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Key Factors to Consider Now That Mueller’s Russia Report Has Arrived


Leading up to now there has been speculation that something big was brewing regarding the status of Robert Mueller‘s Russia investigation. People reading the tea leaves of prosecutor Andrew Weissmann‘s departure and other team activity surmised that Mueller’s investigation was wrapping up.

Nor did it go unnoticed when these words showed up in a recent filing: “The counsel responsible for preparing the response face the press of other work and require additional time to consult within the government.” That Mueller attorneys Michael Dreeben and Adam Jed said they were busy this week and needed more time caught attention for obvious reasons.

Earlier Thursday, it was reported that Attorney General William Barr was going to have a meeting at the White House. Despite speculation, it was soon after said that the meeting wasn’t about Mueller.

Rumor still had it that a report might be handed over by end of week, but we also know such predictions about the special counsel’s timeline have been wrong time and again. This time, the report did drop. Attorney General William Barr confirmed this in a Friday letter to Congress.

The most important question is whether we will get to see the report, but that’s a question for another day. While we await a Mueller report in some form, here are some key factors to keep in mind.

Barr appears ready to move quickly

Barr said that he may have something to say about Mueller’s “principle conclusions” as early as this weekend.

“I write to notify you … that Special Counsel Robert S. Mueller III has concluded his investigation of Russian interference in the 2016 election and related matters,” Barr said. It does not appear that there will be any new indictments.

Barr is “reviewing the report and anticipate that I may be in a position to advise you of the special counsel’s principle conclusions as soon as this weekend.”

Congress, House Democrats leading the charge, may threaten subpoenas to get their hands on the Mueller report, but a court fight may very well follow.

Is the worst offense a crime or…?

Mueller has not previously alleged that there was a grand conspiracy between Russia and the Trump campaign in 2016. If that continues to be the case, we need to ask what the worst offenses are. If the obstruction probe of the president comes to nothing, Mueller may still catalogue some problematic things. Since it’s DOJ policy not to indict a sitting president, the best you might get from him is a series of embarrassing or wrongful conduct that Congress may see as impeachable offenses.

As former acting U.S. Solicitor General Neal Katyal put it, “Examine whether the Report is limited to criminal acts. Some of the most egregious allegations against Trump, like lying to the American people about his business dealings with Russia before the 2016 election and saying he had no biz in Russia, are not necessarily criminal.”

Examine what Mueller has accomplished

What has Mueller exposed by getting guilty pleas out of George Papadopoulos, Paul Manafort, Rick Gates, Michael Flynn, Richard Pinedo, Alex van der Zwaan, and Michael Cohen? What has been accomplished by charging Roger Stone, Konstantin Kilimnik, 12 Russian military intelligence officers, the Russian organization known as Internet Research Agency, and Concord Management and Consulting LLC?

For one thing, this demonstrates that President Trump has surrounded himself and his campaign with individuals who have engaged in criminal acts, many of them by lying. In the case of Cohen, an employee who worked for Trump for a decade has implicated the president in hush payments made to Stormy Daniels and Karen McDougal. Cohen pleaded guilty to campaign finance violations. He said “Individual-1” directed him to commit the crimes and later acknowledged that this person was indeed President Trump. Cohen also answered questions before Congress and told investigators to dig deeper into the Trump Organization. Trump Organization CFO Allen Weisselberg currently has an immunity deal in place with SDNY prosecutors. His name came up multiple times during congressional hearings.

One thing Mueller didn’t accomplish was getting a sit-down interview with Trump. Headline-grabbing Trump critic George Conway said Thursday that an unnamed former lawyer for Trump told him that Trump had to be prevented from talking to Mueller because “he’d lie his ass off.”

It’s not clear which lawyer he was talking about, but John Dowd was a former Trump lawyer who advised above all that the president should not be interviewed by the special counsel. He said of the Mueller investigation, “I mean, look what Bob’s doing, what I call nickel-dime process crimes.”

“I ran big corruption cases. I didn’t go around, picking scabs and just making any case I could make. If there was a petty case, I shifted it to someone else. I didn’t do it. And that’s where I disagree with Bob,” he added.

Dowd was also quoted by Bob Woodward calling Trump a “fucking liar” and warning him “Don’t testify. It’s either that or an orange jump suit.” Dowd immediately disputed those quotes after Woodward’s book was published.

“I did not refer to the president as a ‘liar’ and did not say that he was likely to end up in an ‘orange jump suit’. It was a great honor and distinct privilege to serve President Trump,” he said, adding that the Woodward book “appears to be the most recent in an endless cycle of accusations and misrepresentations based on anonymous statements from unknown malcontents.”

