Andy McCarthy’s Misconception

I was struck, in reading Andy McCarthy’s review of the Michael Cohen and Paul Manafort guilty outcomes last week (in which he measures Trump via a vastly different standard than he once measured Bill Clinton), by this erroneous claim:

The Trump camp continues to stress that Manafort’s case had nothing to do with the original rationale for Mueller’s investigation, “collusion with Russia.” But as we’ve pointed out any number of times, Mueller took over a counterintelligence investigation of Russia’s interference in the 2016 election. Possible Trump-campaign collusion with Russia was just one thread in the larger probe.

The claim that the Trump-campaign “collusion” was just one thread of what Mueller originally took over is false, but utterly critical for McCarthy’s sustained belief that Mueller has not found evidence of a conspiracy between Trump and Russia. While it is true that when Comey confirmed the investigation, he did not specify the structure of the investigation,
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
When Rod Rosenstein appointed Mueller, he described Mueller’s scope to include,
  • any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
  • any matters that arose or may arise directly from the investigation; and
  • any other matters within the scope of 28 C.F.R. § 600.4(a)

Why McCarthy made this error is clear: he uses the existence of and Mueller’s indictments in a broader counterintelligence investigation to sustain his belief that Mueller doesn’t have a “collusion” case against Trump or his associates.

At this point, it does not appear that Mueller has a collusion case against Trump associates. His indictments involving Russian hacking and troll farms do not suggest complicity by the Trump campaign. I also find it hard to believe Mueller sees Manafort as the key to making a case on Trump when Mueller has had Gates — Manafort’s partner — as a cooperator for six months. You have to figure Gates knows whatever Manafort knows about collusion. Yet, since Gates began cooperating with the special counsel, Mueller has filed the charges against Russians that do not implicate Trump, and has transferred those cases to other Justice Department components.

When it comes to the president, I believe the special counsel’s focus is obstruction, not collusion. When it comes to Manafort, I believe the special counsel’s focus is Russia — specifically, Manafort’s longtime connections to Kremlin-connected operatives. Mueller may well be interested in what Manafort can add to his inquiry into the June 2016 Trump Tower meeting (arranged by Donald Trump Jr. in futile hopes of obtaining campaign dirt from Russia on Hillary Clinton). That, however, is not the more serious “collusion” allegation that triggered the Trump thread of the investigation — cyberespionage conspiracy (i.e., Russian hacking of Democratic party emails).

That is, because Mueller indicted trolls and GRU hackers and then spun those prosecutions off to other teams (in the GRU case, back to one of the teams that originally investigated it), it is proof, in McCarthy’s mind, that Mueller isn’t targeting Trump and his associates for conspiring with Russia.

The actual background of the Mueller investigation suggests precisely the opposite. As I noted when Lawfare made precisely the same error in a post on the GRU indictment,

Friday’s indictment is, rather, the result of investigations conducted primarily in San Francisco and Pittsburgh. At the time Comey confirmed the counterintelligence investigation into Trump’s camp and at the time Comey got fired for not shutting the Trump counterintelligence investigation down, those San Francisco and Pittsburgh investigations were totally separate. Those two investigations almost certainly had little if any involvement from Peter Strzok (indeed, they involved a bunch of FBI cyber agents, a division of FBI that Strzok never tired of mocking in his texts to Lisa Page). The DOJ press release from Friday states that explicitly.

This case was investigated with the help of the FBI’s cyber teams in Pittsburgh, Philadelphia and San Francisco and the National Security Division.

Those two investigations (plus the separate one noted in Philadelphia that started later, as I understand it from what a lawyer who represented a witness in that investigation described to me) got moved under the Mueller umbrella sometime in or just before November, and now the GRU officer part of the investigation will be moved back to Pittsburgh where it started, to languish forever like some other nation-state hacker indictments investigated by Western District of Pennsylvania.

Given that both public reporting (starting in February 2017 and extending into November 2017) and Mueller team changes (not to mention my own reporting about the Philadelphia grand jury’s activity in the second half of May 2017 and my own knowledge about where I interviewed and where my interview materials subsequently got moved to) support this narrative, McCarthy (and the Lawfare crowd) might ask why Mueller decided to integrate the cybersecurity parts of the investigation, only to spin the Russian defendants back to other teams once they were indicted?

We can begin to get an answer from the two indictments that — Andy wants to believe — are themselves evidence that Mueller doesn’t have evidence on Trump’s associates but actually are. The Internet Research Agency indictment actually describes three Florida-based Trump campaign officials inconclusively, as if they were either still under investigation or at some legal risk.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”


Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that email account.


