Good prosecutors always have a theory of the case. While much of special counsel Robert Mueller’s evidence remains unknown, the contours of the criminal conspiracy case against President Trump are coming into view. The public might hear it at an impeachment trial in the Senate next year (if the House goes Democratic) or in a jury trial (if the Supreme Court, which has never ruled on the constitutionality of criminally prosecuting a president, allows it). Either way, here is a reasonable approximation of the story the prosecutor would tell the court and the American people in his opening argument:
May it please the court. Ladies and gentlemen: This is a simple case about a plot hatched during the 2016 presidential election. The story begins with close business contacts between the Defendant, Donald John Trump, and Russian oligarchs, including some who obtained and distributed illegally hacked emails belonging to the Democratic Party in order to help Trump win. It continues with Trump and his associates—after receiving stolen goods—promising a major favor to the Russians in return for their criminal activity. And it ends with the Defendant Trump trying to cover up his crimes. Actually, the true end of the story is in your hands—when justice and accountability are restored.
First, a little Latin. I took Latin in high school but remember almost nothing. I have, however, picked up a few Latin phrases over the years. One of them, which will be an important part of this case, is quid pro quo. It literally means, in English, “something for something.” An exchange of favors. You scratch my back and I’ll scratch yours.
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Now, all of us engage in favor swapping or quid pro quos every day. Nothing wrong with it most of the time. If you cook dinner, I’ll do the dishes. But when the “quid” is an illegal act, it’s a whole different story. Then the “quo” is often illegal, too, even if it wouldn’t be on its own. If you rob a bank and use the money you stole to help me, and in return I promise to help you out, then I’m in a lot of trouble, too, especially if I try to throw the cops off the scent.
In this case, you will learn that in return for the Russians stealing and releasing emails, the Defendant Trump and members of his staff promised—publicly and privately—that after being sworn in, the new president would drop U.S. government sanctions against the Russian government and Russian oligarchs who are close to Russian President Vladimir Putin. The stolen emails and a variety of other illegal Russian efforts to hurt the Clinton campaign were the currency the Russians used to barter for sanctions relief.
That quid pro quo is the criminal conspiracy at the heart of this case. As you will learn, a criminal conspiracy means that the people involved had a mutual agreement, spoken or unspoken, to commit acts that were illegal. They didn’t have to sit in some dark room plotting or tell each other to commit crimes. An informal understanding to break the law constitutes a conspiracy.
What was the motive for the crime?
For Trump, it was to use any edge he could to win the election, even if it was clearly illegal, and to stay on good enough terms with Russian oligarchs to allow himself and his family and associates loan relief and other business deals with them if he lost.
For the Russians, the motive was to harm Hillary Clinton, who as secretary of state under President Obama had been critical of their behavior and pushed successfully for sanctions against the Russian government and oligarchs. They saw a chance to both win sanctions relief and fulfill a longstanding plan to disrupt American elections.
You will hear testimony that Trump and his campaign manager, Paul Manafort, a longtime pro-Russian lobbyist, had extensive financial ties to Russians through the Bank of Cyprus and other banks and a series of real estate investments and golf club developments that offered Russian oligarchs a way to launder their dirty money. Russians lent tens of millions of dollars to both Trump and Manafort, leaving both indebted to criminals who hoped to collect at least partly through new American policies toward oligarchs.
You will learn a lot in this case about how these Russian criminals operated. For decades, Russian intelligence has specialized in what is called kompromat—obtaining compromising information to be used for blackmail or extortion. The information gathered on Trump going back to his visits to the Soviet Union in the 1980s gave the Russians leverage over him in his business activities that extended into his campaign and presidency. In 2014, 2015 and 2016, Trump—by then a declared presidential candidate—continued his efforts to build a Trump Tower in Moscow even after sanctions were imposed on Russia following the annexation of Crimea and military aggression against Ukraine. You will learn that the Trump Organization’s relations with a bank sanctioned by the United States broke the law.
The core of the criminal conspiracy began in March of 2016 when Russian hackers, backed by high-ranking officials in the Russian government, infiltrated the computers of the Democratic National Committee. Within a few weeks, in April of 2016, the Russians informed the Trump campaign through one of Trump’s foreign policy advisors, George Papadopoulos, that they had “dirt” on Clinton in the form of thousands of stolen emails. You will hear testimony that Papadopoulos had Trump’s personal blessing for his meetings with Russians.
Coming from foreigners, the “dirt” wasn’t simply opposition research; it was the fruit of a crime—emails hacked from the Democratic National Committee and from Clinton’s campaign chairman, John Podesta. All of this was part of a well-organized, wide-ranging and criminal effort by Russian operatives to meddle in the American election in dozens of states.
