The Ways In Which The Mueller Investigation Was Restricted

It has been nearly three weeks since Attorney General William Barr released his redacted version of the Mueller report to the public. In that time, Barr’s initial lies and mischaracterizations about the content and results of that report have been largely debunked and now even White House lawyers privately admit that the report was designed to provide a road map for the Congress should it begin impeachment procedures. In addition, a close reading of the report and Barr’s own testimony give some indication into how the Mueller investigation may have been restricted. The degree to which that may have been a result of Mueller’s own interpretations or on orders from Rosenstein and then Barr surely varies in differing situations and remains to be fully explained.

The restrictions cover four general areas. The first is Mueller’s interpretation of Rosenstein’s instruction to investigate Trump-Russia “coordination”. The second is a very limited reading of existing campaign finance law. Third is the report’s lack of a volume covering the counterintelligence investigation. And, last is the potential attempts by Rosenstein and Barr to end the investigation prematurely.

Let’s start at the very beginning. Rod Rosenstein specifically tasked Robert Mueller with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump” and any matters that arose during the course of that investigation. Rosenstein expanded Mueller’s investigation with additional letters allowing Mueller to investigate any “collusion” by Carter Page, Paul Manafort and George Papadopoulos, later adding Michael Cohen, Richard Gates, and Roger Stone, as well as Manafort’s dealing with Ukraine. Rosenstein’s directives contained an unusual element for a criminal investigation. As we all have learned over the last two years, “coordination”, like “collusion”, has no legal meaning. Mueller, acting as a prosecutor, interpreted the task of making any determination about coordination or collusion as being able to prove a criminal conspiracy. As Mueller writes, “We understood coordination to require an agreement-tacit or express- between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interests”. In other words, Mueller treated his investigation of “coordination” and “collusion” as an attempt to prove conspiracy.

Coordination and collusion, as non-legal terms, are in the eye of the beholder. But Mueller did find that “Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities”. As noted above, the use of “coordinated” in this context is merely, and unfortunately, a Mueller synonym for criminal conspiracy. In fact, the facts behind this summary indicate what many laymen would clearly consider collusion or coordination as colloquially used.

As a lawyer tasking a DOJ-approved investigation, Rosenstein’s use of the word “coordinated” in his tasking to Mueller is odd in that he clearly chose a term that had no legal meaning. That had the knock-on effect of allowing Trump’s defenders to broaden its meaning and distance it even further from legal findings by constantly referring to “collusion”. Thus, when Mueller reported plenty of evidence of a conspiracy but not enough to make the charge of criminal conspiracy stick, Barr, Rosenstein, Trump’s allies, and Trump could all crow “no collusion”.

Mueller also appears to have restricted his view of what constitutes a criminal campaign violation. As Bob Bauer points out, as opposed to his detailed discussion about the law regarding conspiracy and the constitutionality of indicting a sitting president, Mueller “treats the campaign finance issues almost cursorily-one could say, superficially- even to the point of failing to identify and address all the applicable law. The results are an unconvincing decision to decline any prosecutions, and a major question about the enforcement of this law in 2020 and beyond”. Mueller totally ignores the ban on foreign spending in all US elections and any American’s support of such activity. Bauer also notes, “the Report considers a range of authorities in describing the campaign finance laws, including the Federal Election Commission’s regulations and advisory opinions. However, this section of the analysis remarkably does not include a regulation that squarely prohibits campaigns from ‘substantially assisting’ foreign nationals in any effort to expend funds to influence American elections…It’s not clear from the Report why it omits this rule, but the omission has the effect of significantly narrowing the analysis of the potential legal violation”.

By interpreting possible campaign finance laws so narrowly, Mueller effectively restricts his investigation of possible violations to the Trump Tower meeting and effectively ignores the context in which the Trump campaign signaled its desire to accept help from the Russians on a myriad of occasions. Having limited itself to the Trump Tower meeting, the investigation reached a questionable conclusion, declining to prosecute any individuals involved in the Trump Tower meeting because it “did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted ‘willfully,’ i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation”.

