Like the January 6 Investigation, the Mueller Investigation Was Boosted by Congressional Investigations

Midway through an article on which Glenn Thrush — who as far as I recall never covered the Russian investigation and has not yet covered the January 6 investigation — has the lead byline, the NYT claims that it is unusual for a congressional committee to receive testimony before a grand jury investigation does.

The Justice Department has asked the House committee investigating the Jan. 6 attack for transcripts of interviews it is conducting behind closed doors, including some with associates of former President Donald J. Trump, according to people with knowledge of the situation.

The move is further evidence of the wide-ranging nature of the department’s criminal inquiry into the events leading up to the assault on the Capitol and the role played by Mr. Trump and his allies as they sought to keep him in office after his defeat in the 2020 election.


The Justice Department’s request for transcripts underscores how much ground the House committee has covered, and the unusual nature of a situation where a well-staffed congressional investigation has obtained testimony from key witnesses before a grand jury investigation. [my emphasis]

That’s simply false. This is precisely what happened with the Mueller investigation, and there’s good reason to believe that DOJ made a decision to facilitate doing the same back in July, in part to avoid some evidentiary challenges that Mueller had difficulties with, most notably Executive Privilege challenges.

First, let’s look at how Mueller used the two Congressional investigations.

At the start, he asked witnesses to provide him the same materials they were providing to Congress. I believe that in numerous cases, the process of complying with subpoenas led witnesses to believe such subpoenas were the only way Mueller was obtaining information. Trump Organization, especially, withheld a number of documents from Mueller and Congress, including direct contacts with Russian officials and a Steve Bannon email referencing Russian involvement in the election. By obtaining a warrant for Trump Transition materials held by GSA and the Trump Organization emails of Michael Cohen hosted by Microsoft, Mueller got records the subjects of the investigation were otherwise hiding. Steve Bannon, too, falsely told Mueller he didn’t use his personal accounts for campaign business, only to discover Mueller had obtained those records by the time of his October 2018 interview. Surprising witnesses with documents they had been hiding appears to have been one of the ways Mueller slowly coaxed Bannon and Cohen closer to the truth.

We should assume for key figures in the vicinity of Ali Alexander and John Eastman, the same is happening with the January 6 investigation: the very people who’ve been squealing about complying with subpoenas or call records served on their providers are likely ones DOJ obtained covert warrants for.

Then there are the prosecutions that arose entirely out of Congressional interviews. There were three Mueller prosecutions that arose out of Committee investigations.

Perhaps the most interesting was that of Sam Patten — whose interview materials are here. He had an interview with SSCI on January 5, 2018, where he appears to have lied about using a straw donor to buy Inauguration tickets for Konstantin Kilimnik. By March 20, the FBI attempted their first interview of Patten, after which Patten deleted some emails about Cambridge Analytica. And when Mueller did interview Patten on May 22, they already had the makings of a cooperation deal. After getting Patten to admit to the straw purchase and also to violating FARA — the latter of which he would plead guilty months later, on August 31 — Patten then provided a ton of information about how Kilimnik worked and what he had shared with Patten about his role in the 2016 operation, much of which still remained sealed as part of an ongoing investigation in August 2021. Patten had two more interviews in May then appeared before the grand jury, at which he shared more information about how Kilimnik was trying to monitor the investigation. He had two more interviews before pleading guilty, then at least two more after that.

Not only did Patten share information that likely served as part of a baseline for an understanding about Russia’s use of Ukraine to interfere in US politics and provided investigators with an understanding of what the mirror image to Paul Manafort looked like, but this remained secret from much of the public for three months.

It’s less clear precisely when SSCI shared Cohen’s lies with Mueller. But in the same period, both Mueller and SDNY were developing parallel investigations of him. But by the time Cohen pled guilty in SDNY (also in August 2018), Mueller had the evidence to spend almost three months obtaining information from Cohen as well before he entered into a separate plea agreement with Mueller in which he admitted to the secret communications with the Kremlin that he and Trump lied to hide.

Meanwhile, HPSCI’s much more hapless investigation proved a way to get a limited hangout prosecution of Roger Stone. By May 2018, when Mueller developed evidence showing not just ways that Stone was obstructing his own investigation but also how Stone attempted to craft lies to tell to the Committee — coordinated with Jerome Corsi and reliant on threats to Randy Credico — it provided a way to prosecute Stone while protecting Mueller’s ongoing investigation into whether Stone conspired with Russia.

