CASE NOT CLOSED BY ANDREW McCARTHY
http://edition.washingtonexaminer.com/infinity/article_popover_share.aspx?guid=213c
Even if Mueller’s report is a dud, Washington will freak out.
Special counsel Robert Mueller’s final report is said to be close to completion and ready for submission to the Justice Department.
There is even conjecture that it is already finished, but Mueller decided, or was perhaps persuaded by newly confirmed Attorney General William Barr, to delay submission until President Trump returns from the Southeast Asia talks with North Korean strongman Kim Jong Un.
In a perfect world, the final report would be a nonevent. Alas, that is not our world, so Mueller’s conclusion will be only the beginning of a free-forall, featuring Washington hypocrisy at its worst.
The special counsel has conducted a legal probe, but the Trump-Russia narrative has always been political, more about ramifications for 2020 than accountability for 2016.
In that imaginary, perfect world, the Mueller report would be a nonevent for three reasons.
First and foremost, the report should not tell us much that we do not already know. Of course, there are fascinating facts to be learned. What was the precise nature of “collusion” between the Kremlin and the Trump campaign? What exactly happened at the Trump Tower meeting between top campaign officials and a lawyer connected to the Putin regime — the meeting at which Donald Trump Jr. expected to receive information that might devastate Hillary Clinton’s candidacy, but that we’ve been led to believe was a dud? Did the president obstruct the Russia investigation by firing FBI Director James Comey? Did he obstruct justice by earlier leaning on Comey to drop the investigation of retired Gen. Michael Flynn, the national security adviser Trump had just fired for allegedly misleading Vice President Mike Pence about his conversations with Russia’s ambassador to the U.S.? All interesting questions. But they’re not supposed to be answered publicly unless charges are filed.
The media-Democrat complex has been extremely supportive of Mueller in hopes that he would transcend what, in the end, is his modest role: that of prosecutor. Democrats prefer to see him as counsel to a congressional impeachment committee, on the hunt for high crimes and misdemeanors, unconstrained by the federal penal code.
Or even better, as an investigative journalist in the Bob Woodward mold, preparing a mini-bio on the thousand reasons Trump is unfit for the duties of his high office. Or at the very least, be a special prosecutor modeled on Democrats’ Clinton-era bête noire, independent counsel Kenneth Starr.
To be sure, Democrats and their punditocracy had no use for Starr back in the day, vilifying his every move, ridiculing his inflation of “lies about sex” into a “constitutional crisis.” But that was then. For present purposes, Starr is an exemplary historical figure because he produced a mammoth narrative that served as the road map to impeachment. What they loathed at the time, they will demand now.
Mueller, however, fills none of the roles his heretofore admirers have in mind. Special counsel is a snazzy title, and the office is endowed with a bloated staff and seemingly bottomless budget.
But that obscures the fact that Mueller is merely a Justice Department prosecutor, an inferior officer who, unlike the nation’s 94 district United States attorneys and the upper-echelon political appointees at Main Justice, has not even been confirmed by the Senate. Yes, Mueller is a prestigious personage in law enforcement circles, a former FBI director who held high-ranking positions as a Justice Department lawyer. Technically speaking, though, the only difference between him and thousands of other line prosecutors who work cases is that Mueller reports directly to the attorney general.
He is not independent. He is firmly within the Justice Department’s chain of command, bound by its guidelines and regulations.
Why does that matter? Because under Justice Department protocols, prosecutors do not publicize the evidence against persons whom they do not formally charge with crimes. Federal probes tend to uncover all sorts of juicy facts, many of great public curiosity. The prosecutor’s task, however, is not to be a raconteur, policy analyst, or historian. It is simply this: to determine whether an investigation has generated sufficient evidence to justify seeking an indictment.
Every criminal investigation focuses on factual transactions that may give rise to criminal offenses prescribed by statute.
