Amicus with Dahlia Lithwick | Episode Summary

Episode Title: Mapping the Mueller Investigation
Release Date: December 8, 2018
Podcast Host: Dahlia Lithwick (Slate)
Featured Guests:

• Mimi Rocah, Distinguished Fellow in Criminal Justice at Pace Law School, former Assistant U.S. Attorney, MSNBC contributor
• (Later in the episode) Riaz Kanji, attorney representing the Creek Nation

Main Theme and Purpose

This episode of Amicus examines two complex legal stories making national headlines in late 2018:

1. The Robert Mueller Investigation: Dahlia Lithwick interviews former federal prosecutor Mimi Rocah to "map" the sprawling, multi-pronged Special Counsel investigation into Russian interference in the 2016 election, alleged conspiracy ("collusion"), obstruction of justice, and related financial and foreign entanglements of Trump associates. The conversation focuses on clarifying legal definitions, evaluating where the investigation appears headed, and exploring what might ultimately "matter" to the public and to Congress.

2. SCOTUS and Native American Sovereignty: The second half of the episode shifts to a Supreme Court case (Carpenter v. Murphy) involving tribal sovereignty and federal/state jurisdiction on Native American reservations, particularly in Oklahoma. The host speaks with Riaz Kanji for legal and historical context.

Note: This summary focuses primarily on the Mueller investigation segment, as detailed legal/historical discussion dominates the first half of the episode.

Mapping the Mueller Investigation

I. Setting the Context (Starting ~02:00)

• Dahlia Lithwick frames the Mueller probe as complex and fast-moving: "Every single day we get some new revelation...the force of these revelations can be sometimes lost to us because there’s just so very much to keep track of." (02:00)
• Purpose: Step back for a ‘meta’ read of the investigation: what’s happened, what’s coming, and what’s important.
• Introduces guest Mimi Rocah, who brings experience prosecuting organized crime.

II. “Collusion” vs. Conspiracy (03:00–10:00)

Key Points:

• Legal Definition: There is no crime called "collusion" under federal law. The relevant legal concept is "conspiracy."
• 18 USC 371: Two main conspiracy statutes: (1) conspiracy “to commit a crime,” and (2) conspiracy “to defraud the United States.”

Mimi Rocah:
“It’s not collusion. It’s really conspiracy…there’s no charge of collusion, but there are certainly charges of conspiracy.” (03:15)

• Example: Conspiracy can be broad. One can be criminally liable as part of a conspiracy even without direct contact with all involved parties.
• Relevance to Mueller Probe: Mueller’s team is using the “conspiracy to defraud the U.S.” prong, upheld in prior indictments against Russians.

“You can actually join a conspiracy with someone you’ve never even met...It’s to capture whether you’re working towards a common scheme.” (06:28, Rocah)

III. Presidential Misunderstandings and the “Witch Hunt” Defense (06:05–09:30)

• Trump’s Claims: Asserts “no collusion” by referencing lack of direct communication with Russians, misunderstanding conspiracy law.
• Public Misconception: Many wrongly think active collaboration is required for conspiracy. Actual standard is lower—aiding, abetting, or knowingly participating suffices.
• Political Rhetoric: The breadth of conspiracy law allows Trump and defenders to claim overreach or “witch hunt,” but as Mimi points out, this is a widely used legal concept.

“Trump has no idea what the conspiracy law means and how it works…He may actually believe as long as he didn’t do that [direct contact], he’s fine…That’s not how conspiracy law works.”
(06:06, Rocah)

IV. Obstruction of Justice (10:16–13:37)

Key Points:

• Obstruction as a Crime: Firing Comey, pressuring Session, public statements aimed at witnesses (such as “stay strong” tweets) may constitute obstruction.
• Uniqueness Due to Presidency: Charging a sitting president is legally and politically complex, as executive powers are involved.
• Strategic Considerations: Prosecutors prefer to have a provable underlying crime; obstruction-only cases are tougher.

“If Mueller only ends up coming out with facts about obstruction with respect to Trump, I think that’s going to fall with a thud…because of who Trump is and because of the whole history here.” (11:32, Rocah)

“Firing Comey was a pretty bold first move…but I would say tweeting and giving statements to potential cooperating witnesses that they should basically stay strong is really, really over the line.” (13:40, Rocah)

V. “Mapping” the Investigation: Buckets of Criminality (14:50–22:16)

Key Points:

• Multiple “Buckets”:
  • Election interference (involving Stone, Corsi, Don Jr. et al.)
  • Financial and foreign entanglements (e.g., Trump Tower Moscow, Michael Cohen’s lies)
  • Other “mysterious” investigations (Flynn, Turkey, etc.)
• Importance of Michael Cohen’s Plea: Trump Tower Moscow negotiations extended into June 2016, overlapping with major campaign events—raises quid pro quo/bribery questions (e.g., sanctions relief for business opportunity).
• Business and Political Interests Intertwined: The “dirty business” and Russian interference theories may be converging.

“The idea that Trump was pursuing this Trump Tower…What does Russia want? Russia wants relief from sanctions…Both parties who want things from each other…Are those two things connected? Was it a quid pro quo? That is really the question Mueller is trying to answer…” (17:15, Rocah)

VI. Counterintelligence and Compromise (22:16–26:00)

Key Points:

• Origin as Counterintelligence Probe: Initial interest: Does Russia “have” something on Trump that affects his conduct?
• Compromise Need Not Be Salacious: Leverage may stem simply from knowledge of secret financial ties or lies, not necessarily a “pee tape.”
• Michael Cohen Revelations Central: Lying about business deals gives Russia leverage.