On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

And while the GRU indictment (on top of key clauses being misread by virtually everyone who has read it) doesn’t use the same convention to describe Roger Stone’s communications with Guccifer 2.0…

On or about August 15, 2016, the Conspirators, posing as Guccifer 2.0, wrote to a person who wasin regular contact with senior members of the presidential campaign of Donald J. Trump, “thank u for writing back . . . do u find anyt[h]ing interesting in the docs i posted?” On or about August 17, 2016, the Conspirators added, “please tell me if i can help u anyhow . . . it would be a great pleasure to me.” On or about September 9, 2016, the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC document posted online and asked the person, “what do u think of the info on the turnout model for the democrats entire presidential campaign.” The person responded, “[p]retty standard.”

It pointed to Russia’s response to Donald Trump’s request that they hack Hillary without referring to him one way or another.

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a thirdparty provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

What Mueller has done with both of the counterintelligence indictments that McCarthy takes solace in is lay out the Russian side of a conspiracy (and both are charged as conspiracies) with very clear spots into which American co-conspirators may be dropped when Mueller is prepared to do so. (I laid this out at more length in this post.)

Importantly, the fact that some of this investigation started out in other parts of DOJ but then got moved under Mueller make it clear that something came up in the investigation that Mueller and Rosenstein believed required they be moved under Special Counsel when they weren’t there, originally.

Let’s put it this way: Mueller didn’t subsume investigations located elsewhere at DOJ because the Special Counsel needed to be the one to indict a bunch of Russians. He did it to set up the conspiracies that would — that will — later be occupied by Russians and Americans.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

30 replies
  1. earlofhuntingdon says:

    Excellent. Thank you. You stress a major point. Conspiracies involve agreements, agreements involve two or more parties. To date, we’ve seen half that arrangement. It does not exist without the other half.

    Mueller and his team are playing chess, setting up their pieces, improving their tactics and their arguments. Their strategy they keep to themselves until it is useful to reveal it.

    Trump may have a strategy beyond his PR effort to discredit American government – which he leads and is responsible for – and its DoJ/FBI, in particular. But it’s not clear that he does, and he’s always been a one-trick pony. I don’t think he knows what is ultimately going to hit him. But fear of it is likely to be just as effective for the time being.

  2. cw says:

    Am I correct in assuming attempted collusion is identical to successful collusion under the law? If you attempt to rob a bank but don’t come away with any money, do the police ignore the attempt? And what are the odds that the Trumps, at the very least, attempted to collude? There are multiple connections between the Trump campaign and the Russians–who indisputably wanted to collude–and no examples of the Trump campaign saying no to, or reporting the Russian’s approaches. Given this, and what I have observed about Trump’s basic life philosophy, think the odds are pretty dang good. The same goes for all kinds of economic crimes and the possibility that the economic and the (at the very least, attempted) political crimes.

    So, while I find all the details very interesting, I think we should be thinking now about what Trump is going to do when the hammer starts to descend. Is there a secret committee of generals war planning this? Are Republican and Democratic leadership in congress laying contingency plans? Does the justice department have a secret cell ready to whisk Trump in to custody upon evidence of decompensation? Has someone disconnected the button?

    • bmaz says:

      Uh, no. In fact, if you start off talking about “collusion” in terms of “under the law”, you are already off the rails completely. There, simply put, is no such thing as “collusion” in statutory criminal law. Now, if you want to talk about conspiracy, then there is a real discussion to be had.

      And, no, let us have no secret society of generals or secret cells of anybody doing anything. You seriously think an ECOMCON cabal out of Seven Days In May is the answer to anything??

      • cw says:

        You are right about collusion. And I was being sort of facitious about the generals, but I do think the odds are super likely that Trump is going down and that he will try to do all kinds of ridiculous stuff to avoid it, including start a war. So I am hoping that there are people in the government prepared to stop him.

  3. Charles says:

    By focusing on financial crimes, Mueller seems to be preparing the nation to accept later indictments on crimes that will be seen as more political in nature. Once we understand that these people lie and steal, it’s easier to understand that they also betray.

    If this interpretation is correct, then Mueller is doing a superlative job, helping the American people to understand that this is not the action of some Deep State or Angry Democrats, but of an investigation patiently doing its duty in the face of congressional obstruction and, in Ellis’s case, judicial intemperance. As a nation, we need to come out of this investigation more unified and respectful of the need for independence and competence of institutions than we were going in.

        • pseudonymous in nc says:

          That’s lowish-hanging fruit, where the documents tell the story. Lying to investigators is similar territory. Signing a tax return means it can be introduced as evidence without question. Tax fraud is also something that even a jury with a magahat cultist seems to accept unanimously at trial, partly because doin’ yer taxes is such a pain in the arse for Americans. And it was Manafort who decided to take the rocket docket route.

          I don’t think it’s meant to be preparatory. It’s indicting and getting deals with US citizens where it’s a slam dunk, and pushing trickier stuff when Russians are on the indictment. As EW suggests, the family of charges being used against the IRA and GRUccifer are likely to be used against Americans eventually along with ConFraudUS, and having those indictments on the record is more important in terms of defining the theory of the case than Paulie’s rugs.

