whom were running against Nixon in that years’ election, intercepted communications between Thieu and his envoy in the U.S. expressing they were in contact with Nixon’s campaign and subsequently reported it to the FBI. Chennault’s phones were tapped, but after months of investigations, no one found a “smoking gun” that tied Nixon to the discussion. That November, Nixon won the White House, and the scandal seemingly disappeared.
Dr. Levin argues these events illustrate his four key points of collusion: 1) Collusion is common among intervening countries and the beneficiaries of their actions (such as a political campaign); 2) Collusion is generally unpopular among the public, thereby mandating that some sense of secrecy be kept; 3) Given the social and political ramifications, colluders will generally use the most sophisticated means of communication available; and, 4) Any subsequent follow-ups are generally held in the same secret manner.
But how do these actions relate to the election interference in 2016?
As Dr. Levin writes,
“ The 2016 election interference has some of the telltale signs of past electoral interventions: a clear preference by the intervening power for one of the local actors; multiple senior personnel in the Trump campaign with unusually strong pre-election ties to Russia who might make plausible conduits for making and maintaining contact; at least one known meeting between the Trump campaign and a possible “deniable” messenger of the Russian government in which a possible offer of electoral assistance was raised, and clear willingness by keymembers of the Trump campaign to collude with Russia for this purpose. There is also some preliminary evidence to suggest that the Trump campaign’s messages and the fake news and propaganda secretly spread by the Russians in the run-up to the election were quite congruent.”
This description can easily be construed as a misleading argument implying that collusion occurred. However, Dr. Levin reminds us there are other elements which must be considered. For one, the number of people on the campaign with knowledge of this kind of collusion is probably very small. Second, colluding parties are meticulously careful about how they transmit sensitive information given the rise of advanced signals intelligence in the U.S. and around the world. And, third, a colluder can hide their conduct from investigators, even under the pretense of a cooperation agreement, if the prosecutor lacks the “smoking gun” evidence against that person.
It is conceivable that the number of Trump campaign officials with knowledge of collusion is small enough to exclude the president. However, public reporting casts doubt on this, especially when one considers that most of the activities scrutinized for collusion occurred either on or were about Trump properties.
The June meeting in Trump Tower Manhattan is a prime example. Not only did the meeting reportedly take place directly below Trump’s personal office, both of Trump’s sons and his campaign chairman were also present at the meeting. It is also noteworthy that this meeting, which was reportedly about transmitting “Russian dirt” on Hillary Clinton to the Trump campaign, occurred in a non-digital platform. This suggests that the parties were going to great lengths to ensure whatever was discussed in the meeting stayed behind once they left the room. Oftentimes, meeting attendees offered Trump and Russia some plausible deniability, such as the appearance of Natalia Veselnitskaya — a lawyer with ties to the Russian government. These circumstances raise doubts as to whether or not Trump and his campaign knew about the meeting in advance (which would amount to another federal crime).
Oftentimes, face-to-face meetings are used as ways to relay information without raising undue suspicions. Presidents, both domestic and foreign, have used this practice for centuries. It is curious that this President has met with or planned to meet Russian President Vladimir Putin at least 5 times — including official visits and side meetings while he has been in office. No U.S. President has met with Putin more in their first two years in office.
The Kremlin has also suggested the two meet again before the end of 2018.
So, what is necessary to prove collusion?
One obvious way to find unambiguous evidence of collusion is to have someone flip. Theoretically, this is what Manafort’s cooperation with the Special Counsel’s Office represented until Mueller publicly revealed that Manafort broached the cooperation agreement by lying about his contacts with White House officials and Russian oligarch Oleg Deripaska. However, one can reasonably assume that Manafot’s reversal came because his lawyers discovered Mueller had no “smoking gun” against Manafort.
Dr. Levin argues that another way to prove collusion is for “Mueller… to find evidence of a handful of private meetings with few participants, which were conducted with people who have advanced professional training in hiding their tracks and avoiding surveillance.” Given the likely non-digital nature of such contacts, Mueller would have to do this without using signals intelligence or advanced cyber-warfare capabilities.
So it seems as though the public will have to wait and see what Mueller’s report to Congress includes, knowing it may not have room for every allegation levied against the President.