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A new understanding of ‘collusion’ and obstruction

  • Author: Jennifer Rubin
    | Opinion
  • Updated: December 11, 2018
  • Published December 11, 2018

President Donald Trump on the South Lawn of the White House, Friday, Dec. 7, 2018, in Washington. (AP Photo/Evan Vucci)

Politicians, the press, President Donald Trump’s lawyers and White House staffers until now have thought of “collusion” as a plot operating in 2016 between then-candidate Donald Trump and Russians to manipulate the election. The Trump Tower meeting in June 2016 would be evidence of this, as would communications from Russians to Jerome Corsi to Roger Stone to Trump about WikiLeaks’s release of emails from Hillary Clinton’s campaign chairman. Trump calling for the release of stolen emails would be some evidence that Trump knew of it and approved it.

But what if "collusion" between Russians and Trump began much earlier in a plot to make hundreds of millions while Trump denied "any deals" with the Russians? Notice the word "synergy" in the sentencing memorandum filed by special counsel Robert Mueller in the Southern District of New York. According to Mueller, Michael Cohen was contacted shortly after Trump declared his candidacy, in November 2015, by a "trusted person" in the Russian government who could offer the campaign "political synergy" and "synergy on a government level." A proposed meeting between Individual-1 (Trump) and Russian President Vladimir Putin would have "'phenomenal' impact 'not only in political but in a business dimension as well.'" Translation: Trump would get rich and get help to win the presidency, all thanks to a foe of the United States.

The definition of synergy is "the interaction or cooperation of two or more organizations, substances, or other agents to produce a combined effect greater than the sum of their separate effects." In other words, collusion. If there is concrete evidence of Trump's approval (how could there not be?) to cooperate with Russia to make money and get some help, all of Trump's collusion denials crumble. Tying Trump to collusion in 2015 makes it interesting but nonessential to prove, for example, that he knew the Trump Tower meeting was ongoing. Knowledge of the overall scheme with a foreign power would be more than enough to incriminate Trump.

Now let's turn to obstruction. Obstruction, Trump's lawyers argue, can't be based on the president's exercising his normal duties. I am in the camp of many legal scholars who think that is dead wrong. But what if firing then-FBI Director James B. Comey isn't necessarily part of the obstruction scheme? What Trump - and every one of the Trump associates and family members - from 2016 through the present did was to deny the existence of any ties between Russia and him. Trump frequently over-denies bad facts, so "no deals" becomes "lightly looked" when the facts come out about the Trump deal in Moscow. All of the alleged lying - the false statement Trump dictated about the June 9, 2016, meeting, testimony by Cohen to Congress, testimony by Donald Trump Jr. to Congress, Paul Manafort's breached plea deal, etc. - all seem to have worked to hide Donald Trump's original sin: his alleged "synergy" with Russia during the campaign. The plot to lie, to cover up has gone on, possibly, through this year when both Cohen and Manafort had contacts directly or indirectly with the White House.

It's an adage in law enforcement that if a very large group is lying about the very same thing, chances are there is a conspiracy to lie. It's hard enough to get two people to line up stories; it's impossible to get a half-dozen or more to do so without some planning.

The foregoing is what we've divined from reading the documents filed on Friday and from publicly available information. If we have all collectively learned anything, it is that Mueller knows much more than what is publicly reported and much more than he reveals in his legal filings. Whether he has enough evidence to piece all of this together remains to be seen.

A word now about those, including lawyers and White House aides, who may have tried to cover up Trump's Russia connections and/or tried to coordinate false denials of the same: They are in a heap of legal trouble. The crime-fraud exception strips attorneys of their attorney-client privilege. The congressional testimony of anyone who misled Congress will wind up, if it's not already there, in Mueller's hands. When you lie for a president who is the midst of a grand scheme to cover up his conduct, you risk becoming a defendant in an obstruction-of-justice charge. It's not a small thing to lie publicly if you are knowingly assisting in an illegal conspiracy to obstruct justice. Your tweets and TV appearances, your statements to Congress and to investigators, your casual and not-so-casual lies to the White House press corps, all become evidence of the conspiracy. It's among the many reasons White House employees should not lie.

In sum, if synergy is collusion and Trump was in on it, we have collusion. It might not be illegal (e.g., lying to the public about a Russian deal isn't necessarily illegal) but it might be impeachable - the "it" being a fraud perpetrated on voters to convince them there were no Russian deals and there were no payoffs to women. If the collusion extended to coordination and assistance from a foreign government, would almost certainly be illegal.

And finally, the massive campaign of lies to diminish any connection to Trump's "synergy" can surely form the basis of a potential obstruction-of-justice charge, which would put participants in legal jeopardy and, in the case of Trump, smack in the middle of a coverup no different from a constitutional perspective than Richard Nixon's coverup of a third-rate burglary.

What is beyond dispute is that the coverup is always worse - and easier to prove - than the crime.

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