Apr 6, 2019
The MUELLER REPORT is a single report on a counterintelligence investigation and a criminal investigation: some implications
(Posted to Twitter on March 31)
In a blog today, @rgoodlaw and @jgeltzer continue to pursue the question whether or in what way the MUELLER REPORT is an investigative report.
Here’s my own take on this question. (This is in part a follow-up to my thread earlier this evening.) 1/47
I think it can be inferred with near certainty at this point that there is a single MUELLER REPORT, and that there will never be more than one (although eventually there will be a redacted version for the public and an unredacted version for Congressional committees). 2/47
I think it can also be inferred with near certainty that the MUELLER REPORT is neither fish nor fowl. 3/47
By this I mean that it is neither just a report on a criminal investigation (i.e, a 28 CFR § 600.8 report) nor just a report on a counterintelligence, national security investigation. It is likely to be both. 4/47
(So far as I know, a report on a counterintelligence or national security investigation doesn’t have statutory guidelines. 5/47
Any credible allegation can be used to start a CI investigation, and how these are reported to Congress seems to be a matter of established practice rather than one of regulatory or statutory specification.) 6/47
I am unaware of any statute, rule, guideline, or regulation that requires a special counsel’s report to be either fish or fowl: that is, EITHER a report on a criminal OR a report on a counterintelligence investigation. 7/47
All that the special counsel regulation (28 CFR § 600.8) specifies is that the special counsel must report to the Attorney General his charging and declination decisions, and to give his reasons for them. 9/47
But that only specifies what a special counsel MUST do. It does not set limits on what he or she can do, 9/47
and we already have plenty of reasons to think that the MUELLER REPORT will be difficult — in fact probably impossible — to categorize easily. 10/47
The FBI”s Operation Crossfire Hurricane was opened on 31 July 2016 as a counterintelligence investigation, not a criminal investigation. 11/47
On May 17–18 of 2016, Operation Crossfire Hurricane was subsumed into Mueller’s investigation when he was appointed as a special counsel. 12/47
At some point (it’s not clear when) Mueller framed his investigation as a criminal investigation rather than a counterintelligence investigation. 13/47
As Mueller saw it (at some point), he was investigating whether the Trump campaign engaged in a *criminal conspiracy* with the Russian government or Russian operatives to influence the presidential election. 14/47
We know that this happened because Barr’s letter tells us that Mueller did not establish that there was a conspiracy (coordination) between the Trump campaign and Russia, and that he (therefore) did not indict anyone for being a participant in a conspiracy. 15/47
But the MUELLER REPORT cannot be a typical, garden variety 28 CFR § 600.8(c) report on a purely criminal investigation either. We know this because of its reported length — close to 400 pages, not including tables and attachments — if nothing else. 16/47
Even more pointedly, we know that the Report cannot be a typical DOJ report on a criminal investigation because there were no indictments. 17/47
The DOJ has a policy of not including derogatory information on any unindicted individuals in its public reports. Almost invariably, in fact, 600.8(c) reports are never (or almost never) made public at all. 18/47
If there are no indictments, no public report is issued. If there are indictment(s), no public report is issued either. 19/47
Information about indicted individuals is made public, but not by the Justice Department. It is made public by the judiciary, which has the responsibility of publishing court filings. 20/47
The result is that if Mueller had had to operate within the confines of a report on a criminal investigation, he couldn’t talk about anyone at all! 21/47
He couldn’t report publicly on indicted individuals, because findings about indicted individuals appear in charging documents. 22/47
And he couldn’t publish derogatory information about unindicted individuals, because that would contravene well-established (and entirely justifiable) Justice Department policy. 23/47
As I noted in the thread I posted earlier today, Mueller could in principle publish non-derogatory information about unindicted individuals and nothing more, but that would be weird, pointless, and almost unlawfully tendentious (though Trump defenders would love it!). 24/47
So what we must conclude, surely, is that the MUELLER REPORT is a report that is neither fish nor fowl — on an investigation into Russian interference in the election 25/47
and any links and/or coordination between the Russian government and individuals associated with the Trump campaign. 26/47
Furthermore, there is no reason why Mueller’s reporting on his findings and conclusions couldn’t have been put into a single report. Indeed, I can think of reasons why Mueller would have decided AGAINST writing more than one report. 27/47
As I believe Mueller saw it, the framework of a criminal conspiracy investigation provided a powerful and much needed focus for what could otherwise have turned into a sprawling and rather confusing and poorly organized report. 28/47
The overarching question Congress and the public wanted Mueller to answer was whether, or to what extent, there was collusion. 29/47
The public’s use of this term is much looser than anything that is appropriate in a purely legal context, but the public wasn’t interested in having a purely legal question answered. 30/47
The public wanted to know if there was WRONGDOING, and if so, how bad was it? (The obvious answer, which we know in advance, is: A LOT.)
Wrongdoing, needless to say, is not a legal concept, but it is the appropriate one for this context. 31/47
So what I believe Mueller must have done in his investigation is ask that question — which is essentially a national security question, and even a political question in a very broad sense of that term — within the framework of asking: was there a criminal conspiracy? 32/47
It must be emphasized that this would be a totally inappropriate thing to do (and unthinkable for a straight shooter like Mueller) if his investigation had been a criminal investigation and his report was a report on a criminal investigation. 33/47
But there is no reason why Mueller had to be restricted to that kind of investigation or report. 34/47
You see: if counterintelligence and criminal considerations are BOTH in play in the MUELLER REPORT, then Congress and the public can put Mueller’s findings in the appropriate context, which is: 35/47
to what extent do the findings TEND to establish that there was coordination or conspiracy? — even if we know that at the end of the day Mueller didn’t find enough evidence to satisfy the beyond-a-reasonable-doubt standard of evidence a prosecutor needs to prevail in court. 36/47
The advantage of using a criminal conspiracy framework for what is essentially a counterintelligence or national security report should be particularly apparent in the second part of the MUELLER REPORT, 37/47
In which Mueller declined to recommend criminal charges against Trump for obstruction of justice. 38/47
It is important to acknowledge that if his had been a purely criminal investigation, Mueller would not be able to include any evidence in his report of a crime underlying an obstruction of justice charge 39/47
unless he could establish according to the beyond-a-reasonable-doubt standard that there was such a crime — and we know from Barr’s letter that Mueller concluded he never reached this standard of proof or evidence. 40/47
But in the context of a national security investigation with significant political implications, including that kind of evidence would not be inappropriate. In fact, it would likely be unavoidable. 41/47
If, as I suspect, this is what Mueller did, then Congress and the public will be able to evaluate how CLOSELY the “wrongdoing” came to an actual conspiracy, and, in turn, how close all of that came to obstruction of justice. 42/47
How close did he come? If the report is what I think it is, each of us will be able to come to our own determination. 10% of the way? 50%? 75% 90%? 43/47
Mueller did not reach a determination about obstruction of justice . Barr decided that question himself for the Department of Justice and therefore for the Administration. But Barr isn’t the one ultimately who will decide that question. 44/47
It is a question for Congress to decide, and I’m sure that Schiff is right that that is exactly what Mueller had in mind all along. 45/47
Once the MUELLER REPORT is out, and Congress has an unredacted version of the report and access to all the supporting materials, Congress will be in a position to address that question itself.
And it might very well give a different answer from Barr’s. 46/47
Buckle up, folks.This could get wild. 47/47
