Update: My analysis has received a major boost from the news today that the Grand Jury in the ‘mystery appellant’ case “continues robustly”, despite the end of the Special Counsel’s investigation. This strongly suggests that while the OSC fought, and won, their case against the Mystery Appellant, that the person or entity against whom the Mystery Appellant was to be a witness is not being prosecuted by OSC. That case, it would seem, continues. And taken together, this must mean that Mueller had an overall interest in the case, but was not himself prosecuting it. The facts are at least compatible with a scenario in which Mueller referred a US person to another federal office for prosecution, and then a foreign-owned company witness refused to comply with the Grand Jury’s subpoena for information in the case.
Of course, it also suggests – again supporting this article’s analysis – that although the “Mueller Grand Jury” is named after the Special Counsel, who convened it – that other federal prosecutors are using it to bring their prosecutions.
In my last piece I explained why William Barr’s letter was in fact not terrible, and constituted good news for foes of Donald Trump.
This piece addresses what I believe to be one of the most fundamental misconceptions, indeed the foundational misconception, of the world-wide news reporting that Mueller has cleared Trump and his team of collusion with Russia.
It is the mistaken idea that any sealed indictments that remain at other prosecutorial offices must be on ancillary matters – they can’t be on the substance. Mueller’s remit was to investigate collusion with Trump and Russia, so the assumption goes. That was his core mission. So, while money laundering and other crimes might be passed off, it’s Mueller’s office itself that would prosecute collusion.
That idea is false.
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As I pointed out last time, Jim Comey had testified that he was ‘working with two main sets of prosecutors – EDVA and Main Justice, National Security Division.’ That was the normal practice of the investigation which Mueller took over and I believe there is ample evidence that it remained Mueller’s practice. As any case on the Trump-Russia substance, involving a US person came up, Mueller referred it to another prosecuting office than his own.
Why would he farm off the prosecutions to his main duty? To protect his main duty, to investigate and produce a report.
Protecting the Investigation
Firstly, Trump Russia collusion is, necessarily, a conspiracy. Prosecuting cases piecemeal reveals details of other classified cases. It would also reveal part of Mueller’s report, spoiling the whole. So why would OSC itself not indict under seal? Common sense dictates that had Donald Trump seen 43 sealed indictments listed from the Special Counsel or attributed by leaks to the Special Counsel, he would shut down the probe or interfere in its work. Clearly the most practical course for Mueller would be to refer cases to other prosecutors continuing Comey’s normal practice. A large number of *pending sealed cases* remain at the federal DC court, and they were referred in 2018.
Protecting the Report
Mueller’s main job, as Jim Comey said when theorizing about how a Special Counsel would work, was to oversee the investigation, as a whole. As the prosecutions and sealed indictments racked up (I believe), Mueller continued to write his report. If he additionally had to prepare 43 separate prosecutions (for example) the report would never be delivered.
Barr Is Not Playing Games But Adhering to the Rules
I have heard it said that it would be “too cute” for Barr to say that “no OSC sealed indictments remain” when Trump Russia sealed indictments exist by the dozen, as I have reported, elsewhere. But that is not true. The AG cannot comment on a sealed indictment that is pending. It is sealed. He cannot comment on pending cases, or prejudice a jury. Just because he is both allowed and mandated to talk about the Mueller Report, he is not allowed to talk about prosecutions filed under seal at other offices. Barr is sticking to the rules.
Why These Indictments Are Still Sealed
It is, again, not for any nefarious purpose. It is simply because Mueller’s report, which needs to be cleared of Grand Jury information, has not yet gone to Congress. There is no basis for the current fear that Barr will not supply it. These indictments are on the substance. They reveal what is in the Mueller Report. Therefore, they cannot be unsealed until Congress has read it.
This story will be updated tomorrow.
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