Saturday, March 23, 2019

What Does The Mueller Report Actually Say?

Well, that should be easy, right? The report will summarize the investigation. But here's the tricky question: Exactly what was Mueller's investigation all about? If we can't answer that question, we're totally in the dark as to what to expect.

This is something I examined in some detail in Mueller's Enterprise Witchhunt. According to Rod Rosenstein--who should know, since he appointed Mueller and set the scope for Mueller's investigation--the Mueller investigation was no more than a continuation of Crossfire Hurricane (CH). Don't believe me? Here are Rosenstein's exact words:

The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump; ...

What are we to make of this? I make out three points of interest:

  • First, Mueller is not starting up a new investigation--he's taking over an already existing investigation, the same one that was confirmed by Comey two months earlier. 
  • Second, and very importantly, Mueller's investigation is not authorized as a general investigation into Russian "active measures" (i.e., interference, meddling) in the 2016 campaign but instead is rather narrowly focused on "coordination between people associated with the Trump campaign and the Russians."
  • Third, unlike what probably most people think, this investigation is not necessarily about Donald J. Trump, President of the United States of America.

Don't believe me on that last point? Well then, would you believe James Comey? After all, he should know. He was Director of the FBI at the time and he told President Trump no less than three times that he (Trump) was not under investigation. I for one believe Comey--at least technically. Of course I believe the Russia Hoax was all about "getting" Trump. Ousting him. But while I wouldn't buy a used car from Comey, I do believe he's far too smart and careful to blunder into outright perjury quite so easily. Here's how I summarized Comey's testimony, under oath (link above), regarding the FBI investigation that was initiated in July, 2016:

Back on March 20, 2017, then FBI Director Comey testified before HPSCI regarding Russian "active measures" during the 2016 election. Chairman Nunes characterized the committee's work as concerned with Russian "active measures" during the 2016 presidential election, but the Democrats stated that it was all about "collusion" between the Trump campaign and "the Russians." In his testimony Comey confirmed for the committee that the FBI's investigation, which we now know as Crossfire Hurricane and which began in late July, 2016, was concerned with "any coordination between people associated with the Trump campaign and the Russians."

In his testimony on December 7, 2018, which included testy exchanges with Republican Congressmen, including Trey Gowdy, Comey hewed closely to his previous testimony. Specifically,

  • he categorically denied that the investigation was an investigation of "the Trump campaign or Donald Trump himself;" 
  • he confirmed, however, that the investigation was of "four Americans" who "did not include the candidate;" 

All this is made explicit in a key document: The HPSCI Report on Russian Active Measures, dated March 22, 2018. There we read:

The Committee's investigation also reviewed the opening, in summer 2016, of a FBI enterprise counterintelligence investigation into [REDACTED] Trump campaign associates: [REDACTED] Carter Page, [REDACTED] Because of "the sensitivity of the matter," the FBI did not notify congressional leadership about this investigation during the FBl's regular counterintelligence briefings. Three of [REDACTED] original subjects of the FBI investigation have been charged with crimes and the Committee's review of these cases covers the period prior to the appointment of Special Counsel in May 2017.

Finally we learn exactly what kind of investigation Crossfire Hurricane was: it was an "enterprise counterintelligence investigation into ... Trump campaign associates." One of those associates was Carter Page and the other three are easily guessed from the context

If you want to learn all about "enterprise" investigations, follow the link above--basically, an "enterprise" is any group or organization. In Crossfire Hurricane, it's a group of "four Americans" who were alleged to be acting as their own organization within another organization (the Trump campaign) to somehow "coordinate" with evil Russians. 

That's what Comey said Crossfire Hurricane was started up to investigate, and as of May, 2017, immediately before his firing and the appointment of Mueller, he steadfastly maintained that Trump was not a subject. And that means that, if Rod Rosenstein authorized Mueller to continue Crossfire Hurricane, then Mueller's warrant was to investigate those "four Americans." Not President Trump, unless ... Unless his investigation of those "four Americans" led to evidence of criminal conduct on the part of the President. And I think we know the answer to that already.

So, what does that mean for the Mueller report? It means simply this: Mueller should be reporting on his investigation into those "four Americans." What would that type of investigation involve? The investigation would revolve around three central questions: 

  • Were any of the four Americans agents of the Russian government?
  • Did any of them engage in clandestine intelligence activity for or on behalf of Russia?
  • Did any of them engage in conduct of a criminal nature in their dealings with Russians?

