Deputy Attorney General Rod J. Rosenstein’s order appointing Robert S. Mueller III to serve as special counsel outlined what Mueller and his team would be investigating.
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:
(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).
The referenced part of the Code of Federal Regulations, 28 C.F.R. § 600.4(a), allows the special counsel to “investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”
Mueller is often described as having been appointed to investigate possible collusion between the campaign of President Trump and Russian actors, but it’s clearly broader than that. And, as time has passed, some specifics have emerged about what Mueller and his team are investigating, and we have increasingly learned about areas into which that investigation may have expanded.
Below, our analysis of what Mueller’s team is believed to be investigating.
Russian efforts to interfere in the 2016 election. This was part of what then-FBI Director James B. Comey originally confirmed during his March 2017 testimony. But, more specifically, it is also an area in which Mueller’s team has already issued indictments. Last month, 13 individuals affiliated with an agency in Russia were indicted for creating fake social media personas to promote divisive public events or share political material online. The charges included conspiracy and identity theft. (Part of the latter allegation involved buying bank account numbers that appear to have been provided by a California man named Richard Pinedo, who pleaded guilty to identity theft charges in February.)
Those indictments also make up the bulk of the outstanding cases brought by Mueller’s team.
What may be in the pipeline: What has not been addressed publicly in indictments is Russia’s alleged hacks of the Democratic National Committee network and the email account of Hillary Clinton campaign chairman John Podesta. Those hacks were almost certainly more significant in affecting the 2016 election. The outstanding questions involve the actors behind those hacks (believed to be arms of Russian intelligence) and how the stolen information ended up in the hands of WikiLeaks, which published it.
Possible efforts by the Trump campaign to aid the Russian interference. This is generally understood to be the heart of Mueller’s investigation. So far, the indictment getting at this point most directly is George Papadopoulos’s guilty plea unveiled last October. Papadopoulos is the campaign adviser who was informed that the Russians had “dirt” on Clinton in the form of emails in April 2016. He inadvertently kicked off the FBI’s counterintelligence investigation — made public by Comey in March of last year — by telling an Australian diplomat what he had learned. When emails stolen from the DNC were released beginning in July, the Australian government informed the FBI about Papadopoulos’s comments.
Papadopoulos pleaded guilty to lying to federal investigators about when he met the London-based professor who told him about the “dirt” and lying about when he learned about those documents. He is believed to be assisting Mueller’s investigation.
What may be in the pipeline: What constitutes “collusion” is subjective; there’s no criminal statute detailing what would qualify. In other words, there’s some subjectivity in consideration of whether Papadopoulos’s failure to inform American authorities about what he’d learned counts as collusion. Was he too distant from the core of the campaign? Was his inaction a tacit form of collusion?
We know of other possible points of interaction that might be similarly nebulous. Does Donald Trump Jr.’s embrace of a meeting at Trump Tower predicated on getting “dirt” on Clinton qualify? Was campaign adviser Carter Page told about the existence of incriminating information while in Russia, as alleged by the dossier compiled by former British intelligence officer Christopher Steele? Were there contacts between the campaign and WikiLeaks beyond the ones that have been made public? Do those count? Is there more to any of those stories that we don’t yet know about? Are there connections which aren’t yet public at all?
More to the point, are there criminal charges that would result from these actions? At the blog Lawfare, writers Emma Kohse and Benjamin Wittes (the latter an associate of Comey’s) argue that the indictment against the Russians shows how charges might be brought against campaign staffers. In short, the charge could be “conspiracy to defraud the United States.”
“Unlike conspiracy to commit an offense, conspiracy to defraud the United States need not be connected to a specific underlying crime,” they write, “and ‘defraud’ is not defined. In the 1910 case Haas v. Henkel, the Supreme Court interpreted the provision broadly to include ‘any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.’ Notably, there is no requirement that the government be cheated out of money or property.”
Obstruction of Mueller’s investigation. This is where that 28 C.F.R. § 600.4(a) bullet point comes into play.
