Rod Rosenstein’s Unfortunate Vocabulary: Defining a Criminal Investigation by “Links” and “Collusion”

Rod Rosenstein is the very unlikely hero of the Mueller investigation. “Rod is a survivor,” Jim Comey said after getting fired. “And you don’t get to survive that long across administrations without making compromises.”

Yet here we are, 22 months after he appointed Robert Mueller to investigate an investigation Trump tried to kill by firing Comey, awaiting the results of that investigation.

At times, I think Rosenstein didn’t imagine (and doesn’t now acknowledge) the damage his bend-don’t-break has done along the way. While based off the very sound precedent that existed until Comey’s declination speech about Hillary, it seems ridiculous for him to claim that the full results of the Mueller investigation can’t be shared with Congress, as he’s now claiming, given how he has provided unprecedented disclosure to Congress about the investigation already, including the first ever unsealed probable cause FISA application.

It will take some years to measure whether Rosenstein chose the best or perhaps only the least worst approach to the last several years.

But there’s one thing he did that really makes me uncomfortable, today, as we all await the results of the Mueller report: his mandate to Mueller.

As has been noted countless times in the last 22 months, Rosenstein asked Mueller to investigate:

    • 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;
    • any other matters with the scope of 28 C.F.R. § 600.4(a).
  • 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.

We actually know the answer to the first bullet, in part: As I laid out here, during five key interactions pertaining to the question of a possible conspiracy between Trump’s associates and Russia, there was direct contact between someone the government has deemed an agent of Russia and the Trump campaign:

  1. January 20, 2016, when Michael Cohen told Dmitry Peskov’s personal assistant that Trump would be willing to work with a GRU-tied broker and (soft and hard) sanctioned banks in pursuit of a $300 million Trump Tower deal in Russia.
  2. June 9, 2016, when Don Jr, knowing that currying favor with Russia could mean $300 million to the family, took a meeting offering dirt on Hillary Clinton as “part of  Russia and its government’s support for Mr. Trump.” At the end of the meeting, per the testimony of at least four attendees, Don Jr said they’d revisit Magnitsky sanctions if his dad won.
  3. August 2, 2016, when Paul Manafort and Rick Gates had a clandestine meeting with Konstantin Kilimnik at which Trump’s campaign manager walked Kilimnik through highly detailed poll data and the two discussed a “peace” plan for Ukraine understood to amount to sanctions relief.
  4. December 29, 2016, when (working on instructions relayed by KT McFarland, who was at Mar-a-Lago with Trump) Mike Flynn said something to Sergey Kislyak that led Putin not to respond to Obama’s election-related sanctions.
  5. January 11, 2017, when Erik Prince, acting as a back channel for Trump, met with sanctioned sovereign wealth fund Russian Direct Investment Fund CEO Kirill Dmitriev.

That Peskov’s assistant (and whatever representative from Putin’s office that called Felix Sater the next day), Sergey Kislyak, and Kirill Dmitriev are agents of Russia is clear. With the indictment of Natalia Veselnitskaya in December, the government deemed her to be working as an agent of Russia during the same time period she pitched sanctions relief to Trump’s campaign. And while the government hasn’t proven it beyond quoting Rick Gates acknowledging he knew of Konstantin Kilimnik’s past with the GRU and FBI’s belief that he continues to have ties, the government certainly maintains that Kilimnik does have ties to Russian intelligence.

Those are links. It’d be useful to have an official report on them. But since Mueller hasn’t charged them as a conspiracy, we may only learn what we’ve seen in plea agreements or official testimony to Congress.

Likewise Rosenstein’s invocation of “collusion” in the unredacted parts of his memo describing the scope of the investigation as it existed in August 2017 (it expanded and contracted after that point, so there are like different memos).

Allegations that Paul Manafort:

  • committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;

Here, unlike in the initial mandate, Rosenstein at least noted that Mueller was assessing whether crimes were committed in using that squishy language. But he used the word “collusion,” which started to be politicized by March 2017, when Comey tried to correct it once and for all.

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.


Collusion is not a legal term. It is not one I have used today. I said we are investigating to see if there is any coordination between people associated with the campaign– [my emphasis]

Sure, “collusion” might be understood to incorporate a bunch of possible crimes, and so appropriately didn’t limit Mueller to one specific crime as he investigated Manafort (but then, so did the term, “coordination”). But I nevertheless think that using the word has confused the issue of what Rosenstein intended Mueller to be able to reveal, which would instead be conspiracy and a bunch of other crimes covering up evidence of coordination that Mueller has found necessary and appropriate to charge, and not whether there was “collusion.”

All the while, people on both sides of this debate have taken “collusion” to mean whatever minimalist or maximalist interpretation of wrong-doing that best serves their side.

