DOUBLE TROUBLE FOR TRUMP?
Mueller May Drop Second Report That Can’t Be Buried
The special counsel isn’t only looking for crimes: He continues the counterintelligence investigation that started with suspicious Trump-Russia contacts in 2016.
Breathless media alerts notwithstanding, there is reason to be skeptical that Special Counsel Robert Mueller’s final report is imminent. There are just too many loose ends, including the just-begun Roger Stone prosecution and the not-yet-finished litigation over “Corporation A” and other grand jury witnesses, not to mention the glaring absence of any testimony yet from Donald Trump himself. There may certainly be signs the Mueller investigation is entering its final phases—just not this week.
Still, it’s clearly time to consider the shape of what Mueller will produce as he finishes. The reporting requirements of the special counsel regulations have been exhaustively picked over. What must Mueller report to the attorney general? What may the attorney general do with the report? Will Congress and the public ever see it? The ins and outs of the special counsel report regulations played a significant role in Attorney General William Barr’s January confirmation hearings.
But we may be focusing on the wrong report. There may in fact be two Mueller reports. This is because from the very beginning, Mueller has worn two hats and borne two missions relating to the Russia investigation.
The most public and familiar one is as a criminal investigator under the special counsel regulations. But Mueller has also carried a second charge, as a counterintelligence expert, with a much broader charge to determine and report the scope of any interference and any links to the Trump campaign—what Trump himself might refer to as “collusion.”
In March 2017, then-FBI Director James Comey testified that the Russia investigation was commenced “as part of our counterintelligence mission . . . also includ[ing] an assessment of whether any crimes were committed.” Deputy Attorney General Rod Rosenstein’s May 17, 2017 order appointing Mueller special counsel specifically and carefully incorporated this announced scope and mission.
From the start, then, Mueller has been conducting a counterintelligence investigation, while “also” assessing whether any crimes were committed. Not the other way around.
Comey and Rosenstein knew what they were doing. It is the mission of a criminal investigation to produce indictments and trials, which tell stories and render conclusions only imperfectly. Thanks to the special counsel regulations, there is also “a confidential report explaining the prosecution or declination decisions.” But what will go into this report and what the Congress and public may ultimately see is highly proscribed.
It is the central mission of a counterintelligence investigation, however, to produce . . . well, a report. These findings and conclusions are shared with the Office of the Director of National Intelligence (ODNI), and relevant agencies of the 17-member intelligence community (CIA, NSA, DIA, etc.). The report may be honed into a formal IC “assessment” reflecting the consensus view of the 17 agencies. It was just such a report, “Assessing Russian Activities and Intentions in Recent US Elections,” that on Jan. 7, 2017 was shared with incoming President Trump. Its disclosure brought into public view the Intelligence Community’s bombshell conclusion that Vladimir Putin had personally ordered an effort to discredit Hillary Clinton and to “help President-elect Trump’s election chances.”
Significantly, unlike a final criminal report, a Mueller counterintelligence report cannot be bottled up. By statute it must be shared with Congress. The House and Senate intelligence committees are legally entitled to be given reports, in writing, of significant intelligence and counterintelligence activities or failures. Mueller’s findings will certainly qualify.
Where matters are too delicate to share with all the members of the intelligence committees, statute and established practice provide that disclosure may be made to a smaller circle known as the “Gang of Eight:” the chair and ranking member of each intelligence committee, and the Democratic and Republican leaders of each chamber.
Already, these obligations have generated significant disclosures to Congress of Russia’s activities. In August 2016, then-CIA Director John Brennan briefed members of the Gang of Eight on the then-new signs of Russian interference and hacking. The explosive disclosure in the January 2017 IC assessment that Putin had ordered interference specifically to assist then-candidate Trump was also thanks to these provisions. And in May 2017, then-acting FBI Director Andrew McCabe informed the Gang of Eight that in the wake of Comey’s firing, the FBI had focused its counter-intelligence investigation on the president himself.
Mueller inherited this investigation just days later, and he inherited this reporting framework as well. Twenty-two months of relentless investigation have followed since.
The criminal side of the investigation has revealed bits and chunks of the investigation’s work: 34 individuals have been indicted or pleaded guilty, including six former Trump advisers. Lengthy speaking indictments, guilty pleas, trials and sentencing memoranda have publicly disclosed intermittent and unconnected swathes of Mueller’s investigative results. His final criminal report to Barr may tell us more, if we get to see it.
But it is Mueller’s counterintelligence report we should really be anticipating. Done well (and Mueller and his team seem to do everything well), it will provide a much richer, broader narrative description of Russia’s effort to interfere in 2016, the nature of any links or cooperation between the Russians and the Trump campaign, and whether Trump or his associates were witting or unwitting assets for the Russians (including by obstructing the investigation)—as well perhaps as conclusions for action.
Of course, any Mueller counterintelligence report will be heavily freighted with classified information. A non-classified summary is typically provided, but the full report and underlying evidence will remain highly sensitive. How the Intelligence Committees may choose to share critical aspects of the report with their Judiciary Committee counterparts and beyond will not be trivial.
Still, neither the special counsel regulations nor Attorney General Barr’s discretion will keep Mueller’s counterintelligence findings from Congress. The intelligence community knows its obligations. Mueller’s second report, larded surely with detailed findings and counterintelligence conclusions, will make its way to the Gang of Eight and the intelligence committees.
And then, the final inexorable chapter of Mueller’s Russia investigation—congressional consideration of the implications for the Trump presidency—may begin.
Nelson W. Cunningham served as a federal prosecutor in the Southern District of New York under Rudolph Giuliani, general counsel of the Senate Judiciary Committee under then-chair Joseph R. Biden, and general counsel of the White House Office of Administration under Bill Clinton.