There are numerous reports that Mueller’s team is building a case against Trump and possibly others for attempts to interfere with his investigation or, more broadly, the investigation into his campaign. Those may include:
- The firing of Comey, which he later told NBC’s Lester Holt was a function of the Russia investigation.
- Apparent efforts to get Comey to drop his investigation into former national security adviser Michael Flynn. (Flynn eventually pleaded guilty to charges of lying to federal authorities.) This effort apparently included asking other administration officials to intervene with Comey.
- Trump pressuring Attorney General Jeff Sessions to quit, allowing him to appoint a replacement who might handcuff Mueller’s investigation. This after Trump encouraged Sessions not to recuse himself from matters related to the Russia investigation.
- Trump’s team drafting an intentionally misleading public statement after the Trump Tower meeting was revealed. This may include then-communications director Hope Hicks allegedly telling someone on Trump’s legal team that emails contradicting the statement would “never get out.” (Through an attorney, Hicks denied this.)
It’s not clear if Mueller could charge Trump with obstruction of justice, given that he is president. Others might not be so lucky.
Financial crimes uncovered through the investigation. That “any matters that arose or may arise directly from the investigation” stipulation in Rosenstein’s original order has been the bane of former Trump campaign chairman Paul Manafort’s recent existence.
Manafort faces more than two dozen charges ranging from fraud to conspiracy to money laundering, a function of his work prior to starting with the Trump campaign. His longtime business partner Rick Gates, who served as deputy campaign chairman, faced a similar raft of charges but accepted a plea deal last month in exchange for cooperating with Mueller’s team. A London-based lawyer also pleaded guilty to charges from Mueller’s team related to communications with Gates.
What may be in the pipeline: One of the likely worries of those affiliated with Trump’s campaign is that they, too, may have unrelated financial tricks that get caught up by Mueller’s team. Trump himself once said that he considered investigations into his own finances a “red line” that Mueller should not cross. The Post reported on Tuesday that Mueller’s team was investigating incidents involving Trump’s private lawyer, Michael Cohen. Shortly before presidential primary voting began in 2016, Cohen reached out to an aide of Russian President Vladimir Putin to ask for help advancing a development project that the Trump Organization was hoping to build in Moscow.
There have been sporadic questions as well about loans received by Trump’s son-in-law Jared Kushner.
Other foreign money used to influence the election or administration policy. George Nader, a businessman with ties to the United Arab Emirates, is apparently cooperating with Mueller’s team. Nader allegedly attended a meeting in January 2017 in the Seychelles during which an official close to Putin met with Erik Prince, a Trump ally and the brother of education secretary Betsy DeVos.
That meeting could illuminate the relationship between Trump’s team and the Russian government, as the meeting may have also included an attempt to establish a private communications channel between Trump’s team and the Russians. (Kushner allegedly worked to set up something similar in a meeting with the Russian ambassador the month prior.)
But the New York Times also suggests that Mueller’s interest in Nader may be broader than that Seychelles meeting.
“Investigators have questioned Mr. Nader and have pressed witnesses for information about any possible attempts by the Emiratis to buy political influence by directing money to support Mr. Trump during the presidential campaign, according to people with knowledge of the discussions,” the newspaper reported last week.
NBC reported that Mueller has also questioned witnesses about whether Kushner’s efforts to secure loans for his private business ventures might have shaped White House policy once Trump was inaugurated. That includes conversations with Qatar, Turkey, Russia, China and the UAE. (Last month The Post reported that several countries, including the UAE and China, had discussed leveraging Kushner’s inexperience and private business to their benefit.)
Lying to federal officials. Hanging over all of these questions is Mueller’s trump card, if you will. If anyone being interviewed by Mueller’s team or by federal agents is found to have lied, they can be charged with a felony. So far, Mueller’s team has secured guilty pleas from four people for misleading federal authorities: Flynn, Papadopoulos, Gates and the lawyer linked to Gates, Alex van der Zwaan. As Mueller continues to interview witnesses, more opportunities arise for people to lie about what they know.
If they do, Mueller has shown willingness to exact a price.
What may be in the pipeline: Almost anything.