Is ‘Collusion with Russia’ Over? By Andrew C. McCarthy
Mueller may be seeking to defend at least the investigative decisions made by the FBI and the Justice Department, institutions he served for many years.
Special Counsel Robert Mueller has been a busy fellow for the past week. Rapid fire, his indictment of several Russian nationals for meddling in the 2016 election has been followed by a guilty plea, for lying to investigators, from a lawyer tied to Trump-campaign figures Paul Manafort and Richard Gates; a new indictment against Manafort and Gates that, as anticipated, added tax- and bank-fraud charges (in Virginia) to already existing money-laundering charges (in Washington); and finally, just breaking as this is written, a guilty plea from Gates on charges of defrauding the United States and lying to the FBI.
As President Trump’s champions emphasize, what is most notable about this array of allegations is an omission: Nowhere has the special counsel charged any kind of criminal collusion between the Trump campaign and the Kremlin.
Of course, “collusion with Russia” was the suspicion — or, skeptics would counter, the carefully crafted political narrative — that launched the Mueller investigation. So has the collusion theory been abandoned? Is the fundamental rationale for the Justice Department’s appointment of a special counsel, which has addled the Trump administration for seven months, now a big “Never mind”?
I don’t think so. At least, I don’t think that’s the way Mueller is looking at it.
To be sure, not only is there no “collusion” allegation in the new indictments; the Trump campaign is barely mentioned. It has no ostensible relevance to the charges against Manafort, Gates, and the lawyer, Alex van der Zwaan. To the limited extent that the campaign is mentioned in the indictment against the Russian nationals, any contacts that campaign officials had with Russians are said to have been unwitting. That fact would seem to cut sharply against the notion of collusion, for had there been a collusive Trump–Russia relationship, there would have been no need for Russian operatives to dupe Trump-campaign officials.
Add to the mix the other charges Mueller has filed against Michael Flynn and George Papadopoulos, who have pled guilty. In neither instance did Mueller allege any kind of criminal conspiracy between the Trump campaign and the Putin regime. Both defendants served the campaign, and both had contacts with apparent Putin-regime operatives (the Russian ambassador in Flynn’s case, more-shadowy figures claiming regime ties in Papadopoulos’s). Yet Mueller permitted each defendant to resolve the case by pleading guilty to a single count of making false statements to the FBI — a mere process crime, and one that, by branding them as liars, would undermine their effectiveness as cooperating witnesses if there were any eventual “collusion” case against other campaign figures. Again, this cuts against the idea that Mueller is contemplating a collusion case.
At the very least, I believe, Mueller intends to illustrate that he showed appalling judgment in putting his campaign in the hands of Manafort and Gates, who were up to their necks in collusion with agents of Putin’s regime.
Still, that does not mean he has entirely given up the quest. At the very least, I believe, Mueller intends to demonstrate that FBI and Justice Department suspicions about possible collusion were reasonable, even if there is no criminal case to be made against the president or his campaign. Although it is highly unlikely that Trump will be accused of a collusion crime, Mueller intends to illustrate that he showed appalling judgment in putting his campaign in the hands of Manafort and Gates, who were up to their necks in collusion with agents of Putin’s regime.
Dmytro Firtash and Semion Mogilevich
Beginning in the early 2000s, Manafort was a consultant and business partner of Dmytro Firtash, a Ukrainian who rose from service in the Soviet-era military forces to become a billionaire oligarch in the post-Soviet era, prominent in energy, precious metals (particularly titanium), and finance. According to a 2008 State Department cable exposed by WikiLeaks, Firtash acknowledged that, to do business in Ukraine after the Soviet Union fell, he needed the permission of the powerful Russian crime boss Semion Mogilevich. (Not surprisingly, Firtash denies having said any such thing.)
A 300-pound, Moscow-based Ukrainian reputed to be the Russian mafia’s “boss of bosses,” Mogilevich has been on the FBI’s “Ten Most Wanted Fugitives” list. He is charged in a racketeering indictment in Philadelphia. The scheme is said to have bilked investors out of $150 million.
Firtash is a close confederate of Viktor Yanukovich, whose Kremlin-backed Party of Regions governed Ukraine until it was driven out, and Yanukovich fled to Moscow, in 2014. Manafort was a political consultant for Yanukovich’s party, and his thoroughly corrupt administration, for a decade.