There are two things at issue: whether Trump and his aides coordinated in a way that is criminal, which would be a conspiracy, and whether Trump has coordinated with Russia in a way that would be an abuse of power and/or puts the nation at risk.

Both are legitimate questions. And while Rosenstein says only crimes that are indicted are appropriate to reveal (and he may well be right about that, as a principle), he did ask Mueller to conduct an investigation of that other stuff, and Congress has deferred to Mueller even while that other stuff is squarely within their mandate.

Ideally, this weeks focus on Mueller’s discoveries would be on what the actual evidence showed, which we know to include, at a minimum, the following:

  • Trump pursued a ridiculously lucrative $300 million real estate deal even though the deal would use sanctioned banks, involve a former GRU officer as a broker, and require Putin’s personal involvement at least through July 2016.
  • The Russians chose to alert the campaign that they planned to dump Hillary emails, again packaging it with the promise of a meeting with Putin.
  • After the Russians had offered those emails and at a time when the family was pursuing that $300 million real estate deal, Don Jr took a meeting offering dirt on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” At the end (per the sworn testimony of four people at the meeting) he said his father would revisit Magnitsky sanctions relief if he won. Contrary to the claim made in a statement authored by Trump, there was some effort to follow up on Jr’s assurances after the election.
  • The campaign asked rat-fucker Roger Stone to optimize the WikiLeaks releases and according to Jerome Corsi he had some success doing so.
  • In what Andrew Weissmann called a win-win (presumably meaning it could help Trump’s campaign or lead to a future business gig for him), Manafort provided Konstantin Kilimnik with polling data that got shared with Ukrainian and Russian oligarchs. At the same meeting, he discussed a “peace” plan for Ukraine that would amount to sanctions relief.
  • Trump undercut Obama’s response to the Russian hacks in December 2016, in part because he believed retaliation for the hacks devalued his victory. Either for that reason, to pay off Russia, and/or to pursue his preferred policy, Trump tried to mitigate any sanctions, an attempt that has (with the notable exception of those targeting Oleg Deripaska) been thwarted by Congress.

Instead, however, we’re still arguing about a word — collusion — that was stripped of all meaning years ago, with the result that Mueller’s presumably very measured assessment of what happened cannot serve as the arbiter of truth we need.

Rosenstein may well be the unlikely hero of preserving some semblance of rule of law in this country. But along the way, his choice of language has unfortunately twice fostered the confusion about where the line between crime and misconduct is.

As I disclosed last 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. 

27 replies
  1. George says:

    Many moons ago, I worked in the Office of the Special Prosecutor in NY, created as a result of the intractable levels of corruption in the NY Criminal Justice System as exposed by the Knapp Commision. In the course of our investigations, we frequently let cooperators plead guilty to greatly reduced charges, but only if we were able to make a case on someone higher up in the food chain. For the life of me, I do not understand how OSC let someone as senior as Flynn off so easily with no subsequent indictments of others involved with the Russia fiasco.

    • bmaz says:

      Hi George! Looks like your first comment here. Welcome, and it is a good comment. But having had that experience, you well know that sometimes the proffer that begets the plea does not work out to actual charges and convictions on the higher ups. Some of the “higher ups” are also food in the chain being investigated, and they, too, may take deals etc. Flynn was early, and SCO has repeatedly said quite valuable. And, most people seem to have forgotten, the original SCO remit was arguably more CI than criminal. We have no idea (and may not anytime soon) what exactly occurred with Flynn. I’ll add, people that keep clamoring about what an overly ridiculous deal Flynn got do not know how early pleas, and federal guidelines work. Flynn may actually end up hosed compared to what he and SCO contemplated. And still seem to jointly contemplate. And, I’ll hazard a guess, the Barr principles memo will not shed much, if any, further light on this yet.

    • emptywheel says:

      The Manafort breach hearing made it clear that Mueller was at times giving sweet plea deals for CI information. I’m frankly furious at the deal that Mike Flynn got, but I suspect he offered significant CI information.

      • Bill Smith says:

        I wonder what Flynn really had to offer. Not too much (or enough) it sounded like in the original sentencing hearing.

        • bmaz says:

          There is zero chance that the full scope was displayed at the sentencing hearing. Not how that works.

        • Mainmata says:

          Flynn is still on the hook (or ought to be) for the bizarre Turkish affair, which I realize is not Russia or Trump-related and is a violation of FARA and also, possibly, conspiracy to kidnap a US resident.

    • viget says:

      The only think I can think of is that Flynn was VERY helpful with the CI end of things.

      Perhaps he even named some Russian names and helped roll up a spy network.

