Renato Mariotti is a former federal prosecutor.

Although special counsel Robert Mueller’s investigation appears to be drawing closer to proving that associates of President Donald Trump “colluded” with foreigners to influence the 2016 election, extraordinary steps by Trump’s allies to undermine Mueller’s investigation appear to have slowed down the prosecutor.

But it won’t be for long. In fact, the stalling tactics might end up costing the defendants more time in prison.


On Tuesday, right-wing pundit Jerome Corsi released a draft Statement of the Offense and plea agreement that he claims was sent to him by Mueller. The statement describes several emails between Corsi and his friend Roger Stone, a Trump associate, regarding hacked Democratic emails distributed by WikiLeaks. The emails, which investigators say Corsi deleted from his computer, prove that Corsi lied when he told investigators in September that he had never acted as an intermediary between Stone and WikiLeaks. There appears to be no rationale for Corsi’s actions other than to draw attention to himself, which any responsible lawyer would advise him not to do at this juncture.

Stone allegedly told Corsi to “get to [WikiLeaks founder Julian] Assange” and “get the pending WikiLeaks emails” relating to the “Foundation” on July 25, 2016, months before they were released. Corsi allegedly forwarded that email to an associate he claims is Ted Malloch, a Trump surrogate with a fondness for InfoWars conspiracies.

By August 2, Corsi assured Stone that Assange “plans 2 more dumps” that would be “very damaging” and suggested starting to cast Hillary Clinton as “old, memory bad, has stroke” because that would be “much of next dump’s focus, setting stage for Foundation debacle.”

These emails were revealed not long after Stone released texts from his one-time associate Randy Credico, the left-wing radio host, indicating advance knowledge of the release of hacked emails. Credico allegedly texted “Hillary’s campaign will die this week" on October 1, 2016 and “Julian Assange has kryptonite on Hillary“ on August 27, 2016.

It was all just a good guess, Credico, Stone and Corsi have said. But that’s getting harder to swallow the more that is revealed about what Mueller’s team knows. This evidence tends to prove that Stone, Corsi and others knew about the release of stolen emails before they went public, and that they knew at least some specifics about the stolen emails in advance.

For obvious reasons, criminals rarely reveal their plans to people who aren’t in on the scheme—they don’t want to be caught. But, as a legal matter, knowing in advance about hacking is not itself sufficient to charge someone with a crime unless the person lied about that knowledge to the FBI, to Congress, or under oath.

For that reason, it appears Mueller is pursuing charges against Stone and Corsi for lying—not for their involvement in hacking. But proof that the men knew in advance about the distribution of hacked emails is a step forward for Mueller. After all, knowing about a crime before it occurs or while it is occurring is an important part of what a prosecutor needs to prove someone is responsible for a crime. You can't join a conspiracy to commit a crime if you don’t know about the crime being committed.

Mueller has appeared to be closing in on Stone for some time, and many speculated that Mueller would unveil indictments after the November 6 election. Instead, Mueller’s first bombshell after the election was a filing on Monday that former Trump campaign chairman Paul Manafort lied to the FBI and Mueller’s office “on a variety of subject matters.”

That was shocking news because Manafort signed a cooperation agreement in which he agreed to “fully, truthfully, completely, and forthrightly” cooperate with Mueller. Typically, when defendants agree to cooperate with prosecutors, they do whatever they can to stay on the government’s team so that they can receive benefits pursuant to their deal. It is extraordinarily rare for flippers to deceive prosecutors so significantly that prosecutors decide to nullify the deal, as Mueller did.

On its face, Manafort’s move is a very bad idea. Instead of receiving a reduction in his sentence due to cooperation, the judge will take into account new crimes committed by Manafort after cooperating, because lying to the FBI and Mueller are federal crimes. Manafort should expect to receive a very harsh sentence.