And by all public appearances at the time, it appeared that Congress was acting while Mueller was not. But that was false (and is probably false now). The entire time during which SSCI and HPSCI were taking steps with Cohen and Stone that would late become really useful to the criminal investigation, Mueller was taking active, albeit covert, steps in his own investigations of the two men (whether he was investigating Patten personally or just Kilimnik is uncertain). Mueller obtained his first warrants against Cohen and Stone in July and August, respectively. But no one knew that until the following spring. That is, Cohen and Stone and everyone else focused on Congress while Mueller got to investigate covertly for another nine months.

We should assume the same kind of thing is happening here. All the more so given the really delicate privilege issues raised by this investigation, including Executive, Attorney-Client, and Speech and Debate. When all is said and done, I believe we will learn that Merrick Garland set things up in July such that the January 6 Committee could go pursue Trump documents at the Archives as a co-equal branch of government bolstered by Biden waivers that don’t require any visibility into DOJ’s investigation. Privilege reviews covering Rudy Giuliani, Sidney Powell, and John Eastman’s communications are also being done. That is, this time around, DOJ seems to have solved a problem that Mueller struggled with. And they did so with the unsolicited help of the January 6 Committee.

Even those of us who’ve been covering DOJ’s January 6 prosecution day-to-day (unlike Thrush) have no way of saying what DOJ has been doing covertly in the last year — though it is public that they’ve been investigating Alex Jones, the purported new thrust of this investigation, since August.

What we know from recent history, however, is that DOJ’s use of Congress’ work in no way suggests DOJ hasn’t been doing its own.

27 replies
  1. Rugger9 says:

    We know that the original start date of public hearings was April, now it’s June 6 in prime time. Given your narrative here (well researched as always) is it possible that Garland is the one that quietly asked for a delay if possible to keep digging? Of course the seditionists in the own way provided perfect cover for this speculated request by being themselves.

    I also wonder if the reports are true that neither Individual-1 or Pence will be called by the J6SC. Pence was the direct target who spoke directly with the WH. Individual-1 would probably go for the publicity if asked but then he’d have to deal with pesky questions from people ‘beneath’ him. Is it possible that Garland would actually go after Pence or Individual-1 and needs his options kept open? Remember it was his Congressional testimony that got Ollie North out of his convictions in Iran Contra.

    • emptywheel says:

      There’s not that level of cooperation and the delay into June is self-evidently bc they’re still investigating.

        • Phil A says:

          Or they are waiting for DOJ to decide whether Congress has subpoena power against high-level Republicans or not.

          • Glen Dudek says:

            IANAL, but it is not DOJs job to determine the subpoena power of Congress. Congress does that, but it can be challenged via the Judicial Branch.

    • Silly but True says:

      Iran-Contra is the legitimate model.

      A key point regarding North’s conviction being overturned is that it was not generally because of his Use Immunity grant by Congress under 18 U.S.C. § 6002 for his testimony to Congress.

      Rather, what specifically overturned North’s conviction was sloppiness by Walsh in not completely any reasonable Kastigar proceeding about that immunity.

      In effect, Walsh so co-mingled immunized evidence with fair game evidence that it was impermissibly married with the government’s case and the Appeals court then blew everything up.

      The cautionary tale is then this: Congress can still immunize criminals it needs testimony from, and DoJ is still very much able to indict, try and gain convictions against them, but it must be very _VERY_ meticulous in ensuring not one shred of immunized evidence forms any basis for the criminal case.

    • Manwen says:

      The Oliver North case was unique. Congress immunized North in order to provide public testimony. The Special Prosecutor had to prove that the prosecution evidence produced against the defendant could not be traced to Congressional testimony. North won on appeal. The man sold out his country, stole weapons from Department of Defense, sold them in violation of sanctions, traded the weapons hoping to obtain hostages held by Hezbollah n violation of Reagan policy, and sent the funds to the Contras in violation of the statutory ban on such assistance {the Boland Amendment). After winning his appeal, he became a Fox News star and quite a celebrity. (It also always rankled me that, though guilty, he won the type of appeal that Reagan campaigned against–arguing that guilty people should not escape justice because police and prosecutors did not respect procedural rights.) One can see so many origin stories in this little scenario. (Not to mention the crack cocaine connections and the disparate sentencing guidelines with racially discriminatory outcomes that followed.) The past remains present.