Every criminal offense is composed of certain “essential elements,” the three or four components of activity, actus reus, and intent, mens rea, that must be proved beyond a reasonable doubt to support a conviction. Even if those elements are provable in a given case, Justice Department standards also come into play. Namely, the exercise of prosecutorial discretion that asks whether an offense is serious enough to warrant federal prosecution.
If a case is adjudged unworthy of prosecution, a federal prosecutor simply closes the file. There is a short, nonpublic, intra-office memo in which it is noted that the case was discontinued for want of evidence or that it was not of a gravitythat called for prosecution, versus some other remedy, such as an administrative fine or a diversionary program for petty offenses. No public pronouncement is made that the investigation has been closed. After all, the decision not to charge is without prejudice; if new evidence emerges, the case can simply be reopened. There is no double jeopardy protection against being investigated twice, only against multiple prosecutions for the same offense.
The rule of the road is thus that the Justice Department speaks only when ready to indict formally. Indictment is the point in our system when an accused, presumed innocent, is vested with due process protections, assistance of counsel, discovery, subpoena power, etc., that enable him to answer the charges in court, where the government is put to its burden of proof. Unless the government is prepared to back its allegations with the presentation of compelling admissible evidence, it is required to remain silent.
To its credit, the Mueller probe has honored these standards. To say that we should not learn much that is new from the special counsel’s final report is not to muzzle the prosecutor. Indeed, we must acknowledge that we have already learned a great deal from his work.
Mueller has indicted several people who participated in, or were in the orbit of, the Trump campaign: Flynn, Paul Manafort, Richard Gates, George Papadopoulos, Michael Cohen, and Roger Stone, as well as Alex van der Zwaan and Konstantin Kilimnik, who aided and abetted in some of the schemes of Manafort and Gates. With respect to each defendant he has charged, the special counsel filed either a narrative indictment that explained the allegations in detail or a “statement of the offense” that explicated the conduct constituting the offenses charged. If there is a valid criticism to be made of Mueller’s practice in this regard, it is that the prosecutor’s charges, mostly process crimes involving false statements to investigators, have been puny in comparison to his narrative statements. The latter say far more than what is necessary to prove the formal accusation levied. For example, “collusion” pours off every page of the lengthy “statement of the offense” Mueller filed in Papadopoulos’ case: meetings with shadowy figures portraying themselves as Kremlin assets (one even pretending to be Vladimir Putin’s niece!), talk of a trove of Clinton emails, purported plans for summits between the GOP nominee and the Russian dictator. In the end, though, it’s collusion interruptus — Papadopoulos pleaded guilty to lying to the FBI about the date of a meeting. The more recent Stone indictment features 20 pages of heavy breathing about Russian cyber ops, WikiLeaks legerdemain, and the breathless anticipation of a Clinton campaign implosion. When you flip to the last two pages, though, Stone is charged in seven process crimes that impeded congressional investigations — nothing to do with conspiracy, espionage, or hacking.
Patently then, the narratives are designed to tell a larger story of Trump-Russia interaction. That is not the prosecutor’s job unless that interaction, or “collusion,” has risen to the level of a Trump-Russia conspiracy.
Mueller has also filed indictments against two sets of Russian operatives: a total of 25 individuals and three corporations, charged with hacking conspiracy, i.e. the case against intelligence agents, or social media influence campaigns, the “troll farm” case. In addition, a fraudster, Richard Pinedo, has been charged with helping the Russians acquire fake identities that facilitated their schemes.
Commentators take pains to note that Mueller, while investigating suspected coordination between the Kremlin and the Trump campaign, has charged nearly three dozen defendants. Omitted are the inconvenient facts that the indictments of Trump associates have nothing to do with Russia’s interference in the 2016 election, while the indictments of Russian cyber spies have nothing to do with Trump. In fact, their operations predated Trump’s entry into the campaign, and sometimes worked against Trump.
The blunt fact is that the special counsel has neither charged the president with a crime nor even implicated him in criminal activity. To exaggerate the gravity of convictions of Trump associates by highlighting the number of Russians simultaneously indicted is disingenuous.
