The Mueller Report: The Special Counsel’s Charging Decisions

Continuing the republication (with commentary) of the report by Special Counsel Robert Mueller, here is the section explaining how the team reached its decisions to charge — or not charge — individuals with specific crimes. Following that is a brief description of the investigation. Incidentally, we have not even gotten to the detailed sections of the report.

In the news today was a report that Mueller had sent a letter in late March to Attorney General William Barr, saying that Barr’s four-page summary of the special counsel’s report failed to capture the “context, nature, and substance” of the investigation. This is a fancy way of saying Barr lied about what the report says. For Mueller to admonish the attorney general in such a way is remarkable in itself, and suggests that Mueller is not pleased with the executive branch’s reaction to his team’s report.

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THE SPECIAL COUNSEL’S CHARGING DECISIONS

In reaching the charging decisions described in Volume 1 of the report, the Office determined whether the conduct it found amounted to a violation of federal criminal law chargeable under the Principles of Federal Prosecution. See Justice Manual § 9-27.000 et seq. (2018). The standard set forth in the Justice Manual is whether the conduct constitutes a crime; if so, whether admissible evidence would probably be sufficient to obtain and sustain a conviction; and whether prosecution would serve a substantial federal interest that could not be adequately served by prosecution elsewhere or through non-criminal alternatives. See Justice Manual § 9-27.220.

[EDITOR: I have highlighted this sentence, because it explains how and why some individuals have been charged and prosecuted, and others not. Mueller’s team only pursued cases that they were sure would result in convictions. So far, those cases have indeed resulted either in convictions or in the defendants pleading guilty to the charges against them.]

Section V of the report provides detailed explanations of the Office’s charging decisions, which contain three main components.

First, the Office determined that Russia’s two principal interference operations in the 2016 U.S. presidential election-the social media campaign and the hacking-and-dumping operations violated U.S. criminal law. Many of the individuals and entities involved in the social media campaign have been charged with participating in a conspiracy to defraud the United States by undermining through deceptive acts the work of federal agencies charged with regulating foreign influence in U.S. elections , as well as related counts of identity theft. See United States v. Internet Research Agency, et al., No. 18-cr-32 (D.D.C.) . Separately, Russian intelligence officers who carried out the hacking into Democratic Party computers and the personal email accounts of individuals affiliated with the Clinton Campaign conspired to violate , among other federal laws, the federal computer-intrusion statute, and the have been so charged. See United States v. Neksho, et al., No. 18-cr-215 D.D.C [REDACTED — HARM TO ONGOING MATTER / PERSONAL PRIVACY]

Second, while the investigation identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to support criminal charges. Among other things, the evidence was not sufficient to charge any Campaign official as an unregistered agent of the Russian government or other Russian principal. And our evidence about the June 9, 2016 meeting and WikiLeaks’s releases of hacked materials was not sufficient to charge a criminal campaign-finance violation. Further, the evidence was not sufficient to charge that any member of the Trump Campaign conspired with
representatives of the Russian government to interfere in the 2016 election.

[EDITOR: This paragraph is undoubtedly one that Trump believes exonerates him and his campaign, but it really does not. It only states there was insufficient evidence to justify pursuing a criminal case, not that there was no evidence or suggestion of wrongdoing. If there were no evidence, the report would have categorically said as much. Later in the report, the team notes that several of the parties involved used communication tools that made it impossible for the team to recover messages between parties.]

Third, the investigation established that several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference. The Office charged some of those lies as violations of the federal false statements statute. Former National Security Advisor Michael Flynn pleaded guilty to lying about his interactions with Russian Ambassador Kislyak during the transition period. George Papadopoulos, a foreign policy advisor during the campaign period, pleaded guilty to lying to investigators about, inter alia, the nature and timing of his interactions with Joseph Mifsud, the professor who told Papadopoulos that the Russians had dirt on candidate Clinton in the form of thousands of emails. Former Trump Organization attorney Michael Cohen pleaded guilty to making false statements to Congress about the Trump Moscow Project. [REDACTED — HARM TO ONGOING MATTER] And in February 2018 the US District Court for the District of Columbia found that Manafort lied to the Office and the grand jury concerning his interactions and communications with Konstantin Kilimnik about Trump Campaign polling data and a peace plan for Ukraine.

[EDITOR: One should ask, why did they lie if nothing illegal or unethical was happening?]

