The Scope of the Mueller Probe: Will the Public Learn What Was Uncovered?

Andrew Kent
Saturday, May 20, 2017, 10:19 AM

There are a lot of unanswered questions about the probe new special counsel Robert Mueller will lead into the Trump-Russia issues. I want to offer some thoughts on two questions that are already being raised: what is Mueller’s jurisdiction, and will the public learn what he uncovers?

At the Atlantic, David Frum writes:

FBI Director Robert Mueller leads a briefing for the President on the Boston Marathon bombings, April 2013 / Official White House Photo by Pete Souza

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There are a lot of unanswered questions about the probe new special counsel Robert Mueller will lead into the Trump-Russia issues. I want to offer some thoughts on two questions that are already being raised: what is Mueller’s jurisdiction, and will the public learn what he uncovers?

At the Atlantic, David Frum writes:

The appointment of Robert Mueller as special counsel in the Trump-Russia matter will spell vexation in the medium term and may spell danger in the long term. But in the here and now—the next days and weeks, easing into months—the appointment brings relief.

Republicans in Congress have gained a new excuse to revert to their prior enabling of Trump’s misconduct: A special counsel has been appointed!

Instead of defiantly lying, the White House staff can now refuse to answer questions outright: A special counsel has been appointed!

Fundamental questions of national security and public integrity will go unexplored as the special counsel focuses on narrow legal matters.

Frum is clearly correct about his points one and two—some Republicans already are suggesting that Congress dial back its probes, and this White House has already given ample reason to fear that it will grasp at any opportunity to refuse to truthfully answer questions.

But it is point three I want to think about: must Mueller focus on legal matters—criminal violations—only, and not fundamental questions of national security and public integrity? And related to that, can information discovered by Mueller be made available to the public, the body most entitled to know about the integrity of the administration and threats to national security posed by the president, his team, or people close to them?

I think the answers are (1) no and (2) maybe yes. But Frum (and others) have good cause to worry, and a lot will depend on choices Mueller makes.

What is Mueller’s Jurisdiction?

The order by Deputy Attorney General Rod Rosenstein appointing Mueller states:

(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).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters. . . . .

Comey’s March testimony that Rosenstein incorporated by reference was as follows:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

In March, Comey did not publicly reveal details of what exactly the FBI is investigating. But news reports based on leaks, coming in February before Comey spoke, provided a fuller picture, at least as of then:

The FBI's Pittsburgh field office, which runs many cyber security investigations, is trying to identify the people behind breaches of the Democratic National Committee's computer systems . . . . Meanwhile the bureau’s San Francisco office is trying to identify the people who called themselves “Guccifer 2” and posted emails stolen from Clinton campaign manager John Podesta’s account . . . . Beyond the two FBI field offices, FBI counterintelligence agents based in Washington are pursuing leads from informants and foreign communications intercepts, two of the people said. This counterintelligence inquiry includes but is not limited to examination of financial transactions by Russian individuals and companies who are believed to have links to Trump associates.

Earlier the Lawfare team noted a potential ambiguity about whether the Rosenstein order meant to transfer authority to Mueller over “the larger Russian hacking investigation” including any Trump connections, or “only the parts [of the investigation] that involve the Trump campaign.” The Department of Justice press release accompanying Rosenstein’s order seems to confirm the first, broader interpretation: Mueller will “oversee the previously-confirmed FBI investigation of Russian government efforts to influence the 2016 presidential election and related matters.”

Some have asked whether Mueller will be acting as simply the lead prosecutor, or will be overseeing the entire investigation, including its non-criminal aspects. The Department of Justice regulations under which Mueller was appointed tell us that special counsels are used to conduct “criminal investigation[s] of a person or matter.” So investigating and (perhaps) prosecuting crimes is a big part of Mueller’s mandate. But

But Comey was quite clear that the “counterintelligence investigation” he was then leading “include[d]” but was not limited to “assessment of whether any crimes were committed.”

Rosenstein’s order specifies that Mueller can look into "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump." While the persons who hacked the DNC and other targets almost certainly violated federal criminal law, it is not necessarily illegal to coordinate in distributing hacked material, especially if the material is passed through third parties without full knowledge about the source, as likely happened. Rosenstein writes that Mueller can prosecute “[i]f” he finds it “necessary and appropriate”—implying that criminal prosecution is not the only focus. The text of the letter thus seems to convey authority to lead the full probe into all non-criminal and criminal aspects of the Russia-Trump matter.

