What the Mueller Investigation Is, and What It Isn’t

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A woman holding a sign about the Mueller probe in LA in January 2018, reflecting a common, if misguided, attitude among the left. (Wikimedia Commons)

As many publications have noted, May marked the one-year anniversary of the start of special counsel Robert Mueller’s investigation into the Trump campaign’s possible coordination with Russia in 2016. It’s been an eventful year to say the least, complete with intrigue, political drama, and striking revelations about events taking place right under our noses during the 2016 election cycle. But for the most part, the atmosphere around Mueller’s probe has been marked by a mountain of partisan mudslinging, headline-friendly speculation, and a stunning level of misinformation coming from Congress, from the President, and of course from the media. Having written about the Mueller investigation on a fairly regular basis in the past, I know first-hand how easy it is to get those precious clicks using an eye-catching and foreboding headline about the probe.

Opinions on the investigation have stacked up neatly along party and cultural lines — if you’re Sean Hannity, House Intelligence Committee Chairman Devin Nunes, or Trump himself, the Russia investigation is a rigged “witch hunt,” and Mueller is a left-wing activist collaborating with the Deep State to bring Trump down; if you’re Rachel Maddow, Rep. Ted Lieu, or Saturday Night Live, Mueller’s probe is the answer to the #NeverTrump crowd’s prayers, and the special counsel is the hero America needs but doesn’t deserve.

Of course, it would be disingenuous to put both the left and the right’s mischaracterizations of the Mueller investigation on the same footing — while the president’s opponents clearly hold the high ground in the mainstream media landscape, the power of these liberal pundits can only go so far. Trump and his loyalists on the other hand have used the full weight of the federal government to challenge and discredit Mueller and his team, and Trump has reportedly tried to shut the probe down twice now — once in June, and once in December.

Nevertheless, both sides have politicized the investigation to a point that it has become two competing caricatures of itself in American society. A bit of clarification is definitely in order:

The Russia Investigation Didn’t Start with the Mueller Probe

While Mueller has, for better or for worse, become the face of the Russia investigation over the last year, his team’s probe is actually only one of four investigations into the matter. Three committees in Congress — the House Intelligence Committee, the Senate Intelligence Committee, and the Senate Judiciary Committee — were also tasked with investigating connections between Trump and Russia. The House probe, headed by Republican pro-Trump Rep. Devin Nunes, closed its inquiry in April and absolved the Trump campaign of any wrongdoing, despite allegations from the national security community that Nunes had spectacularly mishandled the probe, put intelligence sources in jeopardy, and left numerous leads uninvestigated.

But all these probes only seriously got underway after the election, and Mueller himself was only appointed to the role after Trump fired former FBI director James Comey in May 2017. While this pivotal moment is relatively well-understood by the American public, the roots of the broader investigation, back when it was being handled by the FBI, are not. This is part of the reason why some of the conspiracy theories Trump has been pushing over the last year — about widespread bias against him in the FBI, the partisan nature of the Christopher Steele dossier that he claims launched the investigation, and a politically-inclined spy within his campaign — have been able to gain such potency.

What actually happened was far more subtle. In London in May 2016, a drunken former Trump campaign foreign policy adviser, George Papadopoulos, divulged to former Australian diplomat Alexander Downer that Russia had damaging emails from Hillary Clinton and her campaign. When these emails started getting dumped online by WikiLeaks later that year, the Australian notified the FBI about what Papadopoulos had told Downer.

So far, there is no way to ascertain when the FBI’s Russia investigation truly began. Some reports allude to its existence as far back as late 2015, when suspicious contacts between the Trump team and Russia first caught the intelligence community’s attention. Others point to the FBI’s interest in future Trump associate Carter Page, whom they had been monitoring since 2013. But the Papadopoulos incident provided the first real probable cause for the bureau to deepen their infant Russia probe. It was only after this took place that the “spy” at the center of Trump’s spygate conspiracy, former Cambridge professor and FBI informant Stefan Halper, began communicating with members of Trump’s campaign. But contrary to Trump’s claims on Twitter, he was by no means a planted spy, was not selected by Barack Obama, and there is no reason to believe he was at all interested in improving Democrats’ chances in the election; the majority of Halper’s government work took place under Republican administrations, according to the BBC.