A good chunk of Firtash’s phenomenal wealth derives from his control of a Russian-Ukranian energy company, RUE (RosUkrEnergo AG). From 2004 into 2009, RUE was the middleman responsible for brokering natural-gas transactions between Ukranian-owned Naftogaz and Gazprom, the Russian-owned energy conglomerate (which conveniently co-owned RUE with Firtash). Yulia Tymoshenko, the former Ukranian prime minister and Yanukovich’s arch political rival, alleges that Firtash skimmed enormous profits from these deals and kicked back shares of the ill-gotten gains to top Ukrainian energy and political officials. She further alleges that Manafort assisted Firtash in laundering the millions in skimmed profits through various overseas and U.S. accounts and investment vehicles.
The federal civil lawsuit that Yulia Tymoshenko filed in New York against Firtash, Mogilevich, Yanukovich, Manafort, and others was eventually tossed out on jurisdictional grounds. It is worth noting here, though, that her allegations are echoed in the charges that Mueller has filed against Manafort and Gates — money-laundering, tax and bank fraud, failure to register as an agent of Ukraine and the Party of Regions, and so on.
Oh, want to hear another interesting coincidence? Firtash has also been charged in a major federal criminal fraud case in Chicago. The indictment, from which Firtash has been fighting extradition, involves a scheme to bribe officials in India in connection with a titanium-mining project. Because of the importance and international implications of the prosecution, it has been overseen by the fraud section of the Department of Justice. And who would be the chief of the fraud section? Well, that would be Andrew Weissmann — or at least it was until he was detailed to be Mueller’s top deputy on the Russia investigation. The Chicago case against Firtash is now being run by the fraud section’s acting chief, Sandra Moser — Weissman’s deputy when he was in charge.
Small world.
The Kremlin-Backed Yanukovich Regime
In 2009, when Yulia Tymoshenko was Ukraine’s prime minister, she managed, at least for a time, to shut down Firtash’s gravy train by eliminating RUE’s middleman role in Russia–Ukraine natural-gas deals. The next year, she ran for president against Yanukovych, the Putin-backed, Manafort-abetted candidate. Back in 2004, Yanukovych momentarily won a razor-thin presidential election victory, but the election result was voided on allegations of massive voter fraud (surprise!). Shortly afterwards Yanukovych lost the do-over (to Viktor Yushchenko). In the 2010 race, Yanukovych beat Tymoshenko by three percentage points, and there was no run-off despite corruption claims.
On taking the reins of power, Manafort’s client set about crushing his opposition, like a good Putin protégé. Among other steps, the judiciary was purged of resisters, the constitution was scrapped, and Yanukovych authorized prosecutions against his political rivals, including Tymoshenko, the leader of the opposition. In addition, not only were Firtash’s associates installed in the Fuel and Energy Ministry and at Naftogaz, to reestablish the siphoning of profits; the Yanukovych government further colluded with Firtash in an arbitration action to recoup what RUE lost when it was cut out of the action in 2009. According to Tymoshenko, Firtash and RUE were awarded 12.1 billion cubic meters of gas, the equivalent of a staggering $3.5 billion.
Tymoshenko plausibly alleges that the energy profits lined the pockets of Firtash, Mogilevich, their fellow oligarchs, and such Western aiders and abettors as Manafort. Just as important, the skim flowed to officials in Yanukovych’s regime, including those who prosecuted her. The case was largely based on her management of gas transactions with Russia’s Gazprom after she eliminated the brokerage role of Firtash’s RUE. In October 2011, the Ukrainian court found Tymoshenko guilty and sentenced her to seven years in prison. The prosecution was panned as a travesty by the European Union, the United States, and the rest of the West.
The van der Zwaan Connection
This brings us to this week’s least well-understood development in Mueller’s investigation, the guilty plea of Alex van der Zwaan. In a week in which media coverage was swallowed whole by the mass-murder shooting at the Stoneman Douglas High School in Parkland, Fla., the prosecution of a British lawyer from a white-shoe international law firm has largely been sloughed off as a matter of Mueller trying to justify his sprawling investigation: adding yet another conviction to a mere process crime — lying to the FBI, just like Flynn and Papadopoulos.
It’s worth a closer look.
For one thing, van der Zwaan is not just any young lawyer. He is the son-in-law of yet another Ukrainian-born billionaire oligarch in Putin’s orbit, German Khan. Khan is an owner of, among other things, Alfa Bank. That may ring a bell, and not just because Alfa is the largest commercial bank in Russia. First, it has been reported that when the FBI first became interested in possible Trump–Russia connections, in the spring of 2016, it was because of server traffic between Alfa Bank and at least one server, at Trump Tower in New York City, that was connected to the Trump organization. The Bureau appears to have concluded that there was nothing untoward about this tie, which may have been spam-related.