That said, the indictments of alleged Kremlin operatives are significant as a statement of Mueller’s theory of the case. The Russians are, well, in Russia.
They are under Putin’s protection. They are never going to be extradited to the United States, and they are never going to see the inside of an American courtroom.
Naturally, Mueller’s prosecutors knew this when they filed the charges.
The two Russia indictments, consequently, are a narrative freebie. They are Mueller’s opportunity to make extravagant allegations that will never be challenged in court and will therefore stand as the official United States government version of what happened.
Mueller exploited this opportunity, attempting to put to rest some nettlesome issues, particularly the basic question of whether the Russian government is guilty of meddling in the 2016 election.
While the FBI, CIA, National Security Agency, and director of national intelligence have publicly reported their conclusion that Russia interfered, there is a huge difference between an intelligence finding (basically, a probability) and proof beyond a reasonable doubt (the demanding courtroom standard for establishing guilt).
Let’s stipulate that, as a matter of intelligence analysis, the agencies are right that Putin’s regime was behind the hacking of Democratic email accounts and the peddling of campaign-related propaganda on social media. It would nonetheless have been extremely difficult for prosecutors to prove the regime’s culpability under the demanding due process standards that apply in criminal trials. Federal investigators, for some reason, never subpoenaed or otherwise seized the DNC servers that were allegedly penetrated by Russian cyber spies. For intelligence analysis purposes, it might be perfectly appropriate for the FBI to rely on a forensic examination conducted by a reputable private company, CrowdStrike, for the conclusion that Russia did it. In a criminal trial, by contrast, defense lawyers would portray investigators as derelict in (a) failing to perform the rudimentary investigative steps of taking custody of the corpus delicti and conducting their own forensic examination and (b) farming out an investigation essential to national security, and not even to their own contractor, but rather to a firm retained by Democrats, who have a powerful political motivation to blame Russia. In a criminal trial, even if prosecutors could get over this hurdle, what witnesses do they have who can testify about the Putin regime’s activities and intentions? Intelligence agents have wide latitude to base conclusions on hearsay, historical information, and sensitive sources who cannot testify publicly; prosecutors need courtroom proof.
Still, let’s concede for argument’s sake that Mueller could prove the assertions in the Russia indictments he knows he’ll never have to back up in court. It is worth noting what the special counsel did not allege: that Kremlin operatives conspired with the Trump campaign.
Such an allegation, which is at the heart of what Mueller was appointed to investigate, is not posited in any charging document nor has it been elicited from any defendant in a guilty plea proceeding.
Contrast that to the prosecution of Michael Cohen by federal prosecutors in the Southern District of New York.
Cohen, Trump’s former lawyer and self-described “fixer,” pleaded guilty in Mueller’s probe to misleading Congress about the duration of negotiations to construct a Trump Tower in Moscow. In the SDNY case he pleaded guilty, among other charges, to two counts of campaign finance nondisclosure violations, involving hush money payments to two women who claim to have had extramarital flings with Trump about a dozen years ago. When Cohen entered his guilty plea in court, prosecutors made a point of adducing from him that the president, then a candidate, had directed Cohen to make the payments. This is why Trump has potential criminal jeopardy in that case (although there are good legal defenses available if he is ever charged). But here is the salient point: If Mueller had proof that Trump had directed his subordinates, for example, to collude in Russian activities or to lie to investigators, he would have made that proof public when the relevant subordinates pleaded guilty, just like the SDNY did. Since he did not, we must infer that he lacks such evidence.
In any event, prosecutors are supposed to speak publicly through the charges they file and remain mum about suspicions that do not pan out or behavior that, though unsavory, does not cross the threshold of criminal misconduct.
The charging documents Mueller has filed provide significant insight about what the government believes Russia did to interfere in the election, the relationships Manafort and Gates had with Ukrainian politicians and oligarchs supported by the Kremlin, and about how some people affiliated with the Trump campaign, mostly at a low level, misled investigators about matters that, while “material” in the legal sense, seem mostly trivial in the greater scheme of things.
