The Scope and Results of the Mueller Report

There’s a Twitter account, TrumpHop, that tweets out Donald Trump’s tweets from years earlier, which is a really disorienting way to remind yourself how crazy he’s been since he’s been on Twitter. This morning, it recalled that two years ago today, Trump was inventing excuses for having shared highly classified Israeli intelligence at the same meeting where he boasted to Sergei Lavrov that he fired Jim Comey a week earlier because of the Russian investigation.

Two years ago, Rod Rosenstein — the same guy who stood, mostly stoically, as a prop for Bill Barr’s deceitful press conference spinning the Mueller Report one last time before releasing it — was in a panic, trying to decide what to do about a President who had fired the FBI Director to end an investigation into what might be real counterintelligence compromise on his part by a hostile foreign country and then went on to share intelligence with that same hostile foreign country. Tomorrow is the two year anniversary of Mueller’s appointment.

As I noted days after the Mueller Report was released, it is utterly silent on that sharing of information and two of the other most alarming incidents between Trump and Russia (though that may be for sound constitutional, rather than scope reasons) — Trump’s conversation with Putin about the subject of his own June 9 false statement even as he was drafting that statement, and the Helsinki meeting. That said, it cannot be true that Mueller didn’t consider those counterintelligence issues, because his treatment of Mike Flynn would have been far different if he didn’t have good reason to be sure — even if he deliberately obscures the reasons why he’s sure in the report — that Flynn, at the time under active counterintelligence investigation for his suspect ties to Russia, wasn’t entirely freelancing when he undermined US policy to offer sanctions considerations to Russia on December 29, 2016.

Nevertheless, a rising cry of people are suggesting that because we weren’t told the results of the counterintelligence investigation (whether it included the President or, because of constitutional reasons, did not), Mueller did not conduct a counterintelligence investigation. He (and, especially, FBI Agents working alongside him) did. Here’s what the report says, specifically, about the FBI writing up CI and Foreign Intelligence reports to share with the rest of FBI.

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.

Mueller didn’t report on it, as he states explicitly, because that’s outside the scope of what he was required and permitted to report under the regulations governing his appointment, which call for a prosecutions and declinations report.

That’s just one of the misconceptions of the scope, intent, and results of the Mueller Report that persists (and not just among the denialist crowd), almost a month after its release.

The Mueller Report does not purport to tell us what happened — that would be a violation of the regulations establishing the Special Counsel. It only describes the prosecutorial and declination decisions. The scope of those decisions includes:

  • Who criminally conspired in two Russian election interference efforts (just one American was charged, but he did not know he was helping Russians troll the US)
  • Whether Trump’s associates were agents of a foreign power in violation of FARA or 18 USC 951, including whether they were agents of Ukraine (as Paul Manafort and Rick Gates were before the election), Israel (as lots of evidence suggested George Papadopoulos might have been), Turkey (as Mike Flynn admitted he had been during and for a short while after the election), as well as Russia
  • Whether Trump’s associates conspired with Russia in some way; Mueller’s review included a quid pro quo, but his prosecutorial decisions did not include things unrelated to Russia’s election interference (which might, for example, include pure graft, including during the Transition period or related to the inauguration)
  • Which of Trump’s associates got charged with lying (Flynn, Papadopoulos, Michael Cohen, Roger Stone), were ruled by a judge to have lied (Paul Manafort), and which lied but were not charged (at least three others, including KT McFarland) in an effort to obstruct the investigation
  • Whether accepting a meeting offering dirt as part of the Russian government’s assistance to Trump or optimizing WikiLeaks’ release of emails stolen by Russia to help Trump’s campaign amount to accepting illegal donations from foreigners
  • Whether Trump’s numerous efforts to undermine the investigation amount to obstruction

Two facts necessarily follow from Mueller’s limit in his report to prosecutorial decisions rather than describing what happened, both of which are explained on page 2 of the report (though even the Attorney General, to say nothing of the denialist crowd, appears not to have read that far). First, Mueller did not weigh whether Trump “colluded” with Russia, because that’s not a crime that could be prosecuted or declined.

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]” was used in communications with the Acting Attorney General confirming certain aspects of the investigation’s scope and that the term has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law.

Because “collusion” is not a crime, Mueller could not weigh in one way or another without being in violation of the regulations underlying his appointment. Mind you, Bill Barr could have changed these reporting requirements if he wanted and asked Mueller to comment on “collusion.” He did not.