          • Charles says:

            There can be multiple motives for charges. You’ve proposed two. I’ve proposed one, so we have three:

            Easy to prove, even to the MAGA crowd
            Lining up the future ducks, using indictments of Russians, for indictments of Americans
            Preparing public opinion for charges of disloyalty at the highest levels

            These are not mutually exclusive. But unless Mueller can protect the investigation, indictments of the Trumps will get buried. If Trump can install Kavanaugh and hold the Senate, he will be in a very strong defensive position. Kavanaugh would probably vote to invalidate the Special Counsel.  In any case, nothing can happen in terms of congressional investigations until the new Congress is seated–five months from now.

            To date, Mueller has avoided charges that directly involve the Trumps.That probably lowered Trump’s urgency to act. But getting Cohen, Pecker, and Weisselberg on board all at once doubtless has increased Trump’s sense of urgent peril. The main justification Trump has been using to attack Mueller is that there is nothing to do with Russia.

            While the latest poll is not in, the Manafort verdicts as well as the Cohen plea probably moved public opinion to much more strongly support Mueller. Mueller gained a lot in credibility in early August (though, oddly, so did Trump). The problem is that the public wants the investigation wrapped up. They certainly don’t want any October surprises.

            But if Marcy is right that nothing much new will be added after September 7th, then the election will be held on the ground that Trump may be guilty of sleazy practices and having a lot of crooked friends, but not that he is a risk to national security. If that’s the terrain, Trump will probably continue to hold the Senate.

            But if any member of the Trump family is indicted on a count of conspiring with Russia–and Don Jr has certainly been lined up–then the public will draw the conclusion that Trump is a national security risk. Enough people could peel away to cost the Republicans the Senate. If such an indictment happens soon, it could even cost Trump the Kavanaugh nomination. Guys like Manchin, Donnelly, Flake, and Corker might hesitate to have a vote like that on their record. Maybe even Heller and Murkowski would flip.

            So, my view is that of the three reasons that we’ve listed for the indictments for financial crimes, the third is what Mueller views as key to protecting the investigation. I think he has structured his investigation in part to protect his investigation… and part of that is moving public opinion.

  4. Yogarhythms says:

    EW Ty,
    AM’s and others misconceptions regarding OSC: foundational CI investigations, investigatory direction, suspects are gently elongated and thinned to illuminate their false conclusions. Reading EW posts are as satisfying intellectually as eccentric skeletal muscle contractions through Tai Chi Chuan and Yoga.

  5. Petesh says:

    @Yogarhythms: Careful with that analogy — I can think of lard-asses who would agree on the comparison and still find EW posts unsatisfying!

    I, however, thank Marcy for her indefatigable work. She may or may not turn out to be 100% correct (I’d guess high-90s but what do I know), but it’s important work, well done.

  6. Bri2k says:

    Thanks for another top-shelf post and for putting “collusion” in quotation marks. That term is the criminals’ and their defenders’ framing. The crime is conspiracy. I get my hackles up every time the media uses “collusion” and doesn’t bother mentioning the actual crime is conspiracy. I don’t know if this is lazy journalism or being written to please other interests.

    • Buford says:

      I have the same reaction to the use of the word, “meddling” in our election…we were “attacked” by russia…

      • Hika says:

        The term “sabotage” works for me to describe the Russian involvement in the 2016 (and now 2018) elections.

      • SpaceLifeForm says:

        Clearest I guess would be ‘catch’.

        I know what you are saying, but others could connote negatively, to imply that you said Mueller ‘set up’ the conspiracy.

  7. Avattoir says:

    Andy worked in the office of the US attorney for SDNY. DoJ wasn’t hiring morons in those days, all applicants really needed to prove they were thoroughly up to date on all criime statutes, court process and, the biggest topic (so big it gets at least its own class in most law school curricula but IMO deserves 2), the law of evidence. And Andy worked there during a very active and particularly stressful time, including the earlier attempt at bringing down the WTC.

    The only reasonable conclusion is, his take is consciously, deliberately, intentionally, willfully wrong. That puts him in Rudy G territory – unsurprisingly.

    It might be my imagination, but to me NR, already presently many a dicey read, has really sunk down deep into the latrine since Rich Lowry “assumed power” (to paraphrase Dick Cheney).

    • pseudonymous in nc says:

      McCarthy is on the road to “so what?” and the only question is when he finally arrives.