All that information is already public, as it should be.
On the other hand, recall that, for well over a year, the Mueller investigation was overseen by Rod Rosenstein, the deputy attorney general who appointed the special counsel. It was Rosenstein who drafted the memorandum the administration originally offered as the rationale for the president’s firing of Comey.
Rosenstein’s reasoning? Comey had flagrantly violated Justice Department policy and due process principles by holding a press conference to outline the evidence against Clinton even though the emails investigation resulted in no charges against her. When a person is not charged, whether it is you, me, Clinton, or the president of the United States, the Justice Department is not supposed to disclose the fruits of its investigation.
The second reason Mueller’s report should be a noneventinvolves the nature of the probe. Rosenstein assigned Mueller a counterintelligence investigation, specifically, the investigation described in then-Director Comey’s March 2017 House Intelligence Committee testimony.
Comey had publicly acknowledged that the FBI, pursuant to its counterintelligence authorities, was examining Russia’s interference in the election, a probe that included scrutiny of any Trump campaign contacts with Russian government operatives and possible Trump campaign coordination in Russian government activities.
This was a stunning announcement.
It is not just that the Justice Department and FBI customarily refuse to confirm or deny the existence of any type of investigation, nor even that these guidelines against prejudicing uncharged persons forbid the public identification of the subjects of any kind of investigation. It is that counterintelligence investigations are classified. Frequently, top-secret. The objective of a counterintelligence probe is to divine the intentions and thwart the actions of foreign powers (generally, hostile regimes or terrorist organizations) that may harm national security and other vital American interests. Unlike in criminal investigations, the aim is not to root out crime or build prosecutions. Investigators have latitude to probe activity that is not necessarily criminal in part because the counterintelligence probe is secret, thus there is no possibility of tainting people who may be investigated even though they haven’t done anything illegal.
The assignment of a counterintelligence probe to a special counsel was highly irregular. Counterintelligence work is not prosecutor work; it involves intelligence gathering and analysis, not the application of legal principles in court proceedings. Lawyers have no special aptitude for it, and such investigations are not routinely assigned to prosecutors. They are worked by trained FBI intelligence agents. Government attorneys get involved only if legal support is required, such as if the agents need to request domestic spying authority from the Foreign Intelligence Surveillance Court.
Not surprisingly, then, the special counsel regulations do not provide for an appointment in a counterintelligence investigation.
There is not supposed to be a special counsel unless two conditions are met: (1) concrete factual grounds to believe a crime has been committed that would trigger a criminal investigation or prosecution and (2) a conflict of interest so severe that the Justice Department cannot ethically handle the criminal investigation, such that an attorney from outside the government is needed. In his haste to appoint a special counsel in the frenetic days after Trump fired Comey, Rosenstein flouted these rules by not articulating a basis for a criminal investigation of the president. It has become increasingly manifest that there was none.
On that score, it is incoherent to claim, as has former FBI Deputy Director Andrew McCabe (fired for lying to agents investigating his leak of investigative information to the press), that there was fear that Trump may have obstructed the FBI’s Russia investigation by firing Comey. Of course, it is understandable that FBI and Justice Department officials were flabbergasted when Trump, the day after dismissing Comey, spoke insultingly of him for the consumption of Russian diplomats, foolishly adding that the firing removed “pressure” that he had been under due to “Russia.” All that said, though, Trump never took any steps to interfere with the Russia investigation; the “pressure” he felt was due to Comey’s refusal to state publicly what he was privately assuring the president: Trump was not a suspect.
More to the point, a president cannot be said to “obstruct” a counterintelligence investigation as he might a criminal investigation. The latter type of probe is done to vindicate the law in court proceedings, and presidents may be liable if they corrupt the investigative process (e.g., by tampering with witnesses or evidence). To the contrary, a counterintelligence investigation is done for the president. It is an intelligence gathering exercise in support of the president’s national security duty to safeguard Americans against foreign threats. It is completely within the president’s discretion to shut down a counterintelligence investigation (which, again, Trump did not do). It is the president, not the FBI, who determines the nation’s intelligence priorities. Pace McCabe, it is not the FBI’s Russia investigation; it is the president’s Russia investigation that the FBI is supporting. It could be unwise to shut down a counterintelligence probe; it would not be illegal.
