The release of the notification letter on the Mueller Report on Friday afternoon caused twin surges of hope and despair across the nation. Trump fans gleefully noted that they were vindicated, and so, with barely-concealed glee, did national news reporters who had, throughout, downplayed the significance of what Donald Trump and his team did to collude with Russia in the 2016 election.
A ‘senior Justice official’ – in all likelihood Bob Barr’s spokesperson – then briefed to all news channels that there were no further ‘Mueller led indictments’ coming, whether sealed or unsealed. This blog reported exclusively, in late 2017, that Mueller had ‘dozens of sealed indictments‘ and we included those obtained by offices of the DOJ other than his own. Several months later, senior NSA veteran and national security journalist John Schindler echoed this reporting from his own sources. The mainstream press, and various citizen journalists on Twitter, all crowed that we were wrong. The lack of ‘Mueller led indictments’ and the winding up of the Special Counsel’s Office, the message came, meant that Donald Trump was in the clear on the main issue Mueller was hired to investigate – collusion between his campaign and the Russians. Oh, sure, there were odds and ends at other courts, and some of his existing cases would be handed off, but there would be no new indictments – and nothing on the substance.
But there is no reason to suppose that this ‘take’ – near universal among American journalists – is accurate. In fact, I believe it to be demonstrably false. Making predictions when we are close to the revelation of the Mueller report is a risky business; but some risks are worth taking. Here’s our breakdown. Oh, and if you find our journalism worthwhile, please consider a donation – we rely wholly on reader support, as this platform’s advertising package mandates including Yandex, the Russian ad website that was involved in attacking the election.
Mueller Farmed Out His Cases
“No new Mueller-led indictments” is undoubtedly true, if Barr’s office says so. However, the crucial mistake the media made is to equate that with “no new indictments”. The record factually shows that Mr. Mueller had joint prosecutions with offices of ‘main Justice’, and that he referred, for indictment, cases out to other federal prosecutors. There is sometimes confusion as to whether we mean the fall-back position of state prosecutions, which Trump cannot pardon. We don’t. In the case of Michael Cohen, Mueller referred it to SDNY (the federal court). In the case of Rick Gates, Mueller signed the indictment but the case is at the District of Columbia. Ditto with Manafort and Konstantin Kilimnik. Because Manafort refused to waive venues, he had two trials, one at the Eastern District of Virginia, again signed by the Special Counsel.
Now, all these trials were ‘Mueller led’. Mueller himself signed the indictments. But they all have something in common, too. None of them indict a US person for any crimes arising from collusion with the Russian government. The trials of Paul Manafort, the conviction of Gates, arose from crimes he committed by colluding with the Ukranian government when it was run by a Russia-friendly puppet.
Rod Rosenstein’s letter authorizing Mueller as Special Counsel is explicit that he is taking over the FBI probe into Russian interference in the 2016 election, including whether any members of the Trump campaign colluded with the Russian state. He is authorized, but not mandated, to bring Federal Prosecutions on matters arising from this investigation. And Mueller indicted a number of Russian entities for attacking the election, including entire military units of the GRU, as well as trolls and their handling organizations included, but not limited to, the Internet Research Agency. Mueller has not considered it “appropriate and necessary” to bring, himself, prosecutions against Americans involved in this matter, although there are plenty of redacted references to Americans in the indictments.
The media has taken this to mean that if Mueller did not personally bring or seal the indictments on Trump-Russia related offenses, they do not exist.
But that is wrong.
Comey: ‘Main Justice’ Offices Would Still Prosecute Under a Special Counsel
Mueller was taking over the FBI investigation. And the FBI investigation was bringing its prosecutions to prosecutors at main divisions of the Federal Courts. In testimony to the Senate Judiciary Committee, Comey said:
HIRONO: So in the investigations that you’re currently doing on the Russian interference and the Trump team’s relationship, are you coordinating with any U.S. attorney’s office in these investigations?
COMEY: Yes, well — two sets of prosecutors, the Main Justice the National Security Division and the Eastern District of Virginia U.S. Attorney’s Office
Now, here is Comey’s really important answer, for the present circumstance. He is asked if a Special Counsel is appointed, would the FBI end its work with these career prosecutors and simply transfer everything to his office?
HIRONO: So should the A.G. decide to go with this special prosecutor, then you would end your engagement with these other two entities and work with the DOJ special prosecutor?
