The Mueller Report: Presented with Related Materials by The Washington Post

by The Washington Post

Although CNI board member Charles Boyd said he may have seen Kislyak at the dinner,639 Simes, Saunders, and Jacob Heilbrunn—editor of the National Interest—all had no recollection of seeing Kislyak at the May 23 event.640

Between the April 2016 speech at the Mayflower Hotel and the presidential election, Jared Kushner had periodic contacts with Simes.648

According to Simes, after the Mayflower speech in late April, Simes raised the issue of Russian contacts with Kushner, advised that it was bad optics for the Campaign to develop hidden Russian contacts, and told Kushner both that the Campaign should not highlight Russia as an issue and should handle any contacts with Russians with care.651 Kushner generally provided a similar account of his interactions with Simes.652

On June 9, 2016, senior representatives of the Trump Campaign met in Trump Tower with a Russian attorney expecting to receive derogatory information about Hillary Clinton from the Russian government.

5. June 9, 2016 Meeting at Trump Tower On June 9, 2016, senior representatives of the Trump Campaign met in Trump Tower with a Russian attorney expecting to receive derogatory information about Hillary Clinton from the Russian government. The meeting was proposed to Donald Trump Jr. in an email from Robert Goldstone, at the request of his then-client Emin Agalarov, the son of Russian real-estate developer Aras Agalarov. Goldstone relayed to Trump Jr. that the “Crown prosecutor of Russia . . . offered to provide the Trump Campaign with some official documents and information that would incriminate Hillary and her dealings with Russia” as “part of Russia and its government’s support for Mr. Trump.” Trump Jr. immediately responded that “if it’s what you say I love it,” and arranged the meeting through a series of emails and telephone calls.

She lobbied and testified about the Magnitsky Act, which imposed financial sanctions and travel restrictions on Russian officials and which was named for a Russian tax specialist who exposed a fraud and later died in a Russian prison.679

From approximately 1998 until 2001, Veselnitskaya worked as a prosecutor for the Central Administrative District of the Russian Prosecutor’s Office, 677 and she continued to perform government-related work and maintain ties to the Russian government following her departure. 678 She lobbied and testified about the Magnitsky Act, which imposed financial sanctions and travel restrictions on Russian officials and which was named for a Russian tax specialist who exposed a fraud and later died in a Russian prison. 679 Putin called the statute “a purely political, unfriendly act,” and Russia responded by barring a list of current and former U.S. officials from entering Russia and by halting the adoption of Russian children by U.S. citizens. 680 Footnotes 677. Veselnitska a 11/ 20/ 17 Statement to the Senate Committee on the Judiciary, at 2;[ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~] 678. Testimony of Natalia Veselnitskaya Before the Senate Committee on Judiciary (Nov. 20, 2017) at 33; Keir Simmons & Rachel Elbaum, Russian Lawyer Veselnitskaya Says She Didn’t Give Trump Jr. Info on Clinton, NBC News (July 11, 2017); Maria Tsvetkova & Jack Stubbs, Moscow Lawyer Who Met Trump Jr. Had Russian Spy Agency As Client, Reuters (July 21, 2017); Andrew E. Kramer & Sharon LaFraniere, Lawyer Who Was Said to Have Dirt on Clinton Had Closer Ties to Kremlin than She Let On, New York Times (Apr. 27, 2018). 679. See Pub. L. No. 112-208 §§ 402, 404( a)( l), 126 Stat. 1502, 1502-1506. Sergei Magnitsky was a Russian tax specialist who worked for William Browder, a former investment fund manager in Russia. Browder hired Magnitsky to investigate tax fraud by Russian officials, and Magnitsky was charged with helping Browder embezzle money. After Magnitsky died in a Russian prison, Browder lobbied Congress to pass the Magnitsky Act. See, e.g., Andrew E. Kramer, Turning Tables in Magnitsky Case, Russia Accuses Nemesis of Murder, New York Times (Oct. 22, 2017); Testimony of Natalia Veselnitskaya Before the Senate Committee on Judiciary (Nov. 20, 2017), Exhibits at 1-4; Rosie Gray, Bill Browder’s Testimony to the Senate Judiciary Committee, The Atlantic (July 25, 2017).

Michael Cohen recalled being in Donald J. Trump’s office on June 6 or 7 when Trump Jr. told his father that a meeting to obtain adverse information about Clinton was going forward.708

Also in August 2016, a representative of the Russian Embassy contacted Sessions’s Senate office about setting up a meeting with Kislyak.820

VEB was (and is) the subject of Department of Treasury economic sanctions imposed in response to Russia’s annexation of Crimea.1153

Berkowitz met with Kislyak on December 12, 2016, at Trump Tower. 1150 The meeting lasted only a few minutes, during which Kislyak indicated that he wanted Kushner to meet someone who had a direct line to Putin: Sergey Gorkov, the head of the Russian-government-owned bank Vnesheconombank (VEB). Kushner agreed to meet with Gorkov. 1151 The one-on-one meeting took place the next day, December 13, 2016, at the Colony Capital building in Manhattan, where Kushner had previously scheduled meetings. 1152 VEB was (and is) the subject of Department of Treasury economic sanctions imposed in response to Russia’s annexation of Crimea. 1153

The email claimed that the officials wanted to offer candidate Trump “land in Crimea among other things and unofficial meeting with Putin.”