      I’m beginning to believe that Flynn’s end was so sensational, that to charge it would have had serious national security implications. Better to have his cooperation to immediately stem the damages, and them leak the story later in dribs and drabs, as warranted.

      I think the House Oversight Cmte report on the Saudi Nuclear reactors is a prime example of that.

    • getouttahere says:

      So many moons ago. Whitman Knapp. A great public servant and a great federal judge. As fair as fair can be. I’m glad to be reminded of him.

      • George says:

        Yes, and Maurice Nadjari, the boss of the Office was a man of legendary integrity. We had smooth sailing while indicting cops, but got into “trouble” when we started indicting Judges and politicians. Nadjari was forced to resign about 4 years after the the Office was created. But we still have Office reunions in NYC and it’s always a treat .

        • getouttahere says:

          It was a bad day for the good guys when the conviction Nadjari obtained against Ross DiLorenzo was reversed by the Appellate Division. DiLorenzo would dispense Il bacio della morte to tenants’ lawyers in Landlord-Tenant Court. Glory daze.

  2. BobCon says:

    What happens if the House subpoenas Mueller, Rosenstein, or any other former federal figure?

    I realize grand jury testimony and top secret info are largely off limits except in a small set of circumstances. And obviously Mueller and Rosenstein can’t supply evidence that is being held by the government. But does Trump have the authority to tell someone who is out of the government not to comply with a subpoena for testimony?

    Schiff says he will subpoena Mueller if necessary, and I assume Mueller won’t talk without a subpoena, but It’s unclear from articles like this how far this would go even if the House takes steps to compel testimony. There seems to be an assumption in things I’ve read that Trump/Barr have authority over DOJ officials, which seems pretty clear, but it’s not clear to me how that applies to former DOJ officials.

  3. George says:

    I’m willing to bet that somewhere along the way, most likely after Barr came on board, Mueller was in one way or another convinced to bring things to a halt. Being a good soldier and an institutionalist, he may have reluctantly gone along .

  4. Rick Ryan says:

    What do we make of the fact that they have (reportedly) taken 9 hours and counting to decide what to reveal to Congress?

    I’d think – admittedly without much of a frame of reference – that if they were only going to describe crimes charged and related evidence, that was largely already essentially completed through the public indictments and would not require such a lengthy review.

    I’m also uncertain how this “indictments only” disclosure policy fits within the mandate that the confidential SC report explain decisions not to prosecute, as well. I understand that officially the report is intended to be entirely confidential, but the AG’s report is supposed to summarize “actions taken” – “actions” need not be indictments, no? And for what it’s worth, Barr’s public comments seem to suggest he’s taking a broad, or at least not narrow, interpretation of that mandate.

  5. viget says:

    Thanks Marcy for this. One of your best yet. Very clear and counters the “no collusion” narrative, a drum the Dems need to be beating very hard right now.

    Two questions, if you can respond:

    1). What do you make of the mysterious Rosneft sale? It’s been postulated that the $300 mil would have been financed by that (not to mention Kushner’s 666 5th Ave).

    2) Could Rosenstein himself have been compromised by Stone and/or Russian interests? Always wondered about why he’s still around and why he wasn’t fired last summer.

  6. George says:

    At least in our Office, when we caught a crooked cop, we would see what he was willing and able to do for us before offering anything favorable. We’d send him out wired to subsequently listen to and analyze the degree of corruption and how high it went. Never offered anything based solely on what someone said they could offer. But that was a long time ago and we were dealing with a totally different set of crimes.

  7. Rusharuse says:

    On the way to the forum . .

    Devin Nunes said something odd:
    “What we really need to see is what was the FBI’s involvement with Fusion GPS? Who were they, who did they know about? What — and I’m sorry I don’t want to gloss over this for the viewers but Fusion GPS was essentially the Hillary Clinton campaign. They were hired by the Clinton campaign, so we need to see all of that, we need the FISA fully disclosed. We need everyone that Mueller talked to, including his interactions with Jerome Corsi, who you just had on the show. Look, I can’t imagine why they would bring Jerome Corsi in to interview with the special counsel. Jerome Corsi is just a long time kind of press guy. You know, I think you guys have known him for a long time. You know, he had every right to call Julian Assange or anybody else that he wants to. Now look, I don’t agree with that, I wouldn’t call Julian Assange. But press people do that all the time. That’s part of our First Amendment rights.”

    Fox and Friends – today

    • bmaz says:

      And, “Rusharuse”, why do you continue to post Fox News horseshit here?

      You are a careful troll, but relentlessly a troll. Get your Fox crap pout of here.

      Over the last 48 hours, I have had enough. That now includes you. Why did you find it “thoughtful” to post Devin Nunes bunk from Fox News?