I'll presume that most of us are clear as to the first two questions. However, there is a school of thought--totally erroneous--that maintains that Team Mueller's operation was an investigation in search of a crime, that Crossfire Hurricane had no criminal predicate. That is a mistaken idea for this simple reason: For the FBI to use Crossfire Hurricane to obtain a FISA on Carter Page--as it did--the FIS Act requires a criminal predicate. Here's how I theorized that criminal predicate in It's About Sanctions Relief For ... What?

In two recent blog posts--Crossfire Hurricane: The Theory Of The Case and More On Mueller's Theory Of The Case--I outlined what I view as the centrality of sanctions relief for Russia to Team Mueller's continuing jihad against the Trump administration. In the most straightforward version of the theory, Trump would have entered into a straightforward but corrupt quid pro quo with "the Russians": sanctions relief for Russia in exchange for something of value--some type of help for Trump's campaign, be it the release of supposedly "hacked" DNC emails or unspecified "dirt" on Hillary. This would constitute bribery under the terms of the Bribery statute (18 US Code 201), which covers not only government officials but also any "person selected to be a public official." In a more convoluted version of the theory, outlined in More On Mueller's Theory Of The Case, a case might be attempted--relying on the same corrupt transaction--for fraud against the United States (18 U.S.C. § 371).
While this theory of a sanctions relief for DNC emails deal is featured early on in the Steele "dossier" reports, I have always believed that the famous Trump Tower meeting was an early attempt to involve the Trump campaign in just such a corrupt quid pro quo deal.

There's a lot more that could be said, of course (follow the links!), but I think by now we all know that, as far as "Russian collusion" went, Team Mueller was drilling one dry hole after another--until Bill Barr shut it down. But consider--if Team Mueller was unable to prove any of this against the actual subjects of Crossfire Hurricane, that means they didn't lay a glove on Trump.

Therefore, it's entirely conceivable that the report would barely mention Donald J. Trump, POTUS. Follow me on this.

First of all, investigations--or even criminal trials--are not intended to prove a negative. That's simply not a reasonable expectation. The verdict may be "Not Guilty," but what that really means is: not proven beyond a reasonable doubt. By the same token, it would be unreasonable for an investigation of this sort to proclaim President Trump "Innocent." That would amount to the same fallacy: attempting to prove a negative. And, in fact, all the Special Counsel regulations envision is this:

At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

It's true that in "explaining the ... declination decisions" Mueller could explain that he thought that his team had, in fact, developed evidence against the President, but not sufficient to charge. However, bear in mind that those considerations would only be in a "confidential report" to the Attorney General.

It's also true that the regulations provide that the Attorney General may release the report, but there are a number of significant caveats and even restrictions attached to that:

The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.

Regarding legal restrictions, that probably is a reference to grand jury material, including testimony.  As for the DoJ guidelines ...

That takes us back to Rod Rosenstein's letter to Chuck Grassley, in which Rosenstein explains at great length and in great detail why the investigation had to be kept confidential--even to the extent of not publicly disclosing the criminal predicate (described above). To do otherwise, says Rosenstein, would be a serious violation of long standing DoJ policy. With regard to releasing investigative reports--which is what the Mueller report is--Rosenstein speaks very strongly, and in terms that I believe Barr would agree with. Rosenstein states:

Requiring the Department of Justice to disclose details about criminal investigations would constitute a dangerous departure from important principles. Criminal prosecutions should be relatively transparent - because the public should know the grounds for finding a citizen guilty of criminal offenses and imposing punishment - but criminal investigations emphatically are not supposed to be transparent. In fact, disclosing uncharged allegations against American citizens without a law-enforcement need is considered to be a violation of a prosecutor's trust. ... 

I think Jonathan Karl fairly summarizes that in these words:

The bottom line: Do not expect a harsh condemnation of President Donald Trump or any of his associates if they have not been charged with crimes.

In fact, as I said, Donald Trump may be barely mentioned at all--especially given that we have no reason to believe that he ever became a formal subject of the investigation at any point in the last two years.

So there I am--out on a limb. 


  1. Why would anyone believe a word Mueller says? About anything?

    Mueller is Comey's personal friend.
    Mueller took the opportunity to persecute Trump's associates immediately after his personal friend, Comey, was fired by Trump.

    Mueller is the epitome of a dirty cop.

    1. It's the same as with Comey. If they say anything that favors or gives succor to Trump, one presumes it's more or less true because it goes against their known predelictions.

  2. I think that limb is likely quite solid.

    I will also do some risky tree maneuvers. The executive summary Barr provides will clear all four "identified" targets of all three of your listed questions- and we already know this because none of them were charged with anything related to those three questions. The summary will also conclude that there was literally zero evidence of any collusion whatsoever between anyone connected to the Trump Campaign and any Russians.