The events of June, 2016, are of critical importance in this case. You will learn that on June 3, the Defendant’s son, Donald Trump Jr., received an email from co-conspirator Rob Goldstone, who represented a Russian oligarch, Aras Agalarov, a longtime friend of both Trump and Putin who had partnered with Trump on the 2013 Miss Universe pageant and urged him to seek the presidency. Goldstone’s email said that as “part of Russia and its government’s support for Trump,” he wanted to send Trump Jr. “information that would incriminate Hillary.” Goldstone, in an obvious reference to the stolen emails, described it as “high level and sensitive information.” Trump Jr. said the damaging information about Clinton would be especially helpful “later this summer”—when the conspiracy would pick up steam. On June 7, Goldstone and Trump Jr. exchanged follow-up emails arranging for a meeting to take place on June 9 at Trump Tower.
Now, something else happened on June 7 that you will see video of in this case, because it is incriminating in the context of the rest of the evidence. On June 7, four days after Goldstone offered the Trump campaign the “dirt”—emails on Hillary Clinton—and on the same day the campaign made arrangements to receive it, Defendant Trump had just won the New Jersey Republican primary. He decided to give a little preview of the next week and announced that on the following Monday, he would give “a major speech” in which he would be “discussing all of the things that have taken place with the Clintons.”
Publicly discussing the stolen emails was so obviously illegal and thus harmful to his campaign that cooler heads prevailed; the “major speech” never happened. But the evidence will show that Trump was fully aware of the existence of the stolen emails and prepared to use them—like an accomplice to a bank robbery planning to spend the money stolen from the bank.
Two days later came the June 9 meeting at Trump Tower—a meeting that you will hear a lot about it this case. In attendance from the Trump campaign were Donald Trump Jr., Paul Manafort, and Jared Kushner, the candidate’s son-in-law. Trump himself was fully apprised of the meeting. Having provided the “quid”—the stolen emails—the Russians in attendance wanted to discuss the “quo”—the lifting of sanctions against Russian oligarchs.
At this point in the case, we will ask you to shift your attention forward by a year, to July 8, 2017. Accounts of the June 9, 2016 meeting at Trump Tower have appeared in the press. Candidate Trump is now President Trump and he is flying aboard Air Force One and anxious to protect his son, his son-in-law and himself from legal trouble. You will hear testimony that the Defendant Trump and his staff knew exactly what they were doing in covering up the truth about the June 9 meeting. You will also learn that the statement Trump helped concoct proves a major overt act of the conspiracy.
To avoid having Donald Jr. admit that the group had discussed receiving the stolen emails, President Trump and his aides claimed the subject of the meeting was “adoption.” By the end of this trial, you will have heard many examples of Defendant Trump’s lies. But this statement was actually true, though woefully incomplete. The June 9 meeting involved both a criminal discussion of stolen emails and a criminal discussion of adoption. Defendant Trump knew of and approved both ends of the quid pro quo.
In this part of the case, you will learn about the Magnitsky Act. It was named for a Russian lawyer and dissident who died in 2009 in police custody in Moscow. After the Magnitsky Act was signed by President Obama in 2012, President Putin retaliated by banning the adoption of Russian infants by American parents. This eventually led to the poison promises at the center of the conspiracy: In exchange for a promise to lift the Magnitsky Act and other sanctions if Trump won the election, the Russians promised to release more stolen emails harmful to Hillary Clinton’s campaign and—of more interest to infertile American parents than Trump campaign operatives—to resume permission for adoption of Russian babies.
The Russians didn’t wait long to fulfill their end of the corrupt bargain. Less than a week after the Trump Tower meeting, they began releasing the stolen emails through WikiLeaks and a Russian-connected hacker known as Guccifer 2.0. The leaks accelerated the following month on the eve of the Democratic Convention. Defendant Trump’s old friend and longtime political dirty tricks operative, Roger Stone, knew about the stolen emails from an early point. He communicated with both WikiLeaks and Guccifer 2.0.. You will learn that his alibi has collapsed. More illegal collusion with the Russians took place through Cambridge Analytica and SCL Group, all hired for the campaign by Jared Kushner[1] and Steve Bannon. These firms—employing Russians—wrongly used data from as many as 50 million Facebook users on behalf of the Trump campaign which also improperly used the National Rifle Association to raise Russian money.
Several of the elements of the criminal conspiracy took place in full public view, as the Defendant Trump sought to “hide in plain sight.” On July 30, 2016, Trump publicly encouraged the Russian government to continue its hacking operations and “to find the 30,000 emails that are missing” from Clinton’s private email server. Had this invitation to a hostile foreign power to hack into an American election taken place in private, it would have been considered damning evidence. It is no less incriminating for having been offered in public.