COMEY: Well, I could — yes, potentially or it could be that in some circumstances, an attorney general will appoint someone else to oversee it and you keep the career level prosecutive team. And so to the prosecutors and the agents, there’s no change except the boss is different
Comey corrects Senator Hirono here, saying that the Special Counsel would oversee the prosecutions, in such a circumstance, but that the ordinary, main Justice prosecuting offices – the career prosecutors – would continue to work the cases, as would the FBI agents on those cases, but they would report to the Special Counsel rather than to the FBI Director.
That means that Bob Mueller took over cases from Comey that were at the National Security Division of ‘main Justice’ and the Eastern District of Virginia. It also means that ordinary Federal Offices would continue to prosecute under the Special Counsel as ‘boss’, ‘overseeing’ the work. In other words, the idea that only cases with ‘Robert Mueller’ as signatory on the indictment sheet fall under Mueller’s investigation is wrong.
Mueller’s Mandate: To Investigate, Not to Prosecute
Rosenstein’s letter uses the word “authorized” both for ‘investigate’ and ‘prosecute’. But the eye might slide past the title of his letter, and it should not:
APPOINTMENT OF SPECIAL COUNSEL TO INVESTIGATE RUSSIAN INTERFERENCE WITH THE 2016 PRESIDENTIAL ELECTION AND RELATED MATTERS
The special counsel is not merely authorized to investigate, he is mandated, or appointed, to do so. Mueller must investigate. That is what Rosenstein appointed him to do. Rosenstein did not order him to prosecute, and certainly not to prosecute directly. Therefore, if Mueller found, or if he took over cases that were already advanced under Jim Comey – it has been my reporting that all three of Trump’s eldest children will be indicted, and I can report today that on Eric Trump and Donald J Trump Jr, Mr. Comey was already close to an indictment for both of them before he was fired – there was no requirement for Mueller himself to bring those cases. In that he took over Comey’s investigation, Mueller necessarily took over cases which, Comey testified, were already being worked on in two main Federal offices.
Mueller Has Effectively Told Us That Trump Russia Cases Are With Other Federal Offices
Rick Gates continues to cooperate with other federal prosecutors. Mueller’s heavily-redacted case filings show us this, as a fact.
“The status of this matter has not changed substantially since the January report, as defendant Gates continues to cooperate with respect to several ongoing investigations, and accordingly the parties do not believe it is appropriate to commence the sentencing process at this time,” they wrote in a one-page update for U.S. District Judge Amy Berman Jackson of the District. The investigations were not described.
Clearly, then, the other investigations are not with the Special Counsel, and they are sealed. If they do not relate to Trump and Russia, why are they sealed?
The same report refers to Mike Flynn and Bijan Kian’s indictment for attempting to kidnap a US person. Federal prosecutors are fighting discovery requests, calling them “sensitive” and referring to “other investigations” – again, clearly sealed, and clearly not with Mueller’s office – where disclosure could be harmful.
But during a Friday hearing in Alexandria federal court, Assistant U.S. Attorney James P. Gillis resisted handing over some “sensitive” documents to Kian’s attorneys, saying “there are other investigations that would or could be hampered by disclosure of unfettered information.”
In short, it could easily be that the vast majority of the sealed indictments that exist were obtained under Director Comey, or even in the interregnum week after Comey was fired and before Mueller was appointed.
It is this reporter’s firm belief that Mueller has dozens of sealed indictments under his belt, at other offices. His report had to be presented to the Justice Department, and to Congress. The main question of whether the Trump campaign’s members colluded would have required all related cases to be brought under seal; if indictments were revealed before Mueller’s report was delivered, partial information about one suspect or another suspect would have disclosed Mueller’s conclusions before Congress and Justice got to see them. Furthermore, later today we expect some kind of brief executive summary will go to Congress. I do not expect we will see an accompanying unsealing of indictments, although it is possible. Mueller and Barr are likely to believe that Congress must have a chance to digest the report, and levels of classified and unclassified release must be worked out, first. Indictments released piecemeal, or in advance of this, would reveal information too early.
I therefore theorize that after the full report, or a version thereof, is released and digested by Congress, and after a declassified version is made available to the American people, that we will see the unsealing of indictments on the main question. That process may take two weeks; it may take a month. But one way or another, the end is in sight.
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