338. In July 2018, the Office received an unsolicited email purporting to be from Erchova, in which she wrote that “[ a] t the end of 2015 and beginning of 2016 I was asked by my ex-husband to contact Ivanka Trump . . . and offer cooperation to Trump’s team on behalf of the Russian officials.” 7/ 27/ 18 Email, Erchova to Special Counsel’s Office. The email claimed that the officials wanted to offer candidate Trump “land in Crimea among other things and unofficial meeting with Putin.” Id. In order to vet the email’s claims, the Office responded requesting more details. The Office did not receive any reply.

The Appointment Order authorized the Special Counsel’s Office “to prosecute federal crimes arising from [its] investigation” of the matters assigned to it.

The indictment charges all of the defendants with conspiracy to defraud the United States (Count One), three defendants with conspiracy to commit wire fraud and bank fraud (Count Two), and five defendants with aggravated identity theft (Counts Three through Eight).

A. Russian “Active Measures” Social Media Campaign On February 16, 2018, a federal grand jury in the District of Columbia returned an indictment charging 13 Russian nationals and three Russian entities—including the Internet Research Agency (IRA) and Concord Management and Consulting LLC (Concord)—with violating U.S. criminal laws in order to interfere with U.S. elections and political processes. 1276 The indictment charges all of the defendants with conspiracy to defraud the United States (Count One), three defendants with conspiracy to commit wire fraud and bank fraud (Count Two), and five defendants with aggravated identity theft (Counts Three through Eight).

The Office therefore determined that such persons did not have the knowledge or criminal purpose required to charge them in the conspiracy to defraud the United States (Count One) or in the separate count alleging a wire- and bank-fraud conspiracy involving the IRA and two individual Russian nationals (Count Two).

Although members of the IRA had contact with individuals affiliated with the Trump Campaign, the indictment does not charge any Trump Campaign official or any other U.S. person with participating in the conspiracy. That is because the investigation did not identify evidence that any U.S. person who coordinated or communicated with the IRA knew that he or she was speaking with Russian nationals engaged in the criminal conspiracy. The Office therefore determined that such persons did not have the knowledge or criminal purpose required to charge them in the conspiracy to defraud the United States (Count One) or in the separate count alleging a wire-and bank-fraud conspiracy involving the IRA and two individual Russian nationals (Count Two).

As explained in Section IV above, the Office’s investigation uncovered evidence of numerous links (i.e., contacts) between Trump Campaign officials and individuals having or claiming to have ties to the Russian government.

As explained in Section IV above, the Office’s investigation uncovered evidence of numerous links (i.e., contacts) between Trump Campaign officials and individuals having or claiming to have ties to the Russian government. The Office evaluated the contacts under several sets of federal laws, including conspiracy laws and statutes governing foreign agents who operate in the United States. After considering the available evidence, the Office did not pursue charges under these statutes against any of the individuals discussed in Section IV above—with the exception of FARA charges against Paul Manafort and Richard Gates based on their activities on behalf of Ukraine.

One of the interactions between the Trump Campaign and Russian-affiliated individuals—the June 9, 2016 meeting between high-ranking campaign officials and Russians promising derogatory information on Hillary Clinton—implicates an additional body of law: campaign-finance statutes.

The Office ultimately concluded that, even if the principal legal questions were resolved favorably to the government, a prosecution would encounter difficulties proving that Campaign officials or individuals connected to the Campaign willfully violated the law.

This Office has therefore charged some of those individuals with making false statements and obstructing justice.

Finally, although the evidence of contacts between Campaign officials and Russia-affiliated individuals may not have been sufficient to establish or sustain criminal charges, several U.S. persons connected to the Campaign made false statements about those contacts and took other steps to obstruct the Office’s investigation and those of Congress. This Office has therefore charged some of those individuals with making false statements and obstructing justice.

As an initial matter, this Office evaluated potentially criminal conduct that involved the collective action of multiple individuals not under the rubric of “collusion,” but through the lens of conspiracy law.