In addition, Mueller’s measure was always whether his investigation “established” one or another crime. But stating that he did not establish a crime is not the same as saying there was no evidence of that crime.

A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

Mueller describes in very general way that he didn’t get all the information he’d have liked to weigh whether or not conspiracy was committed.

The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation. Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity. The Office limited its pursuit of other witnesses and information–such as information known to attorneys or individuals claiming to be members of the media–in light of internal Department of Justice policies. See, e.g. , Justice Manual §§ 9-13.400, 13.410. Some of the information obtained via court process, moreover, was presumptively covered by legal privilege and was screened from investigators by a filter (or “taint”) team. Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above. And the Office faced practical limits on its ability to access relevant evidence as well-numerous witnesses and subjects lived abroad, and documents were held outside the United States.

Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated–including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.

More specifically, we know this language covers at least the following limits on the investigation:

  • Encryption or evidence destruction prevented Mueller from clarifying details of the handoff to WikiLeaks, Gates’ sharing (on Manafort’s orders) of polling data with Russia, Manafort’s communications with various people, and Erik Prince and Steve Bannon’s communications about the Seychelles meeting with Kirill Dmitriev
  • Mueller did not pursue the role of Trump and other associates’ lawyers’ substantial, known role in obstruction
  • Mueller likely did not pursue an interview with Julian Assange (and other media figures), because that would violate US Attorney Handbook warnings against compelling the sharing of journalism work product to investigate a crime related to that work product
  • Some foreigners avoided cooperating with the investigation by staying out of the country; Emin Agalarov canceled an entire US tour to avoid testifying about what kind of dirt he offered Don Jr
  • Both Donald Trumps refused to be interviewed
  • President Trump refused to answer all questions pertaining to his actions after inauguration, all but one question about the Transition, and all questions about sanctions; his other answers were largely contemptuous and in a number of cases conflict with his own public statements or the testimony of his associates

Finally a more subtle point about the results, which will set up my next post. Mueller clearly states that he did not establish a conspiracy between Trump’s people and the Russian government on election interference. By definition, that excludes whatever coordination Roger Stone had with WikiLeaks (and even with the extensive redactions, it’s clear Mueller had real First Amendment concerns with charging that coordination). But whereas Mueller said that the contacts between Trump’s associates and Russians did not amount to a crime, he suggested that the two campaign finance issues he explored — the June 9 meeting and the release of stolen emails — were crimes but not ones he could sustain a conviction for.

The Office similarly determined that the contacts between Campaign officials and Russia-linked individuals either did not involve the commission of a federal crime or, in the case of campaign-finance offenses, that our evidence was not sufficient to obtain and sustain a criminal conviction.

The gaps in evidence that Mueller was able to collect strongly impact this last judgment: as he laid out, he needed to know what Don Jr understood when he accepted the June 9 meeting, and without interviewing either Emin Agalarov and/or Jr, he couldn’t get at Jr’s understanding of the dirt offered.

As I’ve noted repeatedly, it is absolutely false to claim –as Attorney General Barr did — that Mueller’s report says there was no underlying crime to cover up with Trump’s obstruction. Mueller specifically mentions SDNY’s prosecution of Trump’s hush payments to Stormy Daniels and Karen McDougal, a crime which was charged, and which was one of the explicit purposes behind the raid on Cohen’s home and office. And as such, that crime is pertinent to the pardon dangle for Cohen.

In January 2018, the media reported that Cohen had arranged a $130,000 payment during the campaign to prevent a woman from publicly discussing an alleged sexual encounter she had with the President before he ran for office.1007 This Office did not investigate Cohen’s campaign period payments to women. 1008 However, those events, as described here, are potentially relevant to the President’s and his personal counsel’s interactions with Cohen as a witness who later began to cooperate with the government.

But with regards to the Russian-related campaign finance investigation, Mueller describes that Trump may have believed those would be criminal.

[T]he evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.

The distinction about whether a crime was committed versus whether it was charged may be subtle. But it is an important one for the obstruction investigation. And as I’ll show, that may have interesting repercussions going forward.

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. 

43 replies
  1. pjb says:

    I strongly suspect this is a stupid question, but I’ll ask anyway.

    Given what MW wrote about Mueller’s inability to learn Don Jr.’s mental state regarding the “dirt” proffered by Agalarov, it seems pretty likely to me that behind the redaction is that Don Jr either asserted his 5th A rights in response to Mueller subpoena or indicated he would if subpoenaed. If Don Jr. actually testifies before Burr’s Committee, does he then waive his 5th Amendment rights vis-a-vis any further criminal probe? If so, does it seem likely then that Don Jr. will have to assert his 5th A rights to the Senate or is he somehow in the clear on this issue criminally?