* * *

The Office investigated several other events that have been publicly reported to involve potential Russia-related contacts. For example, the investigation established that interactions between Russian Ambassador Kislyak and Trump Campaign officials both at the candidate’s April 2016 foreign policy speech in Washington, D.C., and during the week of the Republican National Convention were brief, public, and non-substantive. And the investigation did not establish that one Campaign official’s efforts to dilute a portion of the Republican Party platform on providing assistance to Ukraine were undertaken at the behest of candidate Trump or Russia. The investigation also did not establish that a meeting between Kislyak and Sessions in September 2016 at Sessions’s Senate office included any more than a passing mention of the presidential campaign.

[EDITOR: Again, “did not establish” is not the same as “it did not happen or exist.”]

The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation. Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity. The Office limited its pursuit of other witnesses and information — such as information known to attorneys or individuals claiming to be members of the media — in light of internal Department of Justice policies. See, e.g., Justice Manual§§ 9-13.400, 13.410. Some of the information obtained via court process, moreover, was presumptively covered by legal privilege and was screened from investigators by a filter (or “taint”) team. Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above. And the Office faced practical limits on its ability to access relevant evidence as well-numerous witnesses and subjects lived abroad, and documents were held outside the United States.

Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated — including some associated with the Trump Campaign — deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.

EDITOR: A careful way of saying, “There’s probably damning evidence out there, if only we could obtain it.”

Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.

I. THE SPECIAL COUNSEL’S INVESTIGATION

On May 17, 2017, [then-]Deputy Attorney General Rod J. Rosenstein — then serving as Acting Attorney General for the Russia investigation following the recusal of former Attorney General Jeff Sessions on March 2, 2016 — appointed the Special Counsel “to investigate Russian interference with the 2016 presidential election and related matters.” Office of the Deputy Att’y Gen., Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters, May 17, 2017) (“Appointment Order”). Relying on “the authority vested” in the Acting Attorney General, “including 28 U.S.C. §§ 509, 510, and 515,” the Acting Attorney General ordered the appointment of a Special Counsel “in order to discharge [the Acting Attorney General’s] responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election.” Appointment Order (introduction). “The Special Counsel,” the Order stated, “is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017,” including:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

Appointment Order ¶(b). Section 600.4 affords the Special Counsel “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury , obstruction of justice, destruction of evidence, and intimidation of witnesses .” 28 C.F.R . § 600.4(a). The authority to investigate “any matters that arose … directly from the investigation,” Appointment Order ¶(b)(ii), covers similar crimes that may have occurred during the course of the FBI’s confirmed investigation before the Special Counsel’s appointment. “If the Special Counsel believes it is necessary and appropriate, ” the Order further provided, “the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.” Id. ¶(c). Finally, the Acting Attorney General made applicable “Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations.” Id. ¶(d).

The Acting Attorney General further clarified the scope of the Special Counsel’s investigatory authority in two subsequent memoranda. A memorandum dated August 2, 2017,
explained that the Appointment Order had been “worded categorically in order to permit its public release without confirming specific investigations involving specific individuals.” It then confirmed that the Special Counsel had been authorized since his appointment to investigate allegations that three Trump campaign officials — Carter Page, Paul Manafort, and George Papadopoulos — “committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 presidential election.” The memorandum also confirmed the Special Counsel’s authority to investigate certain other matters, including two additional sets of allegations involving Manafort (crimes arising from payments he received from the Ukrainian government and crimes arising from his receipt of loans from a bank whose CEO was then seeking a position in the Trump Administration); allegations that Papadopoulos committed a crime or crimes by acting as an unregistered agent of the Israeli government; and four sets of allegations involving Michael Flynn, the former National Security Advisor to President Trump.

On October 20, 2017 , the Acting Attorney General confirmed in a memorandum the Special Counsel’s investigative authority as to several individuals and entities . First , “as part of a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election,” the Special Counsel was authorized to investigate “the pertinent activities of Michael Cohen, Richard Gates, [REDACTED – PERSONAL PRIVACY] Roger Stone, and [REDACTED – PERSONAL PRIVACY] ” “Confirmation of the authorization to investigate such individuals,” the memorandum stressed, “does not suggest that the Special Counsel has made a determination that any of them has committed a crime.” Second, with respect to Michael Cohen, the memorandum recognized the Special Counsel’s authority to investigate “leads relate[d] to Cohen’s establishment and use of Essential Consultants LLC to, inter alia, receive funds from Russian-backed entities.” Third, the memorandum memorialized the Special Counsel’s authority to investigate individuals and entities who were possibly engaged in “jointly undertaken activity” with existing subjects of the investigation, including Paul Manafort. Finally, the memorandum described an FBI investigation opened before the Special Counsel’s appointment into “allegations that [then-Attorney General Jeff Sessions] made false statements to the United States Senate[,]” and confirmed the Special Counsel’s authority to investigate that matter.