Both of these rationales for refusing to prosecute are somewhat refuted by the law and the facts. Mueller fully admits that what was being offered in the meeting was a “thing of value” as defined by the statute but then relies of the fact that “no judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law”, while neglecting to note that no judicial decision has been made otherwise but also noting the statue has been broadly interpreted in actual prior decisions. Mueller then continues that “Such an interpretation could have implications beyond the foreign-source ban, see 52 U.S.C. § 30116(a) (imposing monetary limits on campaign contributions), and raise First Amendment questions. Those questions could be especially difficult where the information consisted simply of the recounting of historically accurate facts”. But no such interpretation has been made and any foreign contribution is not covered by First Amendment issues, making the raising of that issue more of a red herring than a legal analysis. In addition, the fact that opposition research, which is what was essentially being offered, is actually true makes it even a more valuable contribution. Lastly, Mueller points to the “the $2,000 threshold for a criminal violation, as well as the $25,000 threshold for felony punishment” and uses those thresholds to argue it would be difficult to prove that the information offered exceeded those levels. But as Bauer again points out, “the foreign national spending to support this offer, which the campaign was well aware it was accepting, exceeded $2000 just in air travel and hotel expenses incurred by the Russian delegation. The campaign finance violation does not consist entirely of spending for the development of the ‘dirt’ itself. The costs of transmission also count toward the statutory threshold of prosecution”.

Furthermore, most of the report’s discussion about whether the Trump campaign officials acted “willfully” when they took the meeting is heavily redacted. But the report does indicate that Gates reported that “Manafort warned the group that the meeting likely would not yield vital information and they should be careful”, indicating at least some concern about at least the impropriety of the meeting if not its potential illegality. In addition, Don McGahn was intentionally not given notice of the meeting because he “would never have allowed the meeting to occur”. Finally, the lies told about the meeting after the election indicate a potential belief in the Trump campaign that there was legal exposure. In spite of all this, Mueller concludes that “Trump Jr. could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law. Given his less direct involvement in arranging the June 9 meeting, Kushner could likely mount a similar defense. And, while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues”.

Please read Bob Bauer’s entire piece on how Mueller’s treatment of potential campaign finance violations was deficient. I have used and summarized his conclusions in the above campaign finance discussion, but he provides far more detail in a somewhat damning indictment of Mueller’s treatment of the issue. Most importantly, Bauer concludes by pointing out that Mueller’s absolution regarding potential campaign finance violations has led to a stated belief by some Republicans that soliciting and accepting help from a foreign government is now legal and acceptable. The Trump team is already acting on that assumption by trying to enlist the Ukrainian government in an attack on Joe Biden.

Another missing element in the Mueller report was a section on the counterintelligence portion of his investigation. It was always expected that he would provide one, despite it not being eligible for public consumption, but Mueller clearly focused on a criminal probe alone. What Mueller does make clear is that the counterintelligence investigation continues outside his investigation and that the report only makes use of such information in order to determine prosecution or declination decisions. According to Mueller, “From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI…For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices”. In addition, Mueller also notes that “The investigation did not always yield admissible information or testimony”, presumably some of which was protected by national security interests.

That decision to focus on purely criminal behavior means that Mueller never really explored whether Trump’s attempt to limit and obstruct the investigation may have been designed as a favor to Russia as opposed to fear of his own criminal exposure.

But counterintelligence information hovers over critical incidents in the report as Mueller obliquely admits. As David Frum cites Mueller, regarding the conspiracy charge, “the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns”. The reason Mueller did not take on such a thorough investigation is almost assuredly because that investigation would be a counterintelligence one that he had already deemed outside his purview.

Marcy Wheeler at emtpywheel also notes that Mueller is rather expansive on all the attempts to get Trump and Putin to meet during the campaign but “when Trump actually started meeting with top Russian officials — and Putin specifically — the report gets quiet”. Wheeler also notes how many of Trump’s actions with regard to Russia and the Russian-Trump investigation are correlated with meetings between Trump campaign and administration officials and how Mueller ignored these correlations.