      It is because you are a troll. A subtle troll sometimes, others just a straight up fucking troll. Did you not have a handy quote from the similar hero for you and Fox, Jim Jordan?

      • Rusharuse says:

        Jim Jordan: “its fun to stay at the YMCA”
        Nunes seems to be saying that Corsi DID speak to Assange – “You know, he had every right to call Julian Assange or anybody else that he wants to. Now look, I don’t agree with that, I wouldn’t call Julian Assange”
        Yet Corsi (CNN 1/27/19) denies that he ever did – “I do agree that Roger wanted me to find out from WikiLeaks. I never had any contact with Julian Assange directly or indirectly. So, my communications with Roger in July and August 2016 about what I thought Assange had were really speculation on my part, connecting the dots.”
        Odd? Is Devo trying to get ahead of something he knows is coming . . Yes? No? Mebe?

    • Bill Smith says:

      Yeah, it seems to be a small world. Look back at the names of the US government people who worked Oleg Deripaska about the involved with the disappearance of Robert Levinson.

      I am not alleging any conspiracy. Just pointing out that the same people have worked this small specialized area for quite some time.

  8. Badger Robert says:

    Mr. Rosenstein protected the investigation so that the information could be collected. It appears that Mueller agreed not to take any steps that would cause a crisis and lead to destruction of the evidence.
    I never seen an explanation of why Comey thought it was OK to disclose anything about a Presidential candidate in the absence of any evidence of a security risk. Advice about remedial steps would have been adequate.
    We might not get the report right away, but there probably are a few staff attorneys that are not longer indispensable that might be able to brief a campaign on what they have to do to protect the 2020 election. Freeing up a few of those attorneys, and starting the disclosure of the evidence are good steps. Since any further indictments are politically out of reach, the cost of continuing on the same pace v the benefit of disclosure has shifted in favor of disclosure.
    Asst AG Rosenstein seems to emphasizing prospective adherence to the FARA requirements. I think Facebook is not out of the woods either.
    In my opinion the trolling on Twitter and youtube is probably more obvious and user sophistication is the best safeguard.
    I don’t see how Comey gets out of this without severe damage.

  9. Bill Smith says:

    Isn’t the linked document above on what Mueller was instructed to investigate not really correct? Depending on what story you read the original remit was found to be legally deficient in regard to the special counsel law. I think it was too general.

    On August 2, 2017, Rosenstein issued a new document. Parts of it became public during the Manafort trial under Ellis when the two sides where arguing if Mueller had the authority to go after Manafort. The government said the redone document was secret. Ellis said ‘so what, turn it over for me to read’. It is more specific than what is at the link above.

    It is embedded in this April 3, 2018 story:

    What’s in the redacted parts?

  10. dwfreeman says:

    Collusion in plain sight. Let us count the ways: 37 indictments, 7 guilty pleas, more than 100 contacts between Trump campaign associates and Russians.

    This is the only criminal investigation where we know the results before we get the final verdict, because we know the motivation of the crime and efforts that were made to hide its intent and then cover it up. Collusion, as it appears in the Trump view, isn’t a watchword for its denial but as code for illusory exoneration. Just as witch-hunt can’t explain away all the Trump associates caught dealing with Russians to do Trump’s bidding, the only crime he is most afraid of being charged with is treason. Because he compromised himself long ago with the Kremlin, which used his dream for a financial vanity project to become Putin’s US asset in chief.

    Those who can’t see that outcome and fail to seek its correction are doomed to its enduring damage.

  11. HCCarey says:

    The summary very distinctly clears the Trump campaign of “collusion/conspiracy,” Unless I’m misreading that. Its very hard to understand how this can be the case given the trump tower meeting and the poll data sharing, but we are going to have to abide by the report’s conclusions

  12. Arabella Mudon says:

    Hey! it seems ridiculous for him to claim that the full results of the Mueller investigation can’t be shared with Congress, as he’s now claiming, given how he has provided unprecedented disclosure to Congress about the investigation already, including the first-ever unsealed probable cause FISA application.
    http: //www. dubaiarabella .com/

    [FYI, URL ‘broken’ with blank spaces to prevent accidental click through by community members. Links shared which are not from well-known organizations and/or do not have any context provided for readers here should not be shared. Welcome to emptywheel, btw. /~Rayne]

  13. Bri2k says:

    Thanks for another great post, Marcy. I especially liked the bit about “collusion”. I get almost apoplectic every time I hear some reporter use it. You’ve highlighted the danger of fuzzy language and I only wish my neighbors read your blog so they’d understand all my cussing at the news. Thanks again for your calm, logical, thoughtful journalism.

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