The Special Counsel structured the investigation in view of his power and authority “to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 C.F.R: § 600.6. Like a U.S. Attorney’s Office, the Special Counsel’s Office considered a range of classified and unclassified information available to the FBI in the course of the Office’s Russia investigation, and the Office structured that work around evidence for possible use in prosecutions of federal crimes (assuming that one or more crimes were identified that warranted prosecution).

EDITOR: In other words, “There were so damned many, we had to pick and choose which ones would bear the most fruit.”

There was substantial evidence immediately available to the Special Counsel at the inception of the investigation in May 2017 because the FBI had, by that time, already investigated Russian election interference for nearly 10 months. The Special Counsel’s Office exercised its judgment regarding what to investigate and did not, for instance, investigate every public report of a contact between the Trump Campaign and Russian-affiliated individuals and entities.

The Office has concluded its investigation into links and coordination between the Russian government and individuals associated with the Trump Campaign. Certain proceedings associated with the Office’s work remain ongoing. After consultation with the Office of the Deputy Attorney General, the Office has transferred responsibility for those remaining issues to other components of the Department of Justice and FBI. Appendix D lists those transfers.

Two district courts confirmed the breadth of the Special Counsel’s authority to investigate Russia election interference and links and/or coordination with the Trump Campaign. See United States v. Manafort, 312 F. Supp. 3d 60, 79-83 (D.D .C. 2018); United States v. Manafort, 321 F. Supp. 3d 640, 650-655 (E.D . Va. 2018). In the course of conducting that investigation, the Office periodically identified evidence of potential criminal activity that was outside the scope of the Special Counsel’s authority established by the Acting Attorney General. After consultation with the Office of the Deputy Attorney General, the Office referred that evidence to appropriate law enforcement authorities, principally other components of the Department of Justice and to the FBI. Appendix D summarizes those referrals.

[In other words, the team found other possibly criminal acts that fell outside the constraints of its mission, and so referred those — 14 in all — to other offices to pursue.]

* * *

To carry out the investigation and prosecution of the matters assigned to him, the Special Counsel assembled a team that at its high point included 19 attorneys — five of whom joined the Office from private practice and 14 on detail or assigned from other Department of Justice components. These attorneys were assisted by a filter team of Department lawyers and FBI personnel who screened materials obtained via court process for privileged information before turning those materials over to investigators; a support staff of three paralegals on detail from the Department’s Antitrust Division; and an administrative staff of nine responsible for budget, finance, purchasing, human resources, records, facilities, security, information technology , and administrative support. The Special Counsel attorneys and support staff were co-located with and worked alongside approximately 40 FBI agents, intelligence analysts, forensic accountants, a paralegal, and professional staff assigned by the FBI to assist the Special Counsel’s investigation. Those “assigned” FBI employees remained under FBI supervision at all times; the matters on which they assisted were supervised by the Special Counsel.1 During its investigation the Office issued more than 2,800 subpoenas under the auspices of a grand jury sitting in the District of Columbia; executed nearly 500 search-and-seizure warrants; obtained more than 230 orders for communications records under 18 U.S.C. § 2703(d); obtained almost 50 orders authorizing use of pen registers; made 13 requests to foreign governments pursuant to Mutual Legal Assistance Treaties; and interviewed approximately 500 witnesses, including almost 80 before a grand jury.

[EDITOR: These numbers are impressive!]

* * *

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. The FBI’s counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. 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. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.
————
FOOTNOTE
1 FBI personnel assigned to the Special Counsel’s Office were required to adhere to all applicable federal law and all Department and FBI regulations, guidelines, and policies. An FBI attorney worked on FBI-related matters for the Office, such as FBI compliance with all FBI policies and procedures, including the FBI’s Domestic Investigations and Operations Guide (DIOG). That FBI attorney worked under FBI legal supervision, not the Special Counsel’s supervision.

——————-

To recap the report so far, it has established that (1) the Russian government interfered with the 2016 presidential campaign and election, for the express purpose of ensuring the election of Donald Trump over Hillary Clinton; (2) there were many meetings and communications between members of the Trump campaign and representatives of Russian interests, but that there was insufficient evidence to charge any involved with crimes; (3) President Trump actively interfered with the investigation, with details to be offered in Volume II of the report; and (4) there was sufficient evidence to prosecute at least four members of the Trump campaign and organization; Paul Manafort, Michael Flynn, George Papadopoulos, and Michael Cohen have already been convicted or plead guilty, and Roger Stone has been indicted and arrested. The report also notes the investigation team referred more than a dozen other possible criminal activities to other offices to investigate or prosecute.

So far, it’s not looking good for Trump.

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