These include Trump’s increasingly frantic demands to fire Comey after a call with Putin and before the meeting with Kislyak and Lavrov, which was scheduled during that call with Putin. Trump’s private meeting with Putin at the G-20 immediately before issuing his letter deceptively claiming that the Trump Tower meeting was about adoptions when it was clearly about getting dirt on Hillary and then repeating that lie by claiming it was part of his G-20 discussions with Putin is another example. Mueller’s knowledge of counterintelligence information is also readily apparent when Mueller describes Flynn’s discussions with Kislyak about having the Russians hold off on retaliatory sanctions at the end of 2016 and whether Trump was aware of or instructed Flynn’s conversations. As Wheeler says, “both Flynn and KT McFarland seem to have protected President Trump’s plausible deniability [about directing Flynn] even after both got caught lying about these events. But it also appears that Mueller is more certain about the answer than he lets on in the public report”, presumably because of his access to counterintelligence information.

Wheeler also adds “Nor does the report discuss some of the other bizarre Trump interactions with Putin, most of all the Helsinki meeting that took place in the wake of the release of the GRU indictment, leading Trump to yet again very publicly deny Russia’s role in the attack, that time in the presence of Putin himself. Now, there may be very good constitutional reasons why the analysis of Trump’s weird relationship with Putin as President is not part of this report. The President is empowered with fairly unlimited authority to conduct foreign policy and to declassify information, which would cover these instances. But it must be noted that the report doesn’t answer what a lot of people think it does: whether Trump has been compromised by Russia, leading him to pursue policies damaging to US interests”. As with Bauer above, I highly recommend reading Wheeler’s posts about how many of the most important questions remain unanswered because Mueller treated the answers as part of the counterintelligence investigation.

The lack of any counterintelligence report is also particular disturbing in light of Adam Schiff’s claim that the House Intelligence Committee has not been briefed on the counterintelligence investigation since Comey was fired. According to Schiff, “We were getting periodic counterintelligence briefings up until the point where James Comey was fired. At that point, the most significant counterintelligence investigation in recent history went into a black hole and the [Justice] Department and the intelligence community stopped fulfilling their statutory obligation to keep us fully informed of any significant counterintelligence activity. So they’ve been dark now for a year and a half. And that, I think, violates the statute”.

At this point, with Mueller unwilling or restricted from reporting on the counterintelligence investigation and Congress, or at least the House Intelligence Committee, or its principals who are members of the Gang of Eight, not being appropriately briefed on it, it appears that the investigation is continuing, if even that, in a black hole.

Finally, there is also some evidence that both Rosenstein and Barr restricted Mueller’s investigation in certain areas and pressured him to end the probe prematurely. In that regard, Wheeler points out the bizarre haste to reach a plea agreement with Manafort in September, 2018, around the same time Rosenstein was under attack from the President and his allies over his reported comments about wearing a wire to record the President and the possibilities of invoking the 25th Amendment. Wheeler notes “They [Mueller’s team] didn’t do all the vetting they would normally do before entering into a plea deal; There was a big push to avoid the September 2018 trial; They entered a plea deal when they weren’t sure about Manafort’s reliability in part to get intelligence, not prosecutorial information; Another factor, which is redacted, which by context is likely to be Trump’s floating of a pardon”. In fact, Mueller knew Manafort was lying about numerous critical details in his proffer, but remarkably decided to go ahead anyways. Wheeler continues, “So Mueller knew Manafort was lying, and yet still gave him a plea deal, which had the effect of averting a trial that would have been a key focus of press attention during the midterm elections”. Why Mueller would choose to make a plea deal with a defendant whom he knew was lying and whom his team had not thoroughly vetted is an important open question. But that plea deal kept details about Manafort’s activities hidden from the public before the election and gave Trump cover to delay answering Mueller’s written questions. The other open question is whether Rosenstein was the one pressuring Mueller’s team to prematurely enter the plea agreement with Manafort.

