Yes he's a criminal, but he's more than that and we don't know what to call it

Trump’s complicity in the Russian hacking operation and his campaign’s contacts with the Russians present a more complicated picture.

No, Mueller does not appear to have developed evidence that anyone associated with the Trump campaign was involved in the hacking operation itself. And no, the investigation did not find a criminal conspiracy in the veritable blizzard of contacts between Trumpworld and the Russians. But this is an ugly story for Trump.

Here’s the key point: If there wasn’t collusion on the hacking, it sure wasn’t for lack of trying. Indeed, the Mueller report makes clear that Trump personally ordered an attempt to obtain Hillary Clinton’s emails; and people associated with the campaign pursued this believing they were dealing with Russian hackers. Trump also personally engaged in discussions about coordinating public relations strategy around WikiLeaks releases of hacked emails. At least one person associated with the campaign was in touch directly with the Guccifer 2.0 persona—which is to say with Russian military intelligence. And Donald Trump Jr. was directly in touch with WikiLeaks—from whom he obtained a password to a hacked database. There are reasons none of these incidents amount to crimes—good reasons, in my view, in most cases, viable judgment calls in others. But the picture it all paints of the president’s conduct is anything but exonerating.

Call it Keystone Kollusion.

On July 27, 2016, Trump in a speech publicly called for Russia to release Hillary Clinton’s missing server emails: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” The reference here was not to the hacking the GRU had done over the past few months but to the hypothesized compromise of Clinton’s private email server some time earlier—an event that there is no particular reason to believe took place at all.

The GRU, like many Trump supporters, took Trump seriously, but not literally. “Within approximately five hours of Trump’s announcement,” Mueller writes, “GRU officers targeted for the first time Clinton’s personal office.” In other words, the GRU appears to have responded to Trump’s call for Russia to release a set of Clinton's emails the Russians likely never hacked by launching a new wave of attacks aimed at other emails.

Trump has since insisted that he was joking in that speech. But the public comments mirrored private orders. After the speech, “Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails,” the report states. “Michael Flynn … recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.”

Two of the people contacted by Flynn were Barbara Ledeen and Peter Smith. Ledeen had been working on recovering the emails for a while already, Mueller reports. Smith, only weeks after Trump’s speech, sprang into action himself on the subject. Ledeen ultimately obtained emails that proved to be not authentic. Smith, for his part, “drafted multiple emails stating or intimating that he was in contact with Russian hackers”—though Mueller notes that the investigation “did not establish that Smith was in contact with Russian hackers or that Smith, Ledeen, or other individuals in touch with the Trump Campaign ultimately obtained the deleted Clinton emails.”

In other words, it wasn’t that Trump was above dealing with Russian hackers to get Hillary Clinton’s emails. The reason there’s no foul here, legally speaking, is only that the whole thing was a wild conspiracy theory. The idea that the missing 30,000 emails had been retrieved was never more than conjecture, after all. The idea that they would be easily retrievable from the “dark web” was a kind of fantasy. In other words, even as a real hacking operation was going on, Trump personally, his campaign, and his campaign followers were actively attempting to collude with afake hacking operation over fake emails.

Then there are the more-than-100 pages detailing Russian contacts and links with the Trump campaign and business. Mueller looks at these through a legal lens; he’s a prosecutor, after all, looking to answer legal questions. But I found myself reading it through a very different lens: patriotism.

Mueller concludes, after detailing the contacts, that, “the investigation established multiple links between Trump Campaign officials and individuals tied to the Russian government. Those links included Russian offers of assistance to the Campaign. In some instances, the Campaign was receptive to the offer, while in other instances the Campaign officials shied away. Ultimately, the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.”

It is not hard to see how he came to the conclusion that charges for conspiracy would not be plausible based on the contacts Mueller describes. For starters, a number of the individual incidents that looked deeply suspicious when they first came to light do look more innocent after investigation. These include the change in the Republican Party platform on Ukraine at the Republican Convention, for example, and the various encounters between Jeff Sessions and other campaign officials, on the one hand, and the omnipresent former Russian ambassador, Sergey Kislyak, on the other. On these matters, Mueller does seem to have found that nothing untoward happened.

Even those incidents that don’t look innocent after investigation don’t look like criminal conspiracy either. So, for example, George Papadopoulos found out about the Russians having “dirt” on Clinton in the form of “thousands of emails,” but he does not appear to have reported this to the campaign—though he was trying to arrange a Trump-Putin meeting at the time. Even if he hadreported it to the campaign, it doesn’t constitute conspiracy for the Trump campaign to be aware of Russian possession of hacked Clinton emails. The campaign, even if it did learn of what Papadopoulos had heard, never did anything about it.

The Trump Tower meeting is one of the most damning single episodes discussed, since the campaign’s senior staff took a meeting with Russian representatives having been promised disparaging information on Clinton as part of the Russian government’s support of Trump. Yet even here, while the campaign showed eagerness to benefit from Russian activity, the meeting was unproductive and nothing came of it. Where exactly is the conspiracy supposed to be? I can think of a number of possible answers to this question, and Mueller entertained one related to campaign-finance violations, but I certainly can’t argue that an indictment here is an obvious call.

So, too, the extended negotiations over Trump Tower Moscow. The investigation makes clear that Trump—who spent the campaign insisting he had “nothing to do with Russia”—was lying through his teeth the whole time. He was, in fact, seeking Russian presidential support for his business deal through June 2016. But it’s not illegal to have contacts with Russians, including Putin’s immediate staff, to try to build a building. And it’s not obvious how this sort of “collusion” with the Russian government could amount to coordination or conspiracy on concurrent Russian electoral interference.