The same goes for another public act in this time period—the changing of the Republican Party platform to water down its long-standing criticism of Russian aggression against Crimea and Ukraine. You will learn from the testimony of Republican delegates that this sharp departure from Republican Party principles came at Candidate Trump’s personal direction. He ordered no other changes in the party platform, which is viewed abroad as an important indication of government policy should that party come to power. Had he delivered this radical change in policy to the Russians in private, it would have been viewed as criminal inducement. The public version is, too.
Throughout this trial, please keep in mind that not only has the Defendant Trump as president favored lifting of sanctions on Russia, he has refused to acknowledge what every intelligence agency has confirmed—that Russia attacked the American electoral system in 2016 on behalf of the Trump campaign.
From the beginning of the campaign until the present, Trump—who routinely blasts even members of his own party and staff—has not uttered a word of criticism of Russia or Putin. The Defendant knows that any criticism of Putin risks exposure of Russia’s extensive financial stakes in his businesses.
That conspiracy continued at least through the fall and winter of 2016-2017. In September and October of 2016, Donald Trump Jr. had direct secret communications with WikiLeaks. His father, Defendant Trump, mentioned WikiLeaks 160 times on the campaign trail and encouraged voters to read the stolen emails on the WikiLeaks site. His frequent exclamation, “I love WikiLeaks!” is more ‘hiding in plain sight’ and bolsters the case against him.
The evidence of the conspiracy with the Russians will become even more clear when you learn of the events of October 7, 2016. That day, The Washington Post released the so-called Access Hollywood tape that threatened to end Trump’s campaign. Within 29 minutes of the release of the video, WikiLeaks—in collaboration with the Trump campaign—began releasing stolen emails from John Podesta, an obvious effort to deflect attention away from the damaging sex story. For the last month of the campaign, those emails were dribbled out to combat every negative story about Defendant Trump. None of this was a coincidence. We will introduce into evidence a December 2016 email from K.T. McFarland, Trump’s incoming deputy national security adviser, admitting that Russia had just “thrown the U.S.A. election” to Trump.
You will learn that during and just after the election, the Trump team upheld its end of the corrupt bargain by making sure that lifting sanctions was a priority for the new administration. This involved 32 contacts between Russians and Trump campaign and transition officials—many of them recorded by the U.S. government—and 20 meetings. That’s about 19 more meetings than any other campaign—Republican or Democratic—has ever held with that hostile power. What did all of those meetings concern? Not vodka and ice hockey.
Of course the Trump team didn’t want anyone to know about the communications. You will hear testimony that Jared Kushner tried to set up a secret backchannel communications system with the Russians, then lied about it; Erik Prince, a military contractor, did set up such a communications link on Trump’s behalf in the Seychelles Islands, then lied about it; and Michael Flynn, the incoming national security adviser, repeatedly assured his Russian friends—before and after the election—that sanctions would soon be lifted, then lied about it.
You have heard me talk a lot about conspiracy. Now what does that word mean legally? The Defendant Trump is charged in this case with conspiracy to violate the federal computer hacking statute known as the Computer Fraud and Abuse Act, and with conspiracy to defraud the government. While the judge will instruct you thoroughly on the law relating to these statutes at the conclusion of the trial, it is sufficient at this point to say that a conspiracy is simply an agreement to violate the law.
To prove this conspiracy, you will hear testimony from many witnesses. Among the most important are: Papadopoulos, Flynn, deputy campaign manager Rick Gates, and Alex van der Zwaan, a Dutch lawyer, who will testify to coordination between the Trump campaign and the Russian government.
Defendant Trump is also charged with obstruction of justice. You will hear voluminous testimony proving that charge from current and former high-level government officials present in the White House, at the Trump National Golf Course in Bedminster, New Jersey and aboard Air Force One when the crime occurred.
Like his tweets and speeches mentioning Clinton emails and WikiLeaks, Trump’s “public evidence” against himself includes his interview with NBC’s Lester Holt, in which he admitted that he fired James Comey as FBI director over “this Russia thing”—that is, to stop the investigation into the criminal conspiracy.
Finally, I want to speak to you as Americans. The fact that Defendant Trump is president of the United States should not deter you from seeking justice in this case. No person—no matter what his position—is above the law. All we ask is that you consider the totality of the evidence without fear, favor or prejudice. When you have gone through the process of reviewing all of the evidence, we are confident that you will find Donald John Trump guilty beyond a reasonable doubt. Thank you.
Jonathan Alter is a best-selling author and a columnist for The Daily Beast. Nick Akerman, a partner at Dorsey and Whitney, is a former Watergate prosecutor.