1. Potential Coordination: Conspiracy and Collusion As an initial matter, this Office evaluated potentially criminal conduct that involved the collective action of multiple individuals not under the rubric of “collusion,” but through the lens of conspiracy law. In so doing, the Office recognized that the word “collud[ej” appears in the Acting Attorney General’s August 2, 2017 memorandum; it has frequently been invoked in public reporting; and it is sometimes referenced in antitrust law, see, e.g., Brooke Group v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 (1993). But collusion is not a specific offense or theory of liability found in the U.S. Code; nor is it a term of art in federal criminal law. To the contrary, even as defined in legal dictionaries, collusion is largely synonymous with conspiracy as that crime is set forth in the general federal conspiracy statute, 18 U.S.C. § 371. See Black’s Law Dictionary 321 (10th ed. 2014) (collusion is “[a]n agreement to defraud another or to do or obtain something forbidden by law”); 1 Alexander Burrill, A Law Dictionary and Glossary 311 (1871) (“An agreement between two or more persons to defraud another by the forms of law, or to employ such forms as means of accomplishing some unlawful object.”); 1 Bouvier’s Law Dictionary 352 (1897) (“An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.”).

As relevant here, foreign nationals may not make—and no one may “solicit, accept, or receive” from them—“a contribution or donation of money or other thing of value” or “an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election.”

As relevant here, foreign nationals may not make—and no one may “solicit, accept, or receive” from them—“ a contribution or donation of money or other thing of value” or “an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election.” 52 U.S.C. § 30121( a)( 1)( A), (a)( 2). 1283 The term “contribution,” which is used throughout the campaign-finance law, “includes” “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101 (8)( A)( i). It excludes, among other things, “the value of [volunteer] services.” 52 U.S.C. § 30101( 8)( B)( i).

Foreign nationals are also barred from making “an expenditure, independent expenditure, or disbursement for an electioneering communication.” 52 U.S.C. § 30121(a)(1)(C). The term “expenditure” “includes” “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office.”

A “knowing[] and willful[]” violation involving an aggregate of $25,000 or more in a calendar year is a felony.

The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting

b. Application to June 9 Trump Tower Meeting The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting described in Volume I, Section IV.A. 5, supra. The Office concluded that, in light of the government’s substantial burden of proof on issues of intent (“ knowing” and “willful”), and the difficulty of establishing the value of the offered information, criminal charges would not meet the Justice Manual standard that “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Justice Manual § 9-27.220.

In brief, the key facts are that, on June 3, 2016, Robert Goldstone emailed Donald Trump Jr., to pass along from Emin and Aras Agalarov an “offer” from Russia’s “Crown prosecutor” to “the Trump campaign” of “official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to [Trump Jr.’s] father.”

Trump Jr. and Emin Agalarov had follow-up conversations and, within days, scheduled a meeting with Russian representatives that was attended by Trump Jr., Manafort, and Kushner.

Goldstone passed along an offer purportedly from a Russian government official to provide “official documents and information” to the Trump Campaign for the purposes of influencing the presidential election.

the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons:

There are reasonable arguments that the offered information would constitute a “thing of value” within the meaning of these provisions, but the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted “willfully,” i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation, see 52 U.S.C. § 30109( d)( l)( A)( i).

The phrases “thing of value” and “anything of value” are broad and inclusive enough to encompass at least some forms of valuable information.

Federal Election Commission (FEC) regulations recognize the value to a campaign of at least some forms of information, stating that the term “anything of value” includes “the provision of any goods or services without charge,” such as “membership lists” and “mailing lists.”

A foreign entity that engaged in such research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value.

To prove that a defendant acted “knowingly and willfully,” the government would have to show that the defendant had general knowledge that his conduct was unlawful.

Most significantly, the government has not obtained admissible evidence that is likely to establish the scienter requirement beyond a reasonable doubt. To prove that a defendant acted “knowingly and willfully,” the government would have to show that the defendant had general knowledge that his conduct was unlawful.

the government would unlikely be able to prove beyond a reasonable doubt that the June 9 meeting participants had general knowledge that their conduct was unlawful.

The government does not have strong evidence of surreptitious behavior or efforts at concealment at the time of the June 9 meeting.

While the government has evidence of later efforts to prevent disclosure of the nature of the June 9 meeting that could circumstantially provide support for a showing of scienter,

While the government has evidence of later efforts to prevent disclosure of the nature of the June 9 meeting that could circumstantially provide support for a showing of scienter, see Volume II, Section II.G, infra, that concealment occurred more than a year later, involved individuals who did not attend the June 9 meeting, and may reflect an intention to avoid political consequences rather than any prior knowledge of illegality. Additionally, in light of the unresolved legal questions about whether giving “documents and information” of the sort offered here constitutes a campaign contribution, Trump Jr. could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law. Given his less direct involvement in arranging the June 9 meeting, Kushner could likely mount a similar defense. And, while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues.