    • P J Evans says:

      Given how friendly to Tr*mp the Senate is, they’re likely going to ask extremely softball questions that don’t go there.

      • pjb says:

        There are Dems on that Committee. Presumably someone will ask him about his communications with Agalarov leading up to and including the June 9 meeting.

    • emptywheel says:

      Not dumb at all. I don’t think he waives his 5A rights with DOJ, but it is worth noting (as I have) that he’s willing to undergo an interview by people who don’t have all the evidence, but not with people who do.

      • bmaz says:

        Not so sure about that, think there could be a waiver argument. It might well have to be litigated, but would certainly be an argument given not just this instance, but the initial one.

  2. Ruthie says:

    Key quote from the report:

    “The investigation did not always yield admissible information or testimony”

    As has been pointed out previously, the word “admissible” does a lot of work here. And as Marcy points out, the distinction which so many people ignore, whether willfully or inadvertently, as to whether a crime was committed versus charged is all the more glaring in light of it.

    • emptywheel says:

      Yes. And virtually ever reference to “available evidence” or “evidence available” is something you get the sense Mueller believes to be true, even knows where the evidence to prove it would be, but cannot get to the evidence. Those include: Trump directing Cohen’s false statement, the foreign agent status of Trump flunkies (this may be a specific reference to Carer Page), a quid pro quo, and the August 2 meeting.

      • MattyG says:

        Yes to this. Vol I does read as if incriminating evidence was fire-walled for reasons Mueller is not free to articulate in the report (IC perhaps), or excluded ‘by rule’ by dint of the SCO’s remit – whether such considerations are fully justifiable or not.

  3. Tom says:

    One of the unintended consequences of having someone of the personal and professional reputation and stature of Robert Mueller head the SCO’s investigation into Russia’s sabotage of the 2016 Presidential election is that Trump’s supporters are touting the Mueller Report as the final and definitive word on the subject. Hence, the President’s description of it as “the Bible” the other day as well as McConnell’s verdict that it is “Case closed”. As this post demonstrates, however, we are still missing many pieces of the puzzle and the whole story remains to be told. All the more important for Congress to be permitted to carry on its oversight and investigative role. The President’s obstructive tactics are continuing and becoming ever more blatant and damaging to the rule of law.

    • Savage Librarian says:

      This may interest you:
      Ronald Goldfarb notes how the contempt of Congress cases might play out in court. Merrick Garland, Neil Gorsuch (whose mother was charged with contempt when she headed the EPA) and Brett Kavanaugh (who owes his job to DT) could each play interesting roles. The two “Supremes” may be asked to recuse, but the rules allow them to decide if they should.

    • Jockobadger says:

      Just following up on your comment Tom wrt “someone of the personal and professional reputation and stature of Robert Mueller” – you’re right about the unintended consequences. And, I write this only partly in jest, just this a.m. I was wishing how nice it would’ve been if Bob M. was just a tiny bit more of a rogue. I understand that’s not what one wants in a SC, but damn I wish he would’ve found a slightly shady way to stick it to the Donald.

      dons bmaz-proof tinfoil helmet

      Alright, let me have it. I deserve it. Can’t help myself. Damn it man, I’m a geologist, not a lawyer.

      • Tom says:

        I know what you mean, Jockobadger, but in a way Mueller’s report is all the more damning because it’s so obvious he was making every effort to be scrupulously fair to Trump & Co. yet their shabby and squalid behavior still stood revealed.

        • viget says:

          See that’s what really bothers me. I mean DOJ has to be so by the book with these things, and the people f—ing over our country can just lie, cheat and steal with abandon and they aren’t held accountable. Oh and accuse the investigators of whatever it is they themselves are doing.

          The American public deep down knows this too, whether R or D, and they just assume that those in power are doing it. It’s really having a corrosive effect on the rule of law. Also, why would anyone want to go into public service… that’s for chumps who believe in the rule of law.

          • RWood says:

            With regard to Mueller, I understand your comment. I too wish he had been more…blunt.

            Integrity is Mueller’s strength. I keep reminding myself of that. He values it in himself above all else, and it shows in the work he has done.