“Every time [Trump] said that [he had no business in Russia] someone in Russia…knew he was lying and could exert leverage over him…” (23:52, Rocah)

• The “So What” Obstacle: Public may be inured to lying, but the risk is that concealed business deals—especially as they intersect with national security—are uniquely compromising.

VII. “Other Investigations” Revealed by Flynn (27:36–29:11)

• Michael Flynn’s Cooperation: 19 meetings, references to “other investigations.”
  • Likely Buckets:
    • Non-Russia related (business with Turkey, possibly Saudi Arabia)
    • Russia/interference
    • Obstruction

VIII. Team Dynamics: Cooperators vs. Holdouts (29:11–33:42)

Key Points:

• Two Factions:
  • “Manafort/Corsi Team”: Defiant, gambling on pardons, slow-walking or undermining cooperations.
  • “Flynn/Cohen Team”: Cooperating fully, seeking leniency.
• Psychology of Cooperation: Often organized crime witnesses, personality types—need for belonging and protection can fuel cooperation.

“Cohen seemed like the quintessential person who would become a good cooperator…wants to belong to something and be part of that crowd…those kinds of people tend to migrate to… the FBI…” (30:18, Rocah)

IX. What’s Next? Signs and Pivot Points (33:42–35:16)

Key Points:

• Upcoming Charges: Anticipates criminal charges for individuals closer to Trump (Don Jr., Kushner, Stone, Corsi).
• Potential for Revelations: New charges may illuminate Trump’s direct involvement or more detailed Russia interactions, even if Trump is not directly charged.
• Incremental Disclosures: Each new legal filing from Mueller brings more information.

X. Will It Matter? (35:18–37:48)

• Existential Question: Even if evidence is “glorious” and overwhelming, will the public or Congress care?
• Mimi’s Fear and Hope: Trump as “the Teflon Don”—concern the findings will be met with shrugs, yet belief that the truth, especially if it shows someone “selling the office of the presidency,” can still shift critical opinions (notably in Congress).

“My fear is that, yes, these things come out and people shrug…There’s a reason…Trump is acting more and more desperate. I think he feels more afraid…” (35:53, Rocah)

Notable Quotes & Memorable Moments

• "You can actually join a conspiracy with someone you've never even met...That's not sort of the point of the law. Right. It's to capture whether you're working towards a common scheme." (06:28, Rocah)
• "Firing Comey was a pretty bold first move…But I would say tweeting and giving statements to potential cooperating witnesses that they should basically stay strong is really, really over the line." (13:40, Rocah)
• "For him to say, you know, it's a witch hunt because I didn't know what was going on, I think is really not going to be borne out by the facts here." (09:57, Rocah)
• "Are those two things connected? Was it a quid pro quo?… That is really the question that I think Mueller is trying to answer." (17:55, Rocah)
• “He has, as you say, always acted like someone who Putin has leverage over. And now we know a little bit of that through Cohen. But I think there’s probably more to the story, and it’s not a pea tape.” (26:23, Rocah)
• "Cohen seemed like the quintessential person who would become a good cooperator...And those kinds of people tend to then migrate to, you know, the FBI, and that sort of becomes their new family." (30:17, Rocah)
• "My fear is that, yes, these things come out and people shrug. But...there’s a reason… Trump is acting more and more desperate. I think he feels more afraid." (35:53, Rocah)

Timestamps for Key Segments

| Segment | Timestamps | |-------------------------------------|-----------------| | Opening, preview, guest intro | 00:47–02:41 | | Collusion vs. conspiracy | 03:00–10:00 | | Obstruction of justice | 10:16–13:37 | | Mapping the “buckets” of the probe | 14:50–22:16 | | Counterintelligence & compromise | 22:16–26:00 | | Flynn & “other” investigations | 27:36–29:11 | | Teams (cooperators vs. holdouts) | 29:11–33:42 | | What’s next, will it matter? | 33:42–37:48 |

Additional Segment: “Carpenter v. Murphy” (from ~39:32)

Brief Outline:

• Examines high-stakes Supreme Court case concerning whether eastern Oklahoma is still legally Indian reservation land.
• Attorney Riaz Kanji explains the Creek Nation’s history, U.S. government’s broken treaties, and why centuries-old legal designations still have relevance.
• Arguments over practical consequences, tribal sovereignty, and the federal government’s responsibility.

Notable Case Themes:

• Treaty rights, allotment history, Indian sovereignty, and legal fictions versus lived historical injustice.
• Justices’ practical concerns about chaos, rights retroactivity, implications for criminal and civil jurisdiction.

Style and Tone

• Dahlia Lithwick is conversational, sharp, and wry, yet grounded in legal detail.
• Mimi Rocah is clear, methodical, and draws on extensive prosecutorial experience to “demystify” legal complexities.
• The episode’s tone is urgent but analytical—a lawyer-to-lawyer attempt to sort the "forest from the trees" for a public audience that may be overwhelmed by daily news churn.

Conclusion and Utility

This episode offers a uniquely structured, granular walkthrough of both the legal concepts (conspiracy, obstruction, compromise) at the heart of the Mueller investigation and a roadmap for understanding its multiple “buckets” or prongs. Listeners are invited to see how business interests, legal jeopardy, and national security concerns may converge. The discussion anticipates and attempts to answer the public's likely questions: "Does it matter?" and "Will anyone care?", providing both pessimism (public fatigue) and hope (solid evidence changing minds in Congress).

For listeners who missed the episode:
This summary will equip you to follow both the legal scaffolding of the Mueller probe and the human, political, and constitutional stakes as they stood in late 2018.

(Carpenter v. Murphy discussion follows at around 39:32; for a similarly structured summary, see above.)