There certainly are reasons to criticize FBI counterintelligence operations involving private citizens, along with the bureau’s alleged failure to disclose the informant’s activities to Congress. But what Trump and his compatriots have done is take advantage of the public’s misunderstanding of intelligence methods and the details of the Russia probe before Mueller took over to distort the narrative, and to further discredit the special counsel’s ongoing investigation.

Perhaps most importantly though, all of these key events took place well before the final compilation of the Steele dossier, a mostly uncorroborated collection of raw intelligence which for a long time was thought to have been the jumping off point for the Russia investigation. But by the time the dossier was finally finished in December 2016, the FBI portion of the probe had already been under way for half a year, if not more. It was only months after this took place that Mueller took the reins of the investigation in May 2017.

The Mueller Investigation is Not Looking for “Collusion”

One of the most pervasive ideas about the Russia investigation is that its goal is to uncover evidence of a conspiracy between Trump and Russia to rig the election in the president’s favor.

Technically speaking, this isn’t true.

Robert Mueller was formally appointed to the position of special counsel in a letter written by Deputy Attorney General Rod Rosenstein on May 17, 2017, in which Rosenstein clearly laid out the scope of Mueller’s mission. The letter authorized Mueller “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: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; (ii) and any matters that arose or may arise directly from the investigation; (iii) and any other matters within the scope of 28 C.F.R. § 600.4(a).”

Not once does Rosenstein use the word “collusion,” and neither did Comey in his March testimony. Instead the word “coordination” is used. According to the Merriam-Webster Dictionary, “collusion” means a “secret agreement or cooperation especially for an illegal or deceitful purpose. Meanwhile, the definition of “coordination” in Merriam-Webster sounds much more benign: “the process of organizing people or groups so that they work together properly and well; the harmonious functioning of parts for effective results.”

While it might seem like splitting hairs, the distinction between the two is important — while collusion implies active and premeditated criminality, coordination is something much broader, and could include merely working separately but deliberately toward a common goal. Yet Rosenstein’s letter goes even further than that, and directs Mueller to look into any links that existed between Russia and the Trump campaign as well — and there have been plenty of them. From the now-infamous Trump Tower meeting in June 2016 between the Trump team and a Russian lawyer-turned-Kremlin informant to attorney Michael Cohen’s efforts to get Putin to help build a Trump Tower in Moscow, Mueller has had plenty of material to work with.

But contrary to popular belief, Rosenstein’s letter doesn’t charge Mueller with simply investigating whether or not such links or coordination took place; rather it tasks him with digging into these leads and determining whether federal laws were broken, and gives him the power to prosecute any crimes he uncovers.

The letter also does not limit his activity to matters related to Russia. It allows him to look into “any matters that arose or may arise directly from the investigation,” and the Code of Federal Regulations section that sets out his jurisdiction explicitly states that perjury and obstruction of justice are within his purview. Because Mueller’s appointment was spurred by James Comey’s firing, obstruction was on the table from the very beginning. As details emerged about Trump’s reasons for dismissing Comey, his frustration with Attorney General Jeff Session for failing to protect him from the Russia probe, and his efforts to get the FBI to lay off his former national security adviser Michael Flynn, the obstruction case soon gathered momentum. But the obstruction of justice inquiry was always taking place at the same time as the original Russia investigation, not in place of it as Trump has sometimes suggested.

There is one problem though: if no evidence of criminal activity is found amid the numerous links between Trump and Russia, how could he have obstructed justice if there was no justice to obstruct to begin with?

That would certainly be a legal quandary, if it were not for the fact that we already know that crimes took place.