            Now Barr is openly questioning that integrity, and in a blunt way. I think anyone who dares to do that is setting themselves up for disappointment. I think if Meuller’s work were to be questioned in a professional way he would respond in kind, but Barr has made it personal.

            I think this is something that Mueller will view as crossing the line. I expect him to say so when he testifies to congress. Bluntly.

  4. General Sternwood says:

    This post underscores just how restricted the Mueller investigation was. In a healthy situation it would have simply been a first step that would have triggered followup investigation, legislation and prosecution. The White House has blocked that immune response, and right now it is clear that Congress lacks the “executive function” to adapt in a robust and effective way. My worry is that it will take something like a horribly misguided crusade against Iran to reset the de facto narrative that the president has not committed high crimes and misdemeanors, the position to which the Democrats appear to be wedded (see Walter Dellinger’s op-ed in the Post about this). That the administration placed unacceptable restrictions on the Mueller probe is a simple message that both candidates and congressional leadership could deliver.

  5. OldTulsaDude says:

    The very limitations placed on the report of the SCO make it imperative for Nadler and the HJC to hear Mueller’s testimony.

    • BobCon says:

      I’m very curious what he can reveal to Congress which he felt he wasn’t authorized to cover in his report and other materials.

      Obviously specific classified info is a tough ask, but would he confirm the existence of a counterintelligence investigation? Give a sense of the scope? Name people and topics?

      I realize there are furher restrictions he might feel bound to honor, such as not affecting ongoing investigations. I wonder, though, whether he might feel free to comment on things Barr has essentially blocked from investigation.

  6. jaango says:

    Historians, will, in the future, be worth their weight in gold.

    Of course, I am still awaiting via the Fourth Estate, its take of an in-depth gander at the FISA Court and where Mueller Report sought and received their various warrants, and further, answering the Question of “What was achieved?” Thus, specificity of the warrants being made readily available to the general public.

    Thus, Hope is still on the Decision-Making Table.

  7. Bay State Librul says:

    The Rap Sheet on Bob

    Shorter Mueller,

    “What I didn’t see coming was the emotional response, the weeping and gnashing of teeth, and the duplicity of Barr and Rosenstein…”
    Mueller writes a gripping, well-written portrait of obstruction in real time, but he leaves the ending with a still-unanswered set of crimes to rival the Mafia.
    Fuck! Fuck Fuck!
    I’m sorry, he has failed Poker 101 and for the past 30 days, he has lost the mo-jo.
    We needed an heroic act, and he came up with a pair of deuces.

    • MattyG says:

      We need Congress to get their mitts on the “information and conversations” deemed criminal in nature but inadmissible by supposed constitutional limitations, debatable DOJ policy – or whatever other considerations Mueler felt it improper to articulate fully in his report and Barr is glad to remain silent on. Get the evidence that made Mueller all squimish and speaking in riddles in front of pople willing to call a spade a spade.

  8. North Jersey John says:

    Even in the context of a discussion about Trump’s intent behind firing Comey (bottom page 288 of AP document cloud),that nod to unexplored(?) criminality or personal jeopardy is remarkable “the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns”.

    Wait, what? A thorough FBI investigation would do more to uncover other campaign related crimes? Mueller’s team seems oh so very careful in language. Not could uncover more. Would uncover more. Oh, please, do tell us more.

    • K-spin says:

      Yes I flagged that sentence too. It seems that BB’s narrative re: ‘no obstruction because no underlying crime (of conspiracy)’ wilfully ignores the potential that efforts to obstruct may have been driven by a fear that the SCO would unearth other crimes.

  9. AndTheSlithyToves says:

    Thanks, Marcy for your heroic efforts! As the Gaslit Nation gals have warned, this is serious. We have a Transnational Crime Syndicate running the country and our own malignant narcissist at the head of it. Doesn’t sound like a happy ending is in the offing.

  10. Ancient Mike says:

    Okay, Mueller’s counterintelligence findings, if any, weren’t to be part of the prosecution/declination report we call “the Mueller Report.” Fair enough, but should we not expect said findings to be reported, if not to the public, then at least to the House and Senate Intelligence Committees? And might they not then provide additional support for Trump’s impeachment? If they established the elusive quid pro quo, say, or otherwise showed Trump to be fatally compromised, if not a full-on Russian asset, could not any such assessment, even if otherwise classified or otherwise confidential, be properly disclosed to the House Judiciary Committee and thus ultimately, in the course of an impeachment inquiry, to the public?

    Am I missing something here?