At the same time, Mueller here is far more reticent than he is about the IRA operation, where he affirmatively finds that there is no evidence of conspiracy. He does not clear the president or his campaign. There are, in my view, two major reasons for the difference between his conclusions on these matters and his conclusions about the IRA operation. The first is the sheer volume of contacts, which really is truly breathtaking. These contacts were taking place even as it was publicly revealed that the Russians had been behind the Democratic Party hacks, even as the releases of emails took place, even as the incumbent administration was publicly attributing the attacks to Russia, even as—through the transition—the outgoing administration was sanctioning Russia for them. The brazen quality of meeting serially with an adversary power while it is attacking the country and lying about it constantly militates against a stronger conclusion that there is no evidence of conspiracy—at least not in the absence of solid answers to every question.

And there were not solid answers to every question. The Mueller team was clearly left unsatisfied that it understood all of Carter Page’s activities while he was in Moscow in July 2016, for example. Similarly, Donald Trump Jr., the office reports in its discussion of the Trump Tower meeting, “declined to be voluntarily interviewed by the Office.” This line is followed by a redaction for grand jury information, raising the question of whether Trump Jr. asserted his Fifth Amendment right against self-incrimination or indicated an intent to do so.

And then there’s Paul Manafort. Mueller is candid that he was unable to determine why Manafort was having campaign polling data shared with his long-time employee, Konstantin Kilimnik. Mueller was also unable to determine what to make of repeated conversations between Kilimnik—who has alleged ties to Russian intelligence—and Manafort about a Ukrainian peace plan highly favorable to Russia. And while Mueller could not find evidence of Manafort’s passing the peace plan along to other people in the campaign, he notes that the office was unable “to gain access to all of Manafort’s electronic communications” because “messages were sent using encryption applications” and that Manafort lied to the office about the peace plan. As for the polling data, “the Office could not assess what Kilimink (or others he may have given it to) did with it.” So while the office did not establish coordination in this area, it was clearly left with residual suspicions—and with unanswered questions.

In other words, on the legal side, the evidence isn’t all that close to establishing coordination in the sense that conspiracy law would recognize, either on the hacking side or with respect to the contacts. But the positive enthusiasm for engaging Russian hackers over emails, the volume of contacts, the lies and the open questions make it impossible to say that there’s no evidence of conspiracy.

The really interesting question here is not legal. It is historical and political: How should we understand the relationship between Trump and Russia? Put another way, what is the story these contacts tell if it’s not one of active coordination? They surely aren’t, in the aggregate, innocent. They aren’t normal business practice for a presidential campaign. What are they?

For what it’s worth, here’s what I see in the story Mueller has told on Trump engagement with the Russians over the hacking. I see a group of people for whom partisan polarization wholly and completely defeated patriotism. I see a group of people so completely convinced that Hillary Clinton was the enemy that they were willing to make common cause with an actual adversary power at a time it was attacking their country to defeat her.

To me, it matters whether the conduct violated the law only in the pedestrian sense of determining the available remedies for it—and in guiding whether and how we might have to change our laws to prevent such conduct in the future. I don’t know the right word for this pattern of conduct. It’s not “collusion,” though it may involve some measure of collusion. It’s not “coordination” or “conspiracy.” But in Clinton, Democrats, and liberals, the Trump campaign saw a sufficiently irreconcilable enemy that it looked at Vladimir Putin and saw a partner. That may not be a crime, but it is a very deep betrayal.

The counterintelligence dimensions of the entire affair remain a mystery.

Because the Mueller investigation was born out of a counterintelligence investigation, there has been an enduring impression that it had both criminal and counterintelligence elements. I have assumed this myself at times. How these two very different missions integrated within the Mueller probe has been much discussed. The Mueller report answers this question, and the answer is actually striking—and from my point of view alarming: The Mueller investigation was a criminal probe. Full stop.

It was not a counterintelligence probe. Mueller both says this directly and also describes how the counterintelligence equities were handled. Here’s how Mueller describes his investigation: “Like a U.S. Attorney’s Office, the Special Counsel’s Office considered a range of classified and unclassified information available to the FBI in the course of the Office's Russia investigation, and the Office structured that work around evidence for possible use in prosecutions of federal crimes …” A counterintelligence investigation is not structured around evidence for possible use in prosecutions of federal crimes.

Mueller then answers the question of what happened to the counterintelligence components of the investigation: the FBI took responsibility for them. “From its inception,” Mueller writes, “the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI.”

There were regular meetings between the office and the FBI Counterintelligence Division to facilitate this transfer of information. “For more than the past year,” he goes on, “the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send—in writing—summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices.” The report deals only, Mueller says, with “information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.”

In other words, the Mueller investigation was a criminal probe only. It had embedded FBI personnel sending back to the FBI material germane to the FBI’s counterintelligence mission. But Mueller does not appear to have taken on the counterintelligence investigative function himself.

This leaves me worried. After the blood-letting at the bureau that saw the entire senior leadership replaced precisely as it was engaged with counterintelligence questions involving Trumpworld and Russia, who at the bureau now is going to push such questions? The incentive structure at the FBI cannot favor senior leadership carrying the ball on this. It also cannot favor individual agents allowing themselves to get assigned to matters that would put them in the president’s cross-hairs.

So I worry about a counterintelligence gap. Mueller, the person with the independence to take this matter on, construed his role narrowly as a prosecutor and set up a one-way street for counterintelligence information to go back to the FBI. And the FBI, the entity with the mandate, has every incentive to play it cautious.

It would be the deepest of ironies if the Mueller investigation showed evidence that the president had committed crimes and had committed impeachable offenses, and if he had painted a remarkable historical portrait of the relationship between Trumpworld and the Russian government, but if at the same time, the core counterintelligence concerns that gave rise to it and that have haunted the Trump presidency from the beginning went unaddressed.