      • Random Commenter says:

        And in an interesting twist he ended up being the catalyst for the implosion of the NRA. So I guess he has at least one redeeming quality.

  2. Michael K says:

    This makes sense, but what about the timing?
    NY Times et. al. report that this request from DOJ was made in a letter dated April 20th.
    Assuming that date is accurate, why then?
    Doesn’t this imply that DOJ did not request/receive transcripts prior to April 20th? If so, better late than never, but is there any reason why the process of reviewing ~1,000 transcripts couldn’t have started months earlier?

    • Al Ostello says:

      In our “I want it now” 2022 culture it is important that we recognize a speedy investigation would also be a sloppy one.

      Be mindful of Watergate (meticulous investigations) timeline:
      Jun 1972: Watergate break in
      July 1973: Public hearings
Mar 1974: Dozens of Indictments
      Jan 1975: Dozens of convictions

      Also note that the committee has a que of drips (thankfully) that they let out there to try and prime those who work too much (or are addicted to xbox or corporate food, or apps, or drugs ect) to see that there are larger than Watergate hearings about to start up.

      • Michael K says:

        How would DOJ simply reviewing transcripts more promptly make their investigation more sloppy? Why was April 20, 2022 better than March ’22 or December ’21? If waiting longer is better & less “sloppy”, then why was April ’22 not premature? Would the investigation be less “sloppy” if DOJ ignored all the transcripts until after Nov ’22?

        The Watergate conspiracy was broken open by John Dean’s cooperation not just with the Senate but also with federal prosecutors in March 1973, plus the subsequent revelation that tapes existed. Was it too speedy and “sloppy” for federal prosecutors to hear Dean’s account promptly in March ’73? Do you believe DOJ should have ignored Dean for some additional period of time?

      • Rayne says:

        Scale matters here as much as thoroughness. This is the largest criminal investigation in US history based on the number of perps; combined with the amount of electronic evidence to be sifted through this investigation makes Watergate look like a pup.

    • Savage Librarian says:

      Ivanka and Jared Kushner (as well as Alexandra Preate) had testified to the J6 committee by the first week in April. So, maybe DOJ was waiting for that. Don Jr. didn’t do so until May. But he didn’t have a position in the WH.

  3. P J Evans says:

    The committee is, or should be by now, well aware that nothing that Individual-1 says can be relied on. He’s lied while under oath in the past, and we’ve all heard about his lawyers working in pairs so as to have a witness.

    • Ginevra diBenci says:

      Politico (first, then others) has been shopping around this story about “conflict” between the two parties. For that reason alone, I have doubts about it.

    • Belyn says:

      Could part of the not ready to share be a need to keep matters close to vest?
      Yes there are lots of staff knowing what’s going on with the committee, but how many eyes would be on this stuff at Justice and are there some that may not be so trustworthy. I really have no idea who / how many would have access to the transcripts but just wondering if that might be at work. The committee would not want to say we can’t trust DOJ. There are lots of career holdovers, but I can say how many and if there might be snakes in the grass. Just fishing here. Another possibility is that some of the transcripts might need some sort of redaction and that takes time. I’m likely just blowing smoke.

  4. GonzoDon says:

    … and we all saw how stunningly effective the Mueller investigation was at holding our highest echelon of political operators in the United States responsible for their corrupt political actions.

      • bmaz says:

        The Mueller Report was too tarnished and politicized to try cases on. I would not have either.

      • GonzoDon says:


        Donald Trump is still walking around a free man, and is ready to run again for president in 2024.
        Steve Bannon is still walking around a free man.
        Rudolph Giuliani is still walking around a free man.
        Roger Stone is still walking around a free man.
        Clarence Thomas is still refusing to recuse himself from cases in which he clearly has a conflict of interest due to his wife’s professional and financial ties.
        Everyone at Fox News who intentionally and repeatedly disseminated bald-faced lies about Dominion Voting Systems on national television is still walking around free men & women.