The Office would also encounter difficulty proving beyond a reasonable doubt that the value of the promised documents and information exceeds the $2,000 threshold for a criminal violation, as well as the $25,000 threshold for felony punishment.

iii. Difficulties in Valuing Promised Information The Office would also encounter difficulty proving beyond a reasonable doubt that the value of the promised documents and information exceeds the $ 2,000 threshold for a criminal violation, as well as the $ 25,000 threshold for felony punishment. See 52 U.S.C. § 30109( d)( 1).

Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting.

to establish a criminal campaign-finance violation, the government must prove that the defendant acted “knowingly and willfully.”

the “willfulness” requirement would pose a substantial barrier to prosecution.

Finally, the First Amendment could pose constraints on a prosecution.

iii. Constitutional Considerations Finally, the First Amendment could pose constraints on a prosecution.

the Office therefore charged some U.S. persons connected to the Campaign with false statements and obstruction offenses.

4. False Statements and Obstruction of the Investigation The Office determined that certain individuals associated with the Campaign lied to investigators about Campaign contacts with Russia and have taken other actions to interfere with the investigation. As explained below, the Office therefore charged some U.S. persons connected to the Campaign with false statements and obstruction offenses.

it is a crime to knowingly and willfully “make[] any materially false, fictitious, or fraudulent statement or representation” “in any matter within the jurisdiction of the executive . . . branch of the Government.”

a. Overview Of Governing Law False Statements. The principal federal statute criminalizing false statements to government investigators is 18 U.S.C. § 1001. As relevant here, under Section 1001( a)( 2), it is a crime to knowingly and willfully “make[] any materially false, fictitious, or fraudulent statement or representation” “in any matter within the jurisdiction of the executive . . . branch of the Government.” An FBI investigation is a matter within the Executive Branch’s jurisdiction. United States v. Rodgers, 466 U.S. 475, 479 (1984).

The statute also applies to a subset of legislative branch actions—viz., administrative matters and “investigation[s] or review[s]” conducted by a congressional committee or subcommittee.

In the D.C. Circuit, the government must prove that the statement was actually false; a statement that is misleading but “literally true” does not satisfy Section 1001(a)(2).

The government must prove four elements beyond a reasonable doubt to obtain a conviction under Section 1623(a): the defendant testified under oath before a federal grand jury; the defendant’s testimony was false in one or more respects; the false testimony concerned matters that were material to the grand jury investigation; and the false testimony was knowingly given.

Obstruction of Justice. Three basic elements are common to the obstruction statutes pertinent to this Office’s charging decisions: an obstructive act; some form of nexus between the obstructive act and an official proceeding; and criminal (i.e., corrupt) intent.

During the interview, Papadopoulos lied about the timing, extent, and ilature of his communications with Joseph Mifsud, Olga Polonskaya, and Ivan Timofeev.

i. George Papadopoulos . . . During the interview, Papadopoulos lied about the timing, extent, and nature of his communications with Joseph Mifsud, Olga Polonskaya, and Ivan Timofeev. With respect to timing, Papadopoulos acknowledged that he had met Mifsud and that Mifsud told him the Russians had “dirt” on Clinton in the form of “thousands of emails.” But Papadopoulos stated multiple times that those communications occurred before he joined the Trump Campaign and that it was a “very strange coincidence” to be told of the “dirt” before he started working for the Campaign. This account was false. Papadopoulos met Mifsud for the first time on approximately March 14, 2016, after Papadopoulos had already learned he would be a foreign policy advisor for the Campaign. Mifsud showed interest in Papadopoulos only after learning of his role on the Campaign. And Mifsud told Papadopoulos about the Russians possessing “dirt” on candidate Clinton in late April 2016, more than a month after Papadopoulos had joined the Campaign and been publicly announced by candidate Trump. Statement of Offense ¶¶25-26, United States v. George Papadopoulos, No. 1:17-cr-l82 (D.D.C. Oct. 5, 2017), Doc. 19 (“Papadopoulos Statement of Offense”).

Papadopoulos also made false statements in an effort to minimize the extent and importance of his communications with Mifsud.

Papadopoulos also falsely claimed that he met Polonskaya before he joined the Campaign, and falsely told the FBI that he had “no” relationship at all with her.

Papadopoulos’s false statements in January 2017 impeded the FBI’s investigation into Russian interference in the 2016 presidential election.

Given the seriousness of the lies and omissions and their effect on the FBI’s investigation, the Office charged Papadopoulos with making false statements to the FBI,

On October 7, 2017, Papadopoulos pleaded guilty to that charge pursuant to a plea agreement. On September 7, 2018, he was sentenced to 14 days of imprisonment, a $9,500 fine, and 200 hours of community service.

During the interview, Flynn made several false statements pertaining to his communications with the Russian ambassador.

iii. Michael Flynn Michael Flynn agreed to be interviewed by the FBI on January 24, 2017, four days after he had officially assumed his duties as National Security Advisor to the President. During the interview, Flynn made several false statements pertaining to his communications with the Russian ambassador.