To the extent Mueller’s final report is more expansive than would be a narrow explanation of a charging decision in a criminal case, it is because he was given the extraordinary task of assessing the Russia threat for counterintelligence purposes. That is a classified mission, which obviously militates against disclosure.
Finally, Mueller’s report should be a nonevent because the regulations intend it to be. Unlike Starr, Mueller is not operating under the old independent counsel statute, which was allowed to lapse after the Clinton-Lewinsky scandal. That law required the independent counsel to furnish a report that addressed not only court-prosecutable crimes but also potential impeachable offenses that Congress might consider. As already observed, Mueller has no such duty; he is merely a prosecutor whose duty is to determine whether or not there is sufficient evidence to file charges and to explain that determination to the attorney general.
The regulations, moreover, call for the special counsel’s report to be confidential.
It is supposed to be written for the eyes of the attorney general only, making it like the routine exercise of closing a case in a district U.S. attorney’s office. The sole difference is that the law vests the attorney general with discretion to determine how much, if any, of the report may be disclosed. In exercising that discretion, the attorney general must account for the laws and policies that discourage disclosure: the due process standards against publicizing the evidence against uncharged persons, the national security imperative of maintaining the secrecy of classified intelligence about foreign powers, and any judicially recognized confidentiality privileges, in
cluding the executive privilege that protects presidential communications with close advisers, at least when preserving confidentiality would not cover up criminal activity.
In light of these considerations, Mueller’s report should not cause a stir. We already know that, through 20 months of work, he has not alleged wrongdoing by the president. We know, moreover, that the charges he has filed in elaborate narrative documents appear to preclude the possibility of a Trump-Russia criminal conspiracy.
This is Washington, of course, so there will be a ruckus regardless. Now in control of the House, Democrats began grousing weeks ago that the failure to disclose the report in toto would amount to a scandalous cover-up. They are promising to subpoena the report, heedless of the Justice Department’s strong legal justifications for withholding it. They are promising to subpoena Mueller himself, heretofore their white knight, for chapter and verse on what he learned. Since impeachable offenses need not be penal offenses, they will insist the absence of criminal charges against Trump is beside the point. They will demand the full report so that articles of impeachment can be considered.
For his part, Barr committed in his confirmation hearing to provide as much transparency as the law and the circumstances reasonably allow. That could mean no transparency or it could mean something that looks like openness but is really just a rehash of what Mueller has already made public. There has been some suggestion that the Justice Department might provide an unclassified summary of the special counsel’s report, similar to what the intelligence agencies did when they inculpated Russia after the 2016 election. But that will satisfy no one.
For months, congressional Democrats have expressed outrage over inquiries by Republican-dominated committees into the Obama Justice Department’s use of counterintelligence authorities to investigate the Trump campaign. Democrats applauded as Main Justice and the FBI stonewalled demands for documents and testimony; the media chimed in, accusing Republicans of undermining vital institutions that undergird the rule of law. Now, of course, everything will be different. Democrats and their media megaphone will insist that the “public interest” (i.e., their own political interest) requires that every comma in Mueller’s report be revealed. Although most Americans have moved on, we will be told the Trump-Russia probe is simply too critical for the observance of such niceties as due process.
The Mueller investigation may be at an end. The fun is just beginning.
Andrew C. McCarthy, a former chief assistant U.S. attorney in New York, is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor.
Federal probes tend to uncover all sorts of juicy facts, many of great public curiosity.
The prosecutor’s task, however, is not to be a raconteur, policy analyst, or historian.
The regulations call for the special counsel’s report to be confidential. It is supposed to be written for the eyes of the attorney general only, making it like the routine exercise of closing a case in a district U.S. attorney’s office.
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