But Tuesday’s news that Manafort’s lawyer repeatedly briefed Trump’s lawyers about Manafort’s discussions with Mueller while Manafort was ostensibly cooperating with Mueller puts Manafort’s decision in a new light. Manafort’s decision to provide information to Trump’s team while he was supposed to be aiding Mueller was highly questionable, and the actions of Manafort’s lawyer and Trump’s lawyers were unethical. (It can’t help Manafort’s case that he is alleged to have met with WikiLeaks founder Julian Assange three times, including in spring 2016, around the time he was joining the Trump campaign and only months before the emails were released. Manafort denies the claim, but if true, it would be difficult for Manafort to come up with a legitimate reason to meet with Assange during that period.)

Prior to Manafort’s decision to “flip” and cooperate with Mueller, he entered into a joint defense agreement with Trump, which is a common tool used by subjects of federal criminal investigations to ensure that their attorneys can exchange information while maintaining attorney-client privilege.

A common provision of those agreements, whether they’re written or not, is that if one defendant subsequently agrees to cooperate with the government, he is required to notify everyone else who is part of the agreement. Once someone flips, as Manafort did, his interests are adverse to those of everyone else under investigation because the prosecutors will require him to cooperate against everyone else. For that reason, communications between Manafort and other subjects of Mueller’s investigation aren’t privileged.

In this case, after Manafort flipped, Mueller’s team rightfully believed that their conversations with him wouldn’t be shared with other people under investigation. Manafort’s decision to do so was highly deceptive and undermined Mueller’s investigation. He knew that Trump’s team likely had joint defense agreements with other people Mueller is investigating—Corsi claims he has one—and that Trump could share information with them.

Manafort appears to be motivated to take great risks, and the likely motivator is a federal pardon from Trump, which would undo his federal convictions and result from his release from prison. Although Manafort would still face state criminal liability for tax fraud and other crimes, removing his federal liability would be a big win.

I have participated in many investigations, as a federal prosecutor and now as a defense attorney, and I have never heard of a supposed cooperator deceiving prosecutors and deliberately aiding other people under investigation. For attorneys to aid in this high-risk endeavor suggests that they think they can get away with it.

So far, it appears they’re right. I concluded in January that Mueller would find that Trump obstructed justice, and since then Trump and his allies have engaged in increasingly aggressive behavior meant to undermine or obstruct the Mueller investigation. It has had some impact. Manafort is no longer cooperating, and Corsi has backed out of his plea deal with Mueller.

But Mueller will have an opportunity to respond. Mueller will “file a detailed sentencing submission” that “sets forth the nature of the defendant's crimes and lies, including those after signing the plea agreement,” so the judge can consider them at sentencing. This sentencing submission could also detail the efforts of Manafort’s attorney to provide inside information about Mueller’s conversations with Manafort to the Trump team, which would reveal those activities to the public in detail.

Mueller can also proceed with charges against Corsi, and if he has enough evidence, Stone. Convictions of Corsi and Stone could persuade them to flip and tell Mueller what they know, which could help Mueller make charges against others or could spur Trump and his allies to take even more aggressive action to undermine Mueller’s investigation.

Trump’s obstruction of justice is so brazen that he openly criticized his now-former attorney general for failing to quash criminal investigations of his allies. But his obstruction is so public and widespread it no longer surprises anyone. The votes of 67 senators are required to remove a president from office, and at this time it is hard to imagine 20 Republican senators voting to convict and remove Trump for obstructing justice.

Mueller appears to be getting closer to something more like what the public calls “collusion,” which might be able to soften Trump’s solid core of support. On Tuesday, after the Stone and Corsi emails were released, Trump’s attorney could say only that Trump “does not recall” speaking with Stone or Corsi about WikiLeaks, suggesting that Trump could not flatly deny the conversations.

Assuming Mueller is permitted to continue his investigation, it may be only a matter of time before he overcomes these attempts to undermine the investigation and unveils charges that bring his work to an end.