        If I’d committed a small fraction of the illegal acts these people committed (like openly cheating on my taxes, trying to pressure a state into overthrowing the results of an election, collecting millions of dollars in donor funds under false pretenses, ignoring a Congressional subpeona), I would have been put behind bars long ago. And we all know why: because I’m not outrageously rich, or politically connected, or able to hire expensive legal teams to tie up the courts in knots for months and years on end while I sail through life unmolested.

        So yes, please, illuminate me on how our legal system “works”.

        Also, please, whether you think that system will start “working” effectively before the Republican scheme to rig our national election outcome in November 2024 is securely locked into place, and finally comes to fruition.

        • bmaz says:

          No, relatively speaking, you probably would not have at all. And, yeah, the system works a hell of a lot better than the hot button stuff you focus on. And most of the ones you mention are FAR harder to prosecute and convict than just blurting stuff out on the internet.

          Try going to some of your local state and federal courts. The things you talk about are about .0001% of the justice system. All federal crime is a mere drop in the bucket compared to the percentage of state and local crime. That is without talking about civil and administrative law. So, when you blow out a few names and say the system doesn’t work, you prove PJ Evans correct, you really don’t know much about it overall. Try going to actual courts, watch and get back to us.

        • Rayne says:

          Look, you’ve posted 5 comments at this site to date and each of them has consisted of complaints about the U.S. government particularly its justice system. We get it. You’re not happy.

          You’ve also been told we don’t talk people off the ledge here. Find some way to make a contribution to discussion rather than complain to folks who have spent a lot of time actually reading the posts, researching the topics, and discussing them and not merely dumping their feelings.

          If you can’t be more constructive here, do something more constructive offline to preserve and defend democracy — like helping a campaign or helping voters register. One of the biggest single reasons we are in this mess is that not enough pro-democracy Americans do more than show up to vote or bitch in blog forums.

          • GonzoDon says:

            OK. Point taken. My apologies if I am being too negative. I’ll refrain from posting.

            I just find it difficult to put great faith in a “justice system” that is highly effective at incarcerating its own citizens (highest rate of any country in the world — El Salvador, Rwanda and Russia included) … but which seems maddeningly ineffective at holding people in positions of power responsible for their blatant corruption.

            Rest assured I am very engaged supporting organizations and on-the-ground efforts to register and educate voters, lower barriers to voting, and get out the vote as elections approach. Also, I periodically “bitch” (as you put it) in the form of old-fashioned, impassioned snail-mail letters to elected individuals .. even, most recently, to the Chief Justice of the US Supreme Court. (Yes, I’m THAT angry about the whole Clarence & Ginni Thomas mess.)

            Yours is a superb website for tracking & analyzing the details of what is going on (or may be going on), overtly and behind-the-scenes, as the wheels of American justice slowly churn away. Keep up the good work. I will try to stay out of your way.

            [Welcome back to emptywheel. Please use the same username each and every time you comment so that community members get to know you. You used “Gon” as your username on this comment; it has been reverted to “GonzoDon” which you used for your previous comments. Thanks. /~Rayne]

            • bmaz says:

              That is the wrong reaction, stick around. It is just frustrating when people roll in and blather that the whole system is shit, because much of it works fine. I am in criminal courtrooms every day, and I have news for you, most every person adjudicated guilty really is guilty. Sentencing ranges are set by legislatures and congress, not “the justice system”. This is why I always recommend that people ranting about “the justice system” go visit some real and actually learn something about it.

  5. sand says:

    Thanks so much. There is far too much good stuff here for me to keep up with these days. I have not commented in quite a while. Opining on two things briefly.

    First, things that sound like crime (IUPG, of course):

    – “Mueller got records the subjects of the investigation were otherwise hiding.”
    – “Steve Bannon, too, falsely told Mueller he didn’t use his personal accounts for campaign business” – I recall the pardon for Bannon’s border-wall grift, but I don’t recall a pardon for lying to the feds.

    Second (OT), Yesterday, NC voters rejected Cawthorn as “too uncultured.” This is the WWE rejecting a heel for being too over-the-top. I really came here just to say that. I am praying to the Flying Spaghetti Monster that MAGA has officially jumped the shark.

    Peace :)

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