Collusion Doesn’t Have to be Criminal to be an Ongoing Threat
by Alex Finley, Asha Rangappa and John Sipher
During the hearing with Deputy Attorney General Rod Rosenstein on Wednesday, some members of the House Judiciary Committee did not try to conceal their attempt to discredit and derail Special Counsel Robert Mueller’s investigation into possible collusion between the Trump campaign and Russia during the 2016 election. The way that the Russia investigation has been framed has made it easy for them to do that: Its legitimacy appears to rest on finding a smoking gun of criminality – a simple yes or no on whether any of the cast of characters in this saga committed a serious federal offence.
But making this merely about the bright line between illegality (criminality) and legality means that most Americans are missing what is right under our noses. To wit, there is no question that Russia made multiple, unprecedented attempts to penetrate a U.S. presidential campaign, that its approaches were not rebuffed, and that its contacts were sensitive enough that everyone, to a person, has concealed them. These facts might never be adjudicated inside a courtroom – they may not even be illegal – but they present a clear and present national security threat that we cannot ignore. We write here to broaden the public understanding of that security threat, and to underscore why the principal part of Mueller’s investigation—which is a counterintelligence probe not a criminal one—is performing a vital role for our country.
Assets: Tools In A Toolbox
Russia’s intelligence services, like any intelligence service worth its salt, aims to recruit a variety of assets (a.k.a. sources). Assets are a spy’s version of a “toolbox.” Different intelligence operations require different tools, so spies target a wide range of potential assets who vary according to their skills, access, and how they can be utilized. How witting they are of their role and how much control the foreign intelligence service (FIS) has over them will often depend on how far the asset will have to go to serve the FIS’s purpose.
It’s useful to think of recruitment – the process of getting an asset to work on behalf of an intelligence service – in dating terms. Let’s say a guy spots a girl he’d be interested in dating. The first thing he does is assess if she might be interested in dating him, too. To save himself potential embarrassment, he might send a friend over to the girl first, to see how she feels. If she shows interest, then the guy will officially ask her out. Of course, he doesn’t propose marriage on the first date: there is a period of courtship. It might be slow, it might be fast, but if all goes well and it’s a good match, the marriage proposal is the ultimate step. When it happens, it probably won’t come as a surprise; in fact, in the spy context, it might not have to be stated out loud at all.
In the world of espionage, the “dating” ritual might look something like this: An intelligence officer (IO) spots a target of interest, likely based on their access to information or resources of value. To assess that person’s willingness to cooperate, the IO gives the target a task to test their reaction. Usually this will be something easy, but slightly unethical – like, say, asking a political candidate’s team to meet with people who offer (potentially stolen) dirt on the opposing candidate. As protection, the IO might send someone else on his behalf, known as a “cutout,” to set up this type of meeting – this ensures plausible deniability in the event that the meeting goes south. But if the target performs the task as desired, they have shown a willingness to “cross the line,” even if they haven’t done so yet. (And even if nothing of value is handed over in that initial meeting.)
From there, the IO has a “hook” to meet with the target again, and then again. Each time, the IO will slowly ask for more, ratcheting up the risk each time – but always offering enough of an incentive to make it worthwhile for the target to accept. As the tasks requested of the target become dicier, the IO will begin taking the relationship underground. By the time the IO asks the target to do something clearly illegal, not only has the relationship become clandestine, but the IO has collected a whole string of compromising actions the target has performed along the way but probably shouldn’t have – and now the IO has leverage over the target.
In short, the key to recruitment is time and subtlety. An intelligence officer doesn’t make a target compromise himself in one fell swoop. Rather, it happens incrimentally with each small act that “crosses the line” giving the intelligence officer a bit more control. Before the target knows it, the IO has made the target into an asset.
A Russian Courtship
From an intelligence standpoint, the numerous Russian approaches to the Trump campaign look like a textbook recruitment effort. Campaign officials were an attractive target for Russian intelligence, of course. They provided a chance to catapult Russian influence into the Oval Office, and to obtain the Holy Grail: to manipulate a sitting presidential administration to act in a way that is favorable to Russia. (And even if their candidate did not make it into the White House, they would have a grip on him and some of his most powerful associates for years to come.)
But this ambitious goal would not have been foreseeable at the beginning of Russia’s operation. After all, Trump and many of his associates were already on Russia’s radar screen well before he was running for president. This isn’t because Russian intelligence services are geniuses who maneuvered a grand scheme into place. Rather, it is because Russia’s intelligence services, like all intelligence services, are always on the lookout for new assets to add to their toolbox that could be useful in the future. An obvious target would be a wealthy business person interested in working on projects in Russia, or places like Ukraine, or benefiting from Russian investments. By the time a pie-in-the-sky opportunity like a presidential election came along, much of the groundwork for further outreach would already be in place.
The sheer number of Russia’s attempted contacts with the highest level of a U.S. presidential campaign and then transition team is mind-boggling. They employed Ambassador Sergei Kislyak to engage members of Trump’s team, like Jeff Sessions, Michael Flynn, and Jared Kushner. They put the head of a Kremlin-linked bank under U.S. sanctions in front of Kushner. They used Trump business partners to arrange a meeting between a Russian lawyer and others (including with ties to Russian intelligence) with Donald Trump Jr., Paul Manafort, and Kushner. They used the National Rifle Association to get another Russian banker close to Putin, Alexander Torshin, in front of Trump Jr. They approached George Papadopolous through a Russian professor in an effort to set up a meeting with Russian President Vladimir Putin (and who also gave information that the Kremlin had dirt on Clinton). They got Carter Page to provide one of their intelligence officers with industry documents and invited him to Moscow and elsewhere for meetings. They used Russian oligarch Oleg Deripaska to keep pressure on Manafort, who was already being paid by Russian intelligence. They partnered with WikiLeaks which contacted Trump Jr. They feted Mike Flynn at a gala for Russia Today and paid him.
