It is in the interest of the Trump White House to sow as much conceptual confusion about the Russia scandal in the public imagination as possible.
It is simultaneously in the interest of news organizations to be as hedged and cautious as possible in the course of making serious accusations about the president of the United States.
The collision of these two tendencies has become the source of an incredible amount of misinformation about the stakes of the special counsel probe and the underlying controversy.
Against an unfolding backdrop of senior Trump officials facing federal criminal indictments and entering plea agreements with Robert Mueller, the White House and Donald Trump’s lawyers have embraced the suspiciously self-contradictory view that the Trump campaign didn’t collude with Russians as they subverted last year’s election—but if it had colluded, such collusion would be perfectly permissible.
“In several conversations with me,” writes the New Yorker’s legal correspondent Jeffrey Toobin, “[Trump’s attorney Jay] Sekulow emphasized that collusion between the Trump campaign and Russia, even if it did take place, wouldn’t be illegal.”
“For something to be a crime, there has to be a statute that you claim is being violated,” Sekulow told Toobin. “There is not a statute that refers to criminal collusion. There is no crime of collusion.”
The mainstream press has by and large accepted this framing, taking pains to insist with each new revelation that no evidence has yet emerged proving the Trump campaign colluded with Russia. On Friday, Trump’s former national security adviser Michael Flynn pleaded guilty to lying to the FBI about his conversations with Russian officials, in which he sought to undermine the Obama administration’s response to Russian election interference. The New York Times, like many other outlets, offered the pointed caveat that the statement of Flynn’s offenses “show[ed] no direct evidence of collusion with Russia.”
This framing gets things almost completely backward: There is more than enough evidence to say definitively that the Trump administration colluded with Russia, and there is every reason to believe the plot encompassed criminal activity, even if that activity remains invisible for now.
Sekulow’s claim that no applicable statute refers to collusion is true, but it is also misdirection. Collusion is a lay term describing a pattern of political misconduct that may include several different crimes. The extent of collusion that has been uncovered and made public thus far does not include any obvious crimes. But there should be no conceptual confusion about what the scandal means, and why it’s a scandal even if it entailed no criminal activity at all.
We know that Russian spies approached the Trump campaign offering assistance in the election multiple times. At least twice, Russians dangled the lure of “dirt” on Hillary Clinton, including stolen emails, and both times, Trump campaign officials (George Papadopoulos and Donald Trump, Jr.) expressed interest. Trump, Jr. was particularly enthusiastic about the idea of cooperating with the Russians, and shortly after he welcomed Russian spies to Trump tower for a meeting about “dirt” on Hillary Clinton, he coordinated messaging with Wikileaks, which operated last summer and fall as a cutout for Russian hackers.
After repeatedly communicating to Russia (in public and in private) that they welcomed interference in the election, Trump and his aides cast public doubt on whether the saboteurs were Russians at all. When Trump went on to win the election after benefiting from this interference, members of his inner circle, through Michael Flynn, secretly connived with Russia to subvert the countermeasures the American government had undertaken as penalties for Russia’s interference.
“Whether or not these actions amounted to a crime,” writes former FBI counterintelligence agent Asha Rangappa, “it was a coordinated, covert effort directly against the interests of the United States. It threw off what was likely a lot of planning and analyses and contingencies that various agencies had prepared. I think when we focus exclusively on the criminality aspect, we (continue to) miss how these efforts essentially aided and abetted a hostile foreign state who attacked our country. That is the big picture.”
If the story were to end where we are right now, with no further confessions or indictments or revelations, it would still amount to the biggest scandal in American political history. In the real world, Robert Mueller has flipped Flynn and allowed him to plea to (much) lesser crimes, most likely in exchange for incriminating evidence against Trump campaign and administration highers-up.
Meanwhile, Trump’s pretense that Flynn did no wrong but to lie to Vice President Mike Pence is falling apart, as it becomes increasingly clear that Flynn was honest with the entire team about his communication with Russian agents, and they all agreed to tell lies about it to the public. Trump admitted on Saturday that he knew Flynn had repeated those lies to the FBI at the time he ousted Flynn, and at the time he beseeched FBI Director James Comey to let Flynn off the hook. The president is for this and a myriad other reasons the subject of an obstruction investigation.
At this point, to say collusion allegations remain unproven is materially misleading. Collusion has been conclusively proven; we are in the process of learning how extensive it was, and whether, in the course of it, American conspirators committed federal crimes.