Rachel Maddow also speculates that Barr may have also forced Mueller to prematurely end his investigation. In his Senate testimony, Barr declared that he believed “if he [Mueller] felt that if he shouldn’t go down the path of making a traditional prosecutive decision, then he shouldn’t have investigated”. In other words, if Mueller wasn’t going to indict the President, then he should wrap up his investigation. Mueller, in his report, makes clear he was following DOJ guidelines by not indicting a sitting president, leaving him in an untenable situation between Barr’s view and actual DOJ policy.

All of this creates an interesting timeline. In June, 2018, Barr sends his infamous 19 page memo outlining his theory that the President can not be guilty of obstruction of justice and Mueller’s investigation in that area is fatally flawed. In late August and early September, 2018, Mueller, perhaps under pressure from an embattled Rosenstein, prematurely enters into what turns out to be a fatally flawed plea agreement with Manafort. Barr is nominated to become Attorney General in early December, 2019, and less than a month later Rosenstein announces the Mueller investigation will wrap up in February or March, at which time he will leave the DOJ. On March 5th, Barr meets Mueller for the first time as Attorney General and three weeks later the Mueller investigation ends with the delivery of his report to Barr. While all that may seem like coincidence, there is a plausible case to be made that efforts have been underway to push Mueller to end his investigation by both Rosenstein and Barr within weeks of the White House receiving Barr’s memo about obstruction of justice.

Finally, Mueller was restricted by his lifetime tenure in the “chickenshit” club, a club described by James Comey where US Attorneys only bring cases they are absolutely sure they could win. There are multiple instances throughout the report where Mueller finds pretty clear evidence of potentially criminal activity but declines to prosecute because there would be a possibility of a strong defense. An example of that is the campaign finance case against Don Jr., Manafort, and Kushner regarding the Trump Tower meeting. Another example is Manafort’s sharing internal polling data with Kilimnik, with special focus on the election’s swing states. While the fact that Manafort was sharing some of the most critical campaign information with a man who he reportedly knew was a Russian agent and who expected would pass the polling data on to a Russian oligarch, along with the resulting fact that the Russian disinformation campaign then targeted those swing states would at least seem a compelling circumstantial case for conspiracy.

But Mueller declines to go there, writing, “The Office could not reliably determine Manafort’s purpose in sharing internal polling data with Kilimnik during the campaign period. Manafort [redacted] did not see a downside to sharing campaign information, and told Gates that his role in the Campaign would be “good for business” and potentially a way to be made whole for work he previously completed in the Ukraine. As to Deripaska, Manafort claimed that by sharing campaign information with him, Deripaska might see value in their relationship and resolve a ‘disagreement’-a reference to one or more outstanding lawsuits. Because of questions about Manafort’ s credibility and our limited ability to gather evidence on what happened to the polling data after it was sent to Kilimnik, the Office could not assess what Kilimnik (or others he may have given it to) did with it. The Office did not identify evidence of a connection between Manafort’ s sharing polling data and Russia’s interference in the election, which had already been reported by U.S. media outlets at the time of the August 2 meeting”. Mueller never seriously addresses why Manafort would believe passing the polling data would make him whole with Deripaska. The obvious and only conclusion is that Manafort believed he was passing something of pretty substantial value to Deripaska, so valuable it would eliminate his pretty substantial debt to the oligarch. And, in order for it to have value for Deripaska, it must have been something quite useful. Mueller just leaves that hanging.

All these restrictions result in a report and an investigation that is less complete than it could be, to the detriment of the American people and Congress. While hardly the most critical question at this point, it would be helpful if Mueller could explain whether some of these restrictions were self-imposed or driven by directives from Rosenstein and Barr. Hopefully he can provide some clarity if and when he testifies.

Originally published at https://thesoundings.com on May 7, 2019.

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