In the case of Manafort, you have a source of funding for the entire investigation. Most recent numbers had Manafort’s seized assets at $26.7 million and the cost of the probe at around $25 million. One of the reasons Mueller wanted Manafort to be hit with a serious sentence for bank and tax fraud offenses was a matter of deterrence. He wanted to show that no one is above being prosecuted for these crimes and that the penalty is not just prison but hefty fines. He also wanted to show that the prosecuting someone for violating the Foreign Agents Registration Act (FARA) was a possibility.

In the cases of Flynn and Gates, you have two cooperating witnesses who have participated in multiple criminal investigations. This brings us to our next point.

Where else will this take us?

It is likely that additional criminal prosecutions will be referred out to other U.S. Attorney’s offices, and that some of them could have something to do with Trump. For example, we need to keep our eyes on the SDNY investigation of the campaign finance issue and the office’s increasing attention on the Trump Organization.

The trial of former Flynn business partner Bijan Kian is still going on, while Roger Stone’s has yet to begin. Stone’s trial date has been set for Nov. 5. The identity of the mystery foreign company owned by a mystery foreign country amassing fines to resist a Mueller subpoena has yet to be revealed. The “several ongoing investigations” Gates is cooperating in are not entirely clear. One investigation of interest could involve the Trump Inaugural Committee, where Gates was a chairman.

If Manafort gets a pardon from the president, there are state charges awaiting him in New York. However, questions have been raised about whether the charges would violate double jeopardy protections.

Then there are parallel investigations involving Russia, such as the prosecution of Maria Butina for conspiracy to act as a foreign agent, and the prosecution of her Republican operative and NRA-connected boyfriend Paul Erickson. The guilty plea of lobbyist and former Manafort associate Samuel Patten is another case running parallel to the Mueller probe.

Patten and Manafort worked on Ukrainian lobbying campaigns together. Patten reportedly worked on Cambridge Analytica operations. It’s possible that he, like Gates, has been questioned about the inauguration. Patten “admitted to procuring Trump inauguration tickets illegally for a Ukrainian oligarch and a Russian closely associated with Paul Manafort.”

Questions also remain about Donald Trump Jr. and his signature appearing on a hush payment reimbursement check. It appears Trump Jr. may have been one of the executives identified in the SDNY’s Cohen campaign finance violation investigation.

We do not know how much of the Mueller report will be made publicly available. This is something up to Barr’s discretion and also something Trump may attempt to get involved in, even as he downplays the report. Trump may, for example, attempt to assert executive privilege to keep some parts of the Mueller report from going public.

On the other hand, Congress may attempt to take the subpoena route.

The House of Representatives recently voted 420-0 for the Mueller report to be made public. Trump and his legal team, however, may get involved due to privilege claims. That could result in a protracted legal battle. Rudy Giuliani once promised that he’d duel Mueller to the Supreme Court, if necessary.

It’s likely not the last we’ll hear from Mueller

There will, in all likelihood, come a time when Robert Mueller is asked to testify before Congress about his investigation and his findings. Lawyers are already cautioning that the Mueller report will be interpreted through partisan lenses rather than through a reading of the plain text.

Some might think Mueller should explain what happened. Others might want to ask him what working with acting Attorney General Matthew Whitaker was like.

Also, President Trump will probably go back to the “no collusion” narrative and say that he’s been proven right — that this was a “witch hunt” all along. The number of guilty pleas from people associated with the Trump campaign and that offshoot investigations that spawned from this investigation contradict the idea that the investigation was baseless, even if it doesn’t result in allegations of illegal collusion.

We already know that Mueller’s mandate was quite broad, and the slew of cases referenced above are indicative of that:

The Special Counsel 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:

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

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters [emphasis ours].

In a few cases, the Cohen one immediately coming to mind, Mueller actually referred other cases to U.S. Attorney’s Offices.

Mueller’s investigation will be remembered for close-to-the-vest style

One thing that did not seem to be a serious problem at any point of the Mueller investigation was leaks. Mueller spokesman Peter Carr was profiled as “Mr. No Comment” to illustrate his role in information control.

Roger Stone and his legal team, you may recall, attempted to accuse the special counsel of improperly leaking his indictment to CNN in violation of a court order, but Mueller pushed back on that successfully.

Joe Lockhart, former White House press secretary for Bill Clinton, recently criticized former special prosecutor Ken Starr for taking the opposite approach back in his day.

“With Judge Starr and his team, I read it every day in the paper. I read about secret grand jury testimony every day in the paper. I saw Judge Starr in his driveway doing press conferences. This was an attempt to put political pressure on the President (Clinton) to get him to resign,” he said, adding that Mueller “managed to do this the right way, which is to keep it redacted and they’ll reveal their cards when they want.”

Editor’s note: this story was first published and Thursday and updated in light of Friday’s events.

[Image via Mandel Ngan/AFP/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.