Given that Trump has made it abundantly clear that he’ll try everything in his power to shut down the Mueller investigation, reports that it is approaching something of an end are no-doubt unnerving (as demonstrated by some of the “Mueller is compromised!” hysteria last night on Twitter), especially since it coincides with a new Attorney General—William Barr has officially taken over for Matt Whitaker. Whitaker’s appointment still makes no sense when you consider his lack of serious legal experience, and I wouldn’t be surprised in the least bit if his story has yet to fully be told. While it’s impossible to ignore the fact that Whitaker was basically a Trump-approved spy in the DOJ, Barr is much less of a toady, and is far likelier to play things by the book. Mueller submitting this report after Barr takes over makes more, not less, sense. If Whitaker was still sitting above Rosenstein in the DOJ organizational chart when this report came in, then we would have serious cause to be concerned. Barr is a right-wing ideologue and is no-doubt something of a Trump loyalist, but he at least brings a CV that demonstrates the ability to do the adult things required to keep the DOJ running smoothly.
For everyone unnerved by this development, here is a line in The Washington Post report that should be a relief:
According to people familiar with the special counsel’s work, Mueller has envisioned it as an investigative assignment, not necessarily a prosecutorial one, and for that reason does not plan to keep the office running to see to the end all of the indictments it has filed.
Lost in the hysteria around the special counsel is the special counsel’s actual, legally defined job. The rampant corruption that is the Trump enterprise has expanded to such a degree in plain sight that it’s easy to lose sight of exactly what Robert Mueller was tasked to do, so let’s revisit the legal directive signed by Deputy Attorney General Rod Rosenstein that outlines the scope of Robert Mueller’s powers:
(b)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)
28 C.F.R. § 600.4(a) is one section of the laws outlining the general powers of any special counsel appointed by the Department of Justice, and they are described as such:
The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority 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; and to conduct appeals arising out of the matter being investigated and/or prosecuted.
So as you can see, the idea that Robert Mueller would one day lead Donald Trump out of the White House in handcuffs is a fantasy betrayed by Robert Mueller’s job description in his appointment memo. Mueller reportedly views his work as investigative, not prosecutorial, which shouldn’t be surprising given that is the main outline described in Rosenstein’s appointment letter.
Mueller has the option to prosecute folks, and he has taken that route with Michael Flynn, Paul Manafort (multiple), Rick Gates, George Papadopoulos, 13 Russian nationals, three Russian companies, Richard Pinedo, Alex van der Zwaan, Konstantin Kilimnik, 12 Russian military intelligence officials, Michael Cohen and Roger Stone.
But that doesn’t mean he needs to stick around to see everyone go through a trial. If the WaPo report is true (and the only reason I’m not treating it as confirmed fact is because the special counsel’s office has proven they do not leak, so any reports about their mindset should immediately be met with some amount of skepticism), then it’s most likely that Robert Mueller has accomplished his prime directive: “investigating any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
One big reason why you shouldn’t be concerned about shady stuff going down: all the aforementioned indictments by Mueller. He has set up a minefield for Trump’s lawyers to navigate. You may look at his charges against Russian military intelligence officials and wonder why he would bother going after people who clearly will never stand trial in America, and e-mails like this one speaking about a “back channel” to the “Kremlin” from GOP operative Paul Erickson provide the explanation (this e-mail is from the DOJ’s indictment of alleged Russian spy, Maria Butina).
If there were any “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” then indicting Russian government officials would be a way to establish “links and/or coordination…with the campaign of President Donald Trump.” Marcy Wheeler, one of the best national security reporters around (she also said she gave information to the special counsel that after the later release of publicly available information, she realized “likely implicates the President directly”), pointed out that a judge has already agreed that this did happen when Paul Manafort handed off sensitive campaign polling data to his Russian military intelligence-trained right hand man, Konstantin Kilimnik (that’s a name you should get used to saying if you haven’t already).
Manafort himself released the detail that he was sharing polling data and it appears unredacted in an official transcript. Manafort's own lawyer called the data highly detailed and recent. The judge deemed that meeting a tie to the RU govt.— emptywheel (@emptywheel) February 17, 2019
To wrap this up, let's revisit the DOJ's special counsel statute, specifically about reporting by the special counsel in 28 CFR § 600.8 (emphasis mine):
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.
“The Mueller Report” isn't for us, folks. It's for Rod Rosenstein and the DOJ. Now, the DOJ is required to report to Congress, so this will eventually get filtered through more public channels (especially since House Democrats are already clamoring for details to be made public), but what Mueller is reportedly submitting in the coming days is confidential. Before yesterday's WaPo and CNN reports turned this from informed conjecture into a multiple-major outlet confirmed report (NBC was the first to run with some indication that this was coming back in December), Marcy Wheeler expanded on whether Mueller is “done,” and what that even means.
Is it possible Mueller will submit "the report" before that's done?
There are DC AUSAs on both those teams. Maybe Mueller just wants to be done!
Except he built a shit-ton of appellate talent into his team from the start. Why disband when you've got appeals?
4/n— emptywheel (@emptywheel) February 20, 2019
Maybe there's another report!?!?!?!?!
Yes. There is. As I've noted, Manafort's sentencing memo (due Friday) will be a report, of sorts. Given past practice, it will be very very detailed, w/real evidence linked. Could that be the report? https://t.co/56TPmnWlLL
6/n— emptywheel (@emptywheel) February 20, 2019
There IS one more possible report out there — one way in which Williams' report could be true. It's this report.
8/nhttps://t.co/SqkNGUsfCgpic.twitter.com/YEpOUkJIFR— emptywheel (@emptywheel) February 20, 2019
I don't think that's going to happen. But if Mueller wanted to be sure to get an impeachment package into @RepJerryNadler's hands, deciding he was done and asking to indict the President would be one way—the one guaranteed way—of doing that.
10/n— emptywheel (@emptywheel) February 20, 2019
Long-story short: we don’t really know the details. This is a counterintelligence and a criminal investigation, and it is wrapped in a thick cocoon of unprecedented secrecy. The “Mueller report” that’s reportedly on its way seems to be more of an internal DOJ one than a big reveal designed for mass consumption, and just because Mueller submits that report doesn’t mean his work his done.
After all, Roger Stone was just arrested and the FBI found terabytes of data on his hard drives, and I haven’t even mentioned the massive game of hardball the Southern District of New York is playing with Trump and his associates yet (remember the death of the Trump Foundation? That was the state of New York’s handiwork—the knives are out for Trump’s business at the state level, where he has no power to usurp theirs). “The Mueller investigation” as it is legally defined may be coming to a close, but “the Mueller investigation” as it’s publicly known is far from over given how many “matters that arose or may arise directly from the investigation” Mueller stumbled over and farmed out to other offices like SDNY. We are in the process of unwrapping a byzantine empire built on mountains of shady cash, and Mueller’s report being submitted to the DOJ should be viewed as a major, major event—but far from a conclusion.
Jacob Weindling is a staff writer for Paste politics. Follow him on Twitter at @Jakeweindling.