    • Doctor My Eyes says:

      All conspiracy theorists are necessarily nut jobs, doncha know?  Conspiracies in the popular mind are by definition things that could not possibly have occurred. This is by design.  Who benefits from having created this absurd notion that Americans should never ever listen to anyone who claims there are or have been conspiracies to defraud them of their right to democratic rule?  I’ll never understand why the two most unsettling political events of my lifetime, JFK’s assassination and the WTC attack, were wrapped up tidily with congressional investigations even a competent 8th grader could demonstrate as absurd interpretations of available evidence, this followed by an astonishing degree of pressure to stifle further discussion.  It feels we’re going down the same road here, with the stakes even more immediate.  Is it believed Americans can’t handle the truth? Are the conspirators so clever and powerful that they can control the narrative?  Are people so fearful that they embrace a narrative that would not stand up to clear-headed analysis?  Are powerful people so accustomed to keeping up a front of democratic rule when they understand all too well the work-a-day way in which democracy is subverted that the habit of denial is too ingrained to resist no matter the stakes? Is what Harold Pinter called a “tapestry of lies” just so powerful that even patriotic, informed, intelligent citizens cannot see what is in front of their faces?  This behavior is and has been a mystery to me.

      Political language, as used by politicians, does not venture into any of this territory since the majority of politicians, on the evidence available to us, are interested not in truth but in power and in the maintenance of that power. To maintain that power it is essential that people remain in ignorance, that they live in ignorance of the truth, even the truth of their own lives. What surrounds us therefore is a vast tapestry of lies, upon which we feed.

      To me the most significant political quote of this century came from Karl Rove: “We create our own reality.”  Too many people actually believe this is possible. Unfortunately for us all, controlling the news cycle does not equate to controlling reality.  Could it be that people we rely on for national security, and those charged with oversight and reporting, are so accustomed to self-serving lies that they cannot clearly see an actual threat when it arises?

      It never happened. Nothing ever happened. Even while it was happening it wasn’t happening. It didn’t matter. It was of no interest. The crimes of the United States have been systematic, constant, vicious, remorseless, but very few people have actually talked about them. You have to hand it to America. It has exercised a quite clinical manipulation of power worldwide while masquerading as a force for universal good. It’s a brilliant, even witty, highly successful act of hypnosis.


    • emptywheel says:

      Oh, there’s more than two, I think. Possibly up to five. I’m just not sure what all of them mean.

  8. Rusharuse says:

    Lanny D: “Dancing backwards through bullshit in high heels” derby.
    1. “My client witnessed Trump receive advanced notice of Trump Tower meeting” — meaning “please Mister Mueller give us a deal”.
    2. “I cannot independently corroborate that this actually happened” — meaning “Oh shit! I just confirmed my client lied to Congress” or/and “Mr Trump I can help you bigly If re re-offer that pardon and kick in a few bucks to my #gofundme”.
    3. From the cheap seats: “Fuck off Lanny and your shit pasting twin Rudy G, you both play Americans for fools . . fucking fuck off!”

  9. orionATL says:

    the most intetesting questions about andrew mccarthy at this point is:

    why is he so willfully misrepresenting the special counsel statute, and

    why is he so willfully mistepresenting the work of the appointed special counsel, mueller?

    no one does public work like this, which mccarthy surely knows from his professional background is repeatedly misleading, without a powerful motive. what is that motive?

    what does mccarthy believe or know he has to gain from this extended gaslighting?

  10. SteveB says:

    McCarthy has been persistently and consistently giving the Trump team cover at every hands turn, and whilst the bulk of any given piece is usually devoted to intricate (tortuous) legal analysis there is usually some near hysterical element in the lede . A goodexample where he was dead wrong on the law from start to finish was a piece about Gates plea deal

    With Rosenstein’s passive approval, Mueller is shredding Justice Department charging policy by alleging earth-shattering crimes, then cutting a sweetheart deal that shields the defendant from liability for those crimes and from the penalties prescribed by Congress. The special counsel, moreover, has become a legislature unto himself, promulgating the new, grandiose crime of “conspiracy against the United States” by distorting the concept of “fraud.”

    Why does the special counsel need to invent an offense to get a guilty plea? Why doesn’t he demand a plea to one of the several truly egregious statutory crimes he claims have been committed

    When called out on the wholesale inaccuracy of this piece he simply doubled-down in an update to it, in a pretence as to what the substance of the critique amounted to. His blatant partisan dishonesty was never more evident than in this piece of shamelessness.


    But he keeps coming back to muddy the narrative, and so deconstruction of his counter narrative is required over and again.

    A sharpened stake and a mallet seem to be required.

  11. oldoilfieldhand says:

    Don’t forget garlic cloves and crosses on the windows and doors.
    DOJ Mantra: Overkill is vastly underrated. The more charges available, the more likely a plea will be structured to the advantage of a single witness and the obvious disadvantage of the target. Looking at you Jared…

    • orionATL says:

      thanks. such history provides context. why indeed, we should all be asking with teddy, do folks lend andrew mccarthy their attention? listening to liars seems to be a fatal attraction these daze.

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