Mueller Has Indeed Uncovered Crimes — But That Doesn’t Mean Trump Will Get Indicted

A recent Navigator Research poll found that a shockingly high percentage of Americans, 59%, do not believe that the Mueller investigation has discovered any criminal activity. In fact, it has already led to 17 indictments, and 5 people have pleaded guilty to the charges against them — Michael Flynn, George Papadopoulos, former deputy campaign manager Rick Gates, Russian government collaborator Richard Pinedo, and Dutch lawyer Alex van der Zwaan. Van der Zwaan has already been sentenced, and is currently serving out a 30-day prison sentence in Pennsylvania.

Aside from the ultimately symbolic indictments of Russian nationals and companies involved in the 2016 Russian election interference operation, most of the individuals charged have, in the grand scheme of things, been indicted for relatively minor crimes. Flynn, Papadopoulos, and van der Zwaan pleaded guilty to lying to the FBI, and Pinedo admitted to selling bank accounts created using stolen identities to Russia. The two people who have the most to lose from Mueller’s investigation so far are Gates and Manafort, who have both been charged with numerous crimes including tax fraud, bank fraud, and conspiracy against the United States. There is reason to believe that van der Zwaan’s testimony after he was indicted played a role in building a powerful enough case against Gates that he was forced to take a plea deal.

Because Mueller’s stated mission concerns federal crimes, when his team uncovered evidence of wrongdoing on Michael Cohen’s part, they referred it to the Southern District of New York. The fact that federal authorities were then able to get the necessary warrants to raid Cohen’s apartment means there must be very strong evidence of wrongdoing — the standard for such a raid is generally quite high. Since the raid, revelations about Cohen’s financial relationships with Russia have continued to mount, and according to Stormy Daniels lawyer Michael Avenatti, tapes from Cohen’s apartment apparently contain recordings of Trump’s conversations with Cohen.

At the end of the day, while Mueller’s team clearly intends to prosecute the crimes they have uncovered so far, the most important aspect of its work is to determine whether Trump himself did anything wrong. By charging Flynn, Gates, and Papadopoulos, Mueller has converted the small fish in the investigation into assets who have been forced to cooperate with him to go after the big fish. Federal authorities are likely seeking to do the same with Cohen — flipping both him and Manafort would give Mueller and the feds a much clearer picture of how exactly Trump and Don Jr. dealt with the foreign nationals the campaign was in touch with. After all, Manafort was in the room with Trump Jr. at the June 2016 Trump Tower meeting, and now, another meeting Don Jr. had with Saudi and UAE representatives offering Trump electoral help during the election has also turned plenty of heads.

But if Trump is found to be complicit in any kind of coordination efforts, cover-ups, or illicit links with Russia, what would he actually be charged with? “Collusion” or coordination itself is not a crime. Most experts agree then that the most likely crime he might be charged with is conspiracy to violate US election laws by soliciting “things of value” from foreign nationals and entities. Any kind of help from foreigners, be it political “dirt” on Clinton from Russia or assistance from the Gulf countries, is illegal under US law, regardless of whether the country offering cooperation is friendly to the United States. If Trump or his associates are found to have been involved in the Russian hacking operation, it is possibly they might be charged with violating the Computer Fraud and Abuse Act as well.

Whatever happens though, Mueller has made it clear to Trump’s own attorneys how he will handle his team’s ultimate findings — rather than prosecute federal crimes Trump might have committed, he will either write a report about his findings and send it to Congress, or he will write up indictment documents that include Trump as an unindicted co-conspirator. Either way, his approach will be a conservative one — he will refuse his mandate to prosecute the federal crimes, instead sticking to the constitutional view that sitting presidents cannot be indicted for any offenses unless they are impeached.

Once all is finally said and done, Mueller can only act as a tool — a vital, versatile, and incisive tool, but one that ultimately must serve the Congress of the United States and adhere to the rules set forth for his investigation. He will not be the silver bullet liberals have hoped for since November 8, 2016, and he will not be the partisan cudgel the right has been fuming about since he took over the investigation. In many ways, Mueller is perhaps the most middle-of-the-road figure that could have been appointed to lead the probe, and represents not an extraordinary new development in American politics, but rather a cautious and conventional approach to the federal legal system itself.

Freelance writer/reporter constantly in transit. Middle East & Eastern Europe | National Security | Foreign Affairs

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