    • Jockobadger says:

      Ancient – Your questions are excellent ones, but I think what you may be missing is that there is a distinct lack of political will to do what we all know is right. Actually, there is seeming political timidity on the part of the Dems, and flat-out, determined political will to stonewall, whitewash, and if necessary, destroy the republic on the part of the R’s.

      As noted upthread, I hope it doesn’t take a new bloodbath in the ME to make the D’s (and R’s in the Senate) grow a spine. JFC.

      • Maimata says:

        So, if I hear you correctly, the blatantly traitorous behavior of Trump vis-a-vis the Russians may not ever see the light of day or at least not before the 2020 elections because of the likely colluson with the GOP because of the supposed awesome power of Trump (who has the consistently lowest ratings of any president since the advent of polling and the timidity of the Democrats for the same reason? And both parties base their decisions on Clinton’s impeachment whose polling was completely unchanged before and after impeachment?

        • bmaz says:

          There is no such thing as “collusion”. And “traitorous” contemplates treason, which is not applicable because the US is not at war with any pertinent nation.

          • P J Evans says:

            It’s the behavior of someone who’s helping a country that is Not Our Friend, and if that isn’t treason under current law, maybe the law should be updated.

            • bmaz says:

              No, the law does not need to be updated whatsoever. To do so would be the same as the constant hue and cry to expand the definition of “terrorism”. There are plenty of crimes in the US criminal code. Expanding grab bag feel good things like treason and terrorism is simply a lazy path to removing rights and protections and empowering prosecutors and cops.

    • fb1848 says:

      Ancient Mike, you hit on the meta-issue that has been bugging me since the release of the Report. We still don’t know why Trump has been so obsequious to Putin or why he humiliated our country in that press conference in Helsinki. Was there a quid pro quo? Is he compromised in some other way?

      I understand from press reporting, from the Report itself, and from this clarifying post by emptywheel, that both Mueller and the FBI conducted a CI investigation. What did they find? Where are the results? Adam Schiff has said that he and other congressional leaders have not been able to obtain a briefing on the status of the CI investigation (see Philip Bump’s May 15 article). This strikes me as the most outrageous of all the outrageous obstructions and coverups by this administration and I don’t understand why the press and the Democrats are not treating it as Issue #1.

      And that’s the congressional leadership that is legally entitled to this information. I would respectfully suggest that even your excellent comment is too obliging about the need for secrecy. What “sources and methods” can possibly be so valuable that we should allow this country to reelect a compromised president in order to preserve them? Yes, make every possible effort to protect the safety of human sources, but if the public which elects its government is not fully informed of the loyalties of its highest official, we really no longer have a democracy.

  11. Seouljer says:

    I have an off topic question. If it’s not ok post here just delete.

    I saw this posted online:

    “Senate rules also permit a measure to be placed directly on the calendar when introduced or received from the House. This process permits senators to bypass referral to a committee they believe unsympathetic. Alternatively, if a committee fails to report a measure, a new measure with exactly the same provisions may be introduced and placed directly on the calendar.”

    Does that mean the House can, say put the Election Security Bill on the senates calendar if they wanted to?


  12. Andrew Long says:

    Two things:
    1. “Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity.”

    If Junior was one, who were the others?

    2. “[T]he evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally…”
    Did that thorough FBI investigation occur? Is that what the Report is referring to when it mentions the FBI personnel embedded in the SCO, and the SCO’s uncovering of such information, which was not allowed to be disclosed in the Report? And is such an FBI investigation still open?

  13. Bay State Librul says:

    Marcy writes on Mueller’s scope:

    •Whether Trump’s numerous efforts to undermine the investigation amount to obstruction

    Can someone tell me why he didn’t say yes to this.
    800 criminal prosecutors, and anybody with eyes and ears say “yes”
    So, why did he whiff?

  14. klynn says:

    “…because of the scope…”
    “…misconceptions of the scope…”
    “…outside the scope…”
    Two years ago Rod Rosenstein was in such a panic that he managed to find an interesting and limiting scope for an investigation on a national concern he was panicking over. Was he really panicking? Because man…that scope really creates a convenient narrative for Rod.

    • Bay State Librul says:

      Not to be funny, but I’ve had six cystoscopies in the past two years.

      My doc knew what do to with the scope, and I’m certain Doctor Mueller does too.

      • P J Evans says:

        I’ve met another kind of medical scope, one which is used for looking at stuff in places the sun doesn’t reach. Not so uncomfortable for the victim patient, either.

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