FBI Counterintelligence Investigations

What does it mean to have empowered Mueller to take over the counterintelligence investigation announced by Comey, an investigation that involves both criminal and non-criminal aspects?

In the ordinary course, an FBI counterintelligence investigation generated by espionage activity of a foreign government such as Russia would focus on understanding what that foreign government had done and was continuing to do, through what means it was acting, and for what purposes it was acting, as well as attempting to counter the threat and prevent similar ones in the future.

If the FBI counterintelligence investigation revealed that U.S. persons, whether government officials or private parties, had wittingly or unwittingly aided that foreign espionage, or been the targets of the foreign espionage, an FBI counterintelligence investigation in the ordinary course would pursue with vigor all the relevant facts.

Such an investigation would gather and analyze all kinds of information that did not necessarily involve crimes against U.S. law. The factual and analytic fruits of such an investigation could be distributed as needed within the U.S. government. They could and, if significant, would be briefed to certain committees of Congress—in secret. That has already happened at least once, the Washington Post reports.

What about broader questions, such as whether a president or people on his team have in the past engaged in business deals in the foreign country in questions, or with nationals of the foreign country, and whether those deals and relationships gave the foreign government leverage over the president or his team members—either because the deals were unseemly or illegal, or because the money is still flowing and is wanted by the president’s businesses or business partners? Depending on the facts and context, these kinds of questions should be perfectly appropriate to pursue in an FBI counterintelligence investigation.

Public Disclosure?

Ordinarily, all of the information generated by an FBI counterintelligence information would remain secret, except insofar as crimes were charged and thus information was revealed through the criminal process. Some of the reasons for the secrecy are legal, and some prudential. Information can be collected through grand jury subpoenas, electronic surveillance, and national security letters, all of which have complex statutory and other rules barring or inhibiting public disclosure. Information shared by a friendly foreign intelligence service is almost always kept secret by agreement with the foreign partner. Information gathered by the FBI through voluntary interviews with witnesses and publicly available records would generally not be kept secret by law, but rather to protect the integrity of the investigation, avoid tipping off the hostile foreign power, and protect the privacy of persons about whom information was collected.

So the public would ordinarily not learn about any of the information gleaned during a counterintelligence investigation, unless it is revealed in a criminal trial. And any information revealed in a criminal case would be narrowly tailored to proving that case.

But the Mueller probe is not an ordinary investigation, and the legitimate public interest in knowing what happened extends well beyond information relevant to proving crimes.

As David Frum and Jeffrey Toobin have noted, the DOJ regulations on special counsels require a closing report to the Attorney General. But the regulations make this report “confidential,” and state that it concerns only prosecutorial decisions, i.e., not broader information gathered or conclusions reached.

At the close of a special counsel investigation, the Attorney General must also report to the chair and ranking member of the Judiciary Committees of both chambers of Congress. The regulations state that the report may be released publicly if it is determined to be in the “public interest” by the Attorney General, but that is subject to any applicable laws or rules on secrecy. Rosenstein will be standing in for the recused Attorney General Sessions here. But still, few will hold their breath waiting for Trump’s Department of Justice to voluntarily decide to generate and publicly release a comprehensive, critical report. A narrow, short, non-public report seems much more likely.

Yet there are at least four options for Mueller, if he desires to go public with a broad report.

First, Mueller could privately (or more provocatively, publicly) ask Rosenstein to authorize the public release of a comprehensive report, a report written by Mueller and his staff and designed for public consumption, covering much wider ground than the special counsel wrap-up report discussed in the regulations. If Mueller asked Rosenstein for permission to issue such a report and Rosenstein refused, DOJ regulations would require Rosenstein to explain the refusal to the congressional Judiciary Committees. So a refusal would likely cause a very public furor, meaning that Rosenstein would feel some pressure to say yes. A downside of this approach concerns the permissible content of such a report. Any secrecy rules imposed by statute could not be overridden by the mere say-so of Rosenstein, unless the statutes allowed such discretionary waiver.

Second, Mueller could privately or publicly lobby Congress to legislate the authority to release a comprehensive public report. The downsides to this plan are that