Manafort and Gates are said to have helped Yanukovych retain the law firm Sadden Arps to compile a report that assesses the sham trial of Yulia Tymoshenko and soft-pedals the egregious violations of civil rights and due process.
Second, Alfa Bank is a topic of some significance in the so-called Steele dossier (see here, one of the reports dated September 14, 2016). The former British spy, whose work we now know was commissioned by the Clinton campaign, alleges that — according to an unidentified “top level Russian government official” — the Alfa group has heavily bribed Putin over the years and is the dictator’s go-to adviser on Russian policy toward the U.S. It is a pregnant allegation in the context of the dossier’s claim that, in 2016, Putin’s main policy was getting Trump elected — a dubious claim that is not advanced by the former intelligence officer’s sloppy misspellings of “Alfa” (repeatedly rendered as “Alpha”).
One of Mueller’s major allegations against Manafort and Gates involves a report prepared by van der Zwaan’s firm, Skadden, Arps, Slate, Meagher & Flom. Manafort and Gates are said to have helped Yanukovych, intensely rebuked by Western governments over the sham trial of Tymoshenko, retain the highly respected law firm to compile a report that assesses the trial and soft-pedals the egregious violations of civil rights and due process.
The firm’s team on the report was headed by former Obama White House counsel Gregory Craig. Van der Zwaan is one of several lawyers who also worked on it. According to Mueller’s indictments, Manafort and Gates helped Yanukovych’s regime (a) retain Skadden Arps, (b) funnel $4 million in laundered funds to pay for the report, and (c) roll out the report to American and other Western government officials as a defense of the regime. (See, e.g., first Manafort and Gates indictment, para. 22.) Like Manafort and Gates, neither van der Zwaan nor his firm registered with the Justice Department as an agent of Ukraine (and neither has been charged with failing to do so — unlike Manafort and Gates).
In mid-August 2016, Manafort was cashiered as chairman of the Trump campaign after it surfaced in media reports that he had covertly been paid millions of dollars by Yanukovych and the Party of Regions. Note further: The Steele dossier claims that Yanukovych — after fleeing to Russia on being driven from power in 2014 — informed Putin that he had made lavish payments to Manafort. (Like other key allegations in the dossier, this one was reported in the media before Steele incorporated it, through unidentified sources, as part of his depiction of a Trump–Russia conspiracy — see dossier, report dated August 22, 2016.)
The relevance of van der Zwaan to Mueller’s probe is clearly to illustrate that, after the depth of their Ukrainian work became public, Manafort and Gates labored to cover their tracks. In September 2016, Gates called van der Zwaan and instructed him to contact a “longtime business associate of Manafort and Gates in Ukraine” (a Russian-speaker identified only as “Person A” in the offense statement submitted to the court in connection with van der Zwaan’s guilty plea). To prepare for this call, Gates sent van der Zwaan a “preliminary criminal complaint,” which apparently indicated that formal criminal charges could soon be filed against Manafort, Skadden Arps (identified as “Law Firm A”), and Ukraine’s former justice minister.
Thereafter, van der Zwaan made the call to Person A, passed along the information in Russian, and then followed up with calls to “the senior partner on the Report at Law Firm A” (likely a reference to Gregory Craig) and to Gates. He not only took notes but recorded these three calls. On September 12, Person A called van der Zwaan to ask, in Russian, that van der Zwaan contact him, using an encrypted application.
When van der Zwaan was interviewed by the FBI in early November 2017, he lied about his contacts with Gates and Person A. He also lied about his participation in the roll-out of the report, pretending to have played a minor, passive role. In fact, he had provided an advance draft of the report to a public-relations firm hired by Ukraine’s foreign ministry. He had also coached the foreign ministry and Gates on how the report could be spun in Ukraine’s favor to try to justify Tymoshenko’s conviction. When Gates had these contacts with van der Zwaan about Person A and the report, he was still working as deputy chairman of the Trump campaign.
Oleg Deripaska
Meanwhile, clearly on Mueller’s radar but thus far unrelated to his investigation (so far as we know) is another oligarch, Oleg Deripaska. He is a Russian-born billionaire aluminum magnate known to be close to Putin. In fact, Putin has interceded with the U.S. government to protest the denial of visas to Deripaska — the State Department has refused the magnate entry owing to his reputed ties to Russian organized crime. (The New York Times reports that the Obama administration relented and allowed Deripaska to visit the country eight times between 2011 and 2014 — while it was “resetting” relations with the Kremlin.) Deripaska did business with Manafort and Gates while they were working with Ukraine, and he alleges that they swindled him out of millions of dollars. Their dealings have resulted in at least three lawsuits.