And those are only the contacts we know about; U.S. and European intelligence communities probably know about others. But this list is enough to show that the Russian effort to influence the Trump team involved multiple players, some covert and some less so. The Russians might not have directly orchestrated all of the approaches – in some cases, they may have simply exploited existing relationships – but all of the contacts were useful to them and would have most likely been reported back to the Kremlin in some form.
The context of the approaches also reveals that Russian intelligence agencies were working along multiple fronts. We can imagine cyber thieves collecting DNC e-mails, a domestic counterintelligence service providing potential dirt on and assessments of Trump surrogates’ escapades in Moscow, the Ministry of Foreign Affairs leveraging unwitting but pliable contacts, and the SVR—Russia’s external intelligence agency, akin to the CIA—recruiting potential agents-of-influence in and around the campaign itself. Each avenue provided an angle that Russian intelligence could exploit as needed.
The Pattern of Deception
By accepting certain meetings, members of the Trump team communicated that they were indeed interested in having a relationship. They welcomed the prospect of receiving stolen material on their opponent, and even sought it out. Nevertheless, to date, there is no indication that Russia’s efforts proceeded beyond the initial stages. It’s possible, then, that Russia’s efforts to infiltrate the Trump campaign went nowhere.
Here’s where the deception on the part of Trump and his team is telling. Trump and his crew never, not once, considered reporting Russian approaches to their campaign, even after law enforcement and intelligence officials made it public that Russia had attempted to interfere with the election. Rather, at every turn, they encouraged unethical behavior and misled the American people, Congress, and even the FBI, claiming repeatedly they had nothing to do with Russia or Russians – even as evidence continues to surface that reveals otherwise.
Further, since taking office, the Trump administration has strenuously resisted taking any action against Russia for its attack on our democratic process. In fact, the President continues to call the intelligence community’s assessment a “hoax” and has taken no meaningful steps to protect against further interference in the future. President Trump even went as far as trying to return Russia’s spy compounds which were confiscated by the Obama administration as a part of its sanctions. Even after Congress passed a bill reinforcing sanctions against Russia this past August, the Trump administration has yet to enforce them.
This inexplicable policy position, combined with the administration’s pattern of deception, suggests two explanations (which are not mutually exclusive): The first is that Russia’s relationship with at least some members of the campaign did proceed, and involved ethically or legally questionable activities that the campaign needs to conceal. Second, it may be that members of the Trump campaign have engaged in problematic activities known to Russia – related or unrelated to the election itself – which Russia now holds as a sword of Damocles over them. Either way, it strongly suggests that Russia could have leverage over those who are now in charge of protecting the United States, rendering them unable to act solely in the interest of our country.
Is Collusion a Crime?
Most of the things intelligence officers and assets do—particularly during the process of recruiting someone—aren’t necessarily illegal. In the context of the Russia investigation, First Amendment concerns and the powers afforded to the office of the President make it especially difficult to pin down a crime. For instance, frequently meeting a known intelligence officer, while certainly unwise, is not itself a crime. Neither is it clear that listening to what information a foreigner may have to offer a campaign crosses the tripwire of campaign finance laws. And given the president’s almost unfettered discretion in the area of foreign affairs, disputing his decision to remove or not enforce sanctions wanders into a constitutional thicket.
This isn’t to say that Mueller won’t find evidence of criminal acts in his investigation. Based on the indictments and plea deals we’ve seen so far, it’s clear that at least some of the people associated with the Trump campaign have committed crimes. But the U.S. criminal code is narrow: It encompasses specific activities like computer hacking, or money laundering, or lying to federal agents. Mueller will also proceed cautiously, only bringing charges where both the law and evidence are extraordinarily clear. What becomes public through the criminal justice system, then, will only be a sliver of what actually took place between Russia and the Trump campaign behind the scenes.
The only crime that might reveal a larger effort is conspiracy, which is an agreement among two or more people to commit a crime. But it’s unlikely that there would be evidence of an explicit quid pro quo in the intelligence world. This is because intelligence operations are “compartmentalized”—that is, each asset only knows their own role, but not necessarily to what extent others might be involved – so no one asset would understand or know the full breadth of an entire operation. And since the recruitment process typically happens with a wink and a nod, rather with a brute insistence on favors, the trail of evidence needed to prove conspiracy (as well as an underlying crime) may be sparse.
But the truth is that “collusion” with the Kremlin doesn’t have to be criminal to be dangerous. If the Trump campaign received offers of assistance from Russia, and they did nothing to discourage that help (or even encouraged it), they are indebted to a foreign adversary whose national interests are opposed to those of the United States. You can be sure that at some point, Putin will come to collect, if he has not done so already – and when it comes to protecting our democracy the administration will be a puppet of a foreign adversary, not our country’s first line of defense. While the potential criminal aspects of this case need to be investigated, we need to take a good look at what we already know. The national security threat is staring us right in the face.