Collusion Is Not a Crime

“We do not get our opposition research from spies, we do not collaborate with Russian spies, unless we want to be accused of treason.”

–Richard Painter

Trump Russia Scandal is like a connect-the-dots picture that will later be colored in. Enough of the dots have been connected to figure out the picture, but not every dot has been connected, even though some parts closed to being colored in.

Lost in news coverage of the Senate’s struggles to push through wealthcare, President Trump’s bizarre tweet about Mika Brzezinski’s bleeding facelift, and the allegations that the President and Jared Kushner tried to blackmail/extort her and co-host/fiance Joe Scarborough by outing their once secret affair in The National Enquirer. This is by far the most neglected news in the last week. The Wall Street Journal broke the story, but Lawfare actually has a narrative written by one of the article’s sources: Matt Tait.

Tait is the CEO and founder of Capital Alpha Security, a UK based security consultancy which focuses on research into software vulnerabilities, exploit mitigations and applied cryptography. On Twitter, he’s known as @pwnallthethings; he tweets about tech and security issues. Last year, Tait had been contacted by Peter Smith, some sort of Republican operative, who died ten days after the story was published. He was 81 years-old. Jonathan Chait has a decent summary of the fact that the story would be direct of evidence of collusion:

the notion that there was no evidence of collusion before the Journal report has always been based on a tight definition of what constitutes evidence. It requires assuming that Trump’s on-camera request for Russia to hack Clinton’s emails during the campaign was a joke and that his confidante Roger Stone obtained advance knowledge of the timing of the WikiLeaks publication without any contact from Russia.

This is also not the first evidence of collusion between Russia and other Republican officials in the 2016 campaign. A relatively little-noticed Journal report from May found that Aaron Nevins, a Florida Republican operative, sought and received stolen Democratic voter-turnout files from Guccifer 2.0, a hacker believed by U.S. intelligence to be working for Russia. What’s new is that explicit evidence of collusion may now extend to the Trump campaign itself.

Tait’s narrative of events, written, it seems, in the form of a witness statement, making it hard to excerpt. It’s also more persuasive in full. Tait provides evidence to connects Russian hacks to the Trump campaign. Nevertheless, here as some salient tidbits:

I still do not fully understand the events I am going to describe, both what they reflected then or what they mean in retrospect. But I can lay out what happened, facts from which readers and investigators can draw their own conclusions…

After the Wikileaks dump of DNC documents,

I was contacted out the blue by a man named Peter Smith, who had seen my work going through these emails [on Twitter]. Smith implied that he was a well-connected Republican political operative…

Smith had… contacted me… about his conviction that Clinton’s private email server had been hacked—in his view almost certainly both by the Russian government and likely by multiple other hackers too—and his desire to ensure that the fruits of those hacks were exposed prior to the election. Over the course of a long phone call, he mentioned that he had been contacted by someone on the “Dark Web” who claimed to have a copy of emails from Secretary Clinton’s private server, and this was why he had contacted me; he wanted me to help validate whether or not the emails were genuine….

I wanted to find out whether this person was merely some fraudster wanting to take Smith for a ride or something more sinister: that is, whether Smith had been contacted by a Russian intelligence front with intent to use Smith as part of their scheme by laundering real or forged documents.

Over the course of our conversations, one thing struck me as particularly disturbing. Smith and I talked several times about the DNC hack, and I expressed my view that the hack had likely been orchestrated by Russia and that the Kremlin was using the stolen documents as part of an influence campaign against the United States. I explained that if someone had contacted him via the “Dark Web” with Clinton’s personal emails, he should take very seriously the possibility that this may have been part of a wider Russian campaign against the United States. And I said he need not take my word for it, pointing to a number of occasions where US officials had made it clear that this was the view of the U.S. intelligence community as well.

Smith, however, didn’t seem to care…

Although it wasn’t initially clear to me how independent Smith’s operation was from Flynn or the Trump campaign, it was immediately apparent that Smith was both well connected within the top echelons of the campaign and he seemed to know both Lt. Gen. Flynn and his son well. Smith routinely talked about the goings on at the top of the Trump team, offering deep insights into the bizarre world at the top of the Trump campaign.

It is no overstatement to say that my conversations with Smith shocked me. Given the amount of media attention given at the time to the likely involvement of the Russian government in the DNC hack, it seemed mind-boggling for the Trump campaign—or for this offshoot of it—to be actively seeking those emails. To me this felt really wrong.

In my conversations with Smith and his colleague, I tried to stress this point: if this dark web contact is a front for the Russian government, you really don’t want to play this game.

It doesn’t take long for another bombshell to hit the news. The New York Time reported yesterday that 

Trump’s eldest son Donald Trump Jr. met with a Russian lawyer supportive of Russian President Putin after she offered to give him information that “individuals connected to Russia” were helping Trump rival Hillary Clinton,Trump Jr., White House senior adviser Jared Kushner and former Trump campaign manager Paul Manafort attending the meeting in June 2016 in the hope of gaining information that would be helpful to now-President Trump’s campaign, Jo Becker, Matt Apuzzo and Adam Goldman report at the New York Times.

The sources were multiple and from the White House, not the intelligence community.

What should be clear to everyone at this point is the probability is extremely high that the Trump campaign colluded with Russia. Outside of antitrust law, however, collusion is not a crime. Are the activities of the Trump campaign then a big old nothingburger as Fox News pundits argue? No. The media have been using the word “collusion,” and their indictments apply only to the court of public opinion. As Lawfare editors write at Foreign Policy,

The key point, for present purposes, is that collusion, in and of itself and to the extent it took place, is a political problem, not a legal one. The president will not have to answer for collusion as such in any court. His legal problem, rather, will arise — if it ever arises — only once we know the manner of any collusion and how that activity maps onto the criminal code. Either way, Trump may have to answer to the country if the evidence shows he was willing to do business with an adversary foreign intelligence service to release dirt on a domestic political opponent. Disloyalty of that sort may well be a crime in the eyes of the president’s fellow citizens, if not under the letter of the law.