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.
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.
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 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.