As the Times notes, an Associated Press report claims that, in 2005, Manafort offered Deripaska a plan to influence American politics and media coverage to Putin’s benefit. Deripaska has denied the report, while Manafort has denied that his business dealings with Deripaska were intended to help the Russian regime. Of more current interest, according to the Washington Post (which relies on anonymous sources), in July 2016, while he was the Trump-campaign chairman, Manafort sent an email to an overseas intermediary offering to give Deripaska private briefings on the presidential race. The Post added that Mueller’s investigators have the email and other documents said to be pertinent.
Reportedly, Deripaska has offered to cooperate in investigations of Russian meddling in the election, but he first wants immunity from prosecution, which the government has understandably been unwilling to give him.
Mueller’s Continuing Interest in the Collusion Angle
To summarize, Manafort and Gates had extensive ties to operatives connected to Putin’s regime, especially Kremlin-backed Ukrainians. By mid-2016, when they became, respectively, chairman and deputy chairman of the Trump campaign, the depth of these connections may not have been fully understood, but the fact that they existed was widely known. Trump nevertheless brought them on board. While holding these lofty campaign positions, Manafort and Gates continued to have contact with these operatives. Deripaska was offered campaign briefings by Manafort, while Gates’s contacts with van der Zwaan appear to have been aimed at covering up the nature and extent of Gates and Manafort’s work for the regime of Yanukovych, a Putin puppet.
Of course, none of this means that Donald Trump colluded with Russia. None of it means that the Trump campaign was aware of, much less complicit in, the Kremlin’s efforts to interfere in the U.S. election — nor that those efforts were geared at helping Trump win rather than sowing discord in our society and political system.
It is undeniable, though, that Manafort and Gates had a long history of colluding with the Kremlin, or at least its agents, at the time they joined the Trump campaign in very prominent roles. This collusion continued to some degree while they were involved in the campaign — although there is as yet no suggestion that it had anything to do with their work on the campaign.
I believe Mueller has two things in mind.
First, if there was any Trump-campaign collusion with Russia, and it was in any way known to candidate Trump, Manafort and Gates are the ones best positioned to know. Therefore, they are worth squeezing hard to induce them to cooperate — as it appears that Gates is now doing. This does not necessarily mean Mueller wants to make a case on Trump. It does mean, however, that he intends to be thorough — he wants the collusion question answered once and for all.
Second, and more likely, Mueller will want to defend the investigative decisions made by the FBI and the Justice Department — institutions he served at the highest levels for many years.
Mueller could be endeavoring to make a record that the FBI and Justice Department acted reasonably, albeit over-anxiously, when they credited the reporting of Christopher Steele — a source they understandably trusted from prior experience, who was reporting suspicions that were plausible in light of the Manafort and Gates history.
Mueller cannot refute every claimed irregularity. There is no defending, for example, the intelligence leaks to the media; the blatantly disparate treatment between the kid-gloves Clinton-emails investigation and the zealous effort to derail Trump; or the presentation to the FISA court of the traitorous dossier allegations, against Trump and his campaign, that had not been corroborated by the FBI. Yet Mueller could be endeavoring to make a record that the FBI and Justice Department acted reasonably, albeit over-anxiously, when they credited the reporting of Steele — a source they understandably trusted from prior experience, who was reporting suspicions that were plausible in light of the Manafort and Gates history. Mueller could be contemplating a report that portrays as justifiable the Obama administration’s use of the law-enforcement and intelligence apparatus of government to investigate the presidential campaign of the opposition party.
In short, the special counsel may be preparing to argue that the Obama officials were acting on rational suspicions, not partisan politics. He may be laying the groundwork to argue that, while political, law-enforcement, and intelligence officials made mistakes, the main culprit was Trump’s judgment in recruiting Manafort and Gates — particularly under circumstances in which the candidate was already publicly flattering Putin in an unseemly way.
Trump fans wedded irrevocably to the conceit that there was no way, no how their man would ever have colluded with Russia would be left cold by this. Others, like myself, who see “collusion with Russia” as primarily a political narrative that the Obama administration, Democrats, and the anti-Trump media settled on to rationalize Hillary Clinton’s stunning loss and to hamstring Trump’s administration, will be underwhelmed. But I’m betting Mueller figures most of the country would agree with him.
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