    I could wish, I suppose, that the report will also go into Mueller's attempts to corroborate the Steele Dossier- I would certainly like to see those efforts revealed, but I don't expect to see it.

    1. Yancey, re your last point, I wonder ...

      How does he avoid that? It seems to me that if you report on your investigation your have to give some summary of how you started, where you started from. He did, apparently, go to England and interview Steele. As Meadows and Undercover Huber state, that's the really interesting part in the Russia Hoax. I wonder, too, about the Weissmann departure. I think it was forced and wonder whether there was a Barr demand for a rewrite in line with Departmental policy?

      So, while no surprises likely, could be interesting nevertheless.

    2. Yancey, just listening to Nunes. He's talking about 1) we need to know origins of Mueller investigation, 2) obstruction of House investigation re handing over docs.

  3. Techno Fog made a good point:

    "The real question moving forward is WHEN the Special Counsel knew there was no collusion.

    "(Hint: the fact that they didn't subpoena Trump gives a clue that they knew before the midterms)"

    IOW, if Mueller learned at a relatively early point that there was no basis for Crossfire Hurricane--which should have been his top priority from the start--what justification was there for continuing?

  4. Soon after George Papadopoulos became an official advisor to the Trump campaign, he was framed in order to justify the FBI's collection and analysis of communications within Trump's sphere.

    Papadopoulos was told to talk with Joseph Mifsud, who told him that Russian Intelligence had dirt on Hillary Clinton. Then Papadopoulos was told to talk to Alexander Downer, who asked him whether he had heard anything about Russian Intelligence having dirt on Clinton.

    Until then, Papadopoulos had not professional involvement with Russia. Rather, he was an expert on petroleum issues in the eastern Mediterranean.

    It's likely that the still-secret FISA application that reportedly was rejected in the early summer of 2016 targeted Papadopoulos.


    The FBI's justification for investigating Michael Flynn must have had something to do with his relationship with Russia's RT television company. Flynn and the Green Party's leader Jill Stein were paid by RT to attend a dinner in Moscow in December 2015. It's likely that the FBI decided that RT was funneling money to Trump's and Stein's election campaigns in order to oppose Hillary Clinton.

    If there was a FISA warrant against Flynn, it's likely there was a FISA warrant likewise against Stein.

    On January 6, 2017, the US Intelligence Community issued a public report titled Background to Assessing Russian Activities and Intentions in Recent US Elections”: The Analytic Process and Cyber Incident Attribution. This report comprised 13 pages of text, of which more than seven pages were about RT.


    The FBI knew that Carter Page was not an agent of Russian Intelligence. The FBI's FISA warrant against Page was merely a pretext to collect and analyze communications within Trump's sphere.


    I hope that eventually the public will be able to see a list of all Trump associates whose communications were collected and analyzed by the FBI based on FISA warrants.

    1. Michael Goodwin in NY Post:

      "Now that special counsel Robert Mueller has completed his investigation, it is tempting to breathe a sigh of relief and assume that our long national nightmare is over. Resist the temptation, the assumption is false.

      "We are not close to the end. Not by a long shot."

      "The task of finding out falls to the new attorney general, William Barr. ...

      "Graham: “Do you promise me as attorney general — if you get this job — to look and see what happened in 2016?”

      “Yes, Mr. Chairman,” Barr replied."

  5. “The Department of Justice notified the House Judiciary Committee that it can expect to receive a written summary of special counsel Robert Mueller’s investigative conclusions by Sunday at 5 p.m., a lawmaker on the panel told The Hill.”

    I expect this to be a take-or-leave-it-report. For all their bluster, there's nothing they can do to compel Barr something that's within his discretionary judgment.

    1. "Like it or lump it," is how my wife put it. I think that's it.

  6. John Ratcliffe gets in some good lines talking to Maria Bartiromo:

    Starts a bit slow, but heats up.

  7. Your summary of the conduct of DOJ/FBI and the Mueller SC investigation presumes fidelity to the rule of law. I submit that an objective examination of their actions strongly reveals overt criminality rather than integrity. This was a coup attempt plain and simple, and the SC investigation amounted to a Hail Mary pass that fell short. No doubt a lot of revisionism is going to be employed in order to hide this reality and obscure the treachery and sedition, but history will eventually repeat itself if Barr does not hold the conspirators accountable.

    1. "Your summary of the conduct of DOJ/FBI and the Mueller SC investigation presumes fidelity to the rule of law."

      No it doesn't. It presumes they were smart enough to hide their criminal conduct behind legal formalities. That will not save them from a determined investigation that seeks the truth. I fully expect prosecutions.