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What Mueller Has and What He’s Missing

So far there's little of the former and a lot of the latter. Absent more evidence, skepticism remains a healthy stance.

Some Russians somewhere may have somehow meddled in the 2016 presidential election. But what Special Prosecutor Robert Mueller really has to answer, some 16 months after the voting, is whether Donald Trump knowingly worked with a foreign government to get elected in return for some quid pro quoRussiagate. So where’s the proverbial beef?

On February 22, Mueller handed down a 32-count indictment, following a similar one in October, that charged Paul Manafort and Richard Gates with financial crimes going back eight years or more, all related to work in Ukraine, none related to Russiagate. A day after the indictment, Gates pled guilty to financial conspiracy and lying to the FBI about a meeting five years ago. Manafort’s case is more complex: no trial date has been set, and it will likely take a year or more to conclude once started.

Two weeks ago, Mueller dropped a multi-part indictment against 13 Russian citizens connected with a so-called troll farm. The indictment alleges the group bought Facebook and Twitter ads, planned small rallies, and otherwise “meddled” in the U.S. election. Deputy Attorney General Rod Rosenstein made clear there was no allegation in the indictment that any American, including on the Trump campaign, “was a knowing participant in the alleged unlawful activity.”

Even if some connection to the Kremlin can be shown (it hasn’t been and since Mueller will never take this case to court—his defendants all live in Russia—it’s unlikely it ever will be), this “meddling” has no link to Trump or Russiagate. In fact, the social media campaign started when the U.S. was considering war in the Ukraine years before Trump announced his candidacy, and about half of its modest ad buys took place after the election was over. The troll farm itself was not much of a secret; the New York Times profiled the place in 2015.

Mueller has also charged former Trump national security advisor Michael Flynn with a non-material lie. (The FBI already knew the truth from surveillance: Flynn stepped into a perjury trap set up by Mueller. The likely sentence will be a fine.) Flynn initially pled guilty, though he’s understood to be reconsidering and may withdraw that plea. Flynn’s lie and the other accusations against him center on his work as an unregistered foreign agent for Turkey.

Flynn also admitted that he lied to the FBI about a conversation with the Russian ambassador, which was surveilled by the NSA and later leaked from the Obama White House. Critics claim the conversation is a violation of the Logan Act, a law that has never been successfully prosecuted. Soon after the FBI interview in which Flynn falsely denied the conversation, Sally Yates, an Obama-era holdover serving as acting attorney general, warned the Trump White House that Russia could blackmail Flynn over having lied. Ironically, some say Mueller is essentially blackmailing Flynn using that same lie, holding out a lighter sentence if Flynn tells all.

Another of the Mueller team’s accomplishments is the guilty plea of George Papadopoulos, who White House Press Secretary Sarah Sanders described as “a volunteer member of an advisory council that literally met one time.” Papadopoulos pled guilty to lying to the FBI about a meeting with Maltese professor Joseph Mifsud, another perjury trap of Mueller’s based on intelligence data. The professor said the Russians had “dirt” on Hillary Clinton in “thousands of emails.” But no dirt and no emails were ever handed over.

So here’s what Mueller has: evidence of unrelated-to-Trump financial crimes by Paul Manafort and others, based mostly from FISA surveillance on Manafort dating back to 2014. The FBI’s earlier investigation was dropped for lack of evidence, and it appears Mueller revived it now in part so the information could be repurposed to press Manafort to testify. The role pervasive surveillance has played in setting perjury traps to manufacture indictments to pressure people to testify against others has been grossly underreported. We’ll see more of it, unfortunately, a new tool of justice in a surveillance state.

Flynn and Papadopoulos are currently charged with relatively minor offenses whose connections to Russiagate are tenuous. Flynn’s contact with the Russian ambassador can be seen as a lot of uncomplimentary things, but it does not appear to have been a crime. With Papadopoulos there may be a conspiracy charge in there with some shady lawyering, but little more. Further offstage, Carter Page, a key actor in the Steele dossier and the subject of FISA warrants, has not been charged with anything.

Here’s what Mueller is missing. The full force of the U.S. intelligence community has been looking for evidence of Russian government (not just “some Russians”) interference in the election for 18 months (the recently released Schiff memo reveals five Trump campaign officials were under investigation as of September 2016, including Flynn), with the aim of finding proof of Trump’s collusion with Russia in the same caper for about a year. It is reasonable to conclude they do not have definitive intelligence, no tape of a Team Trump official cutting a deal with a Russian spy. The same goes for the Steele dossier and its salacious accusations. If a tape existed or if there was proof the dossier was true, we’d watching impeachment hearings.

What’s left is the battle cry of Trump’s opponents since Election Day: “Just you wait.” They exhibit a scary, gleeful certainty that Trump worked with the Russians, because how else could he have won?

But so far the booked charges against Flynn and Papadopoulos and the guilty pleas of others point towards relatively minor sentences to bargain over—assuming they have game-changing information to share in the first place. These are process crimes, not ones of turpitude. Manafort says he’ll go to court and defend himself, lips sealed.

It’s not enough. Mueller is charged with nothing less than proving the president knowingly worked with a foreign government, receiving help in the election in return for some quid pro quo, an act that can be demonstrated so clearly to the American people as to overturn an election probably a full two years after it was decided.

Given the stakes—a Kremlin-controlled man in the Oval Office—you’d think every person in government would be on this 24/7 to save the nation, not a relatively small staff of prosecutors leisurely filing indictments that so far have little to do with their core charge in the hope that someone will join their felony hunt and testify to crimes that may not have been committed.

A limping-to-the-finish line conclusion to Mueller’s work just ahead of the midterms alleging Trump technically obstructed justice, or a “conspiracy to commit something” charge without a finding of an underlying crime, will risk tearing the nation apart. Mueller holds a lot in his hands, and he needs soon to produce the conclusive report to Congress he was charged to write. Until then, absent evidence, skepticism remains a healthy stance.

Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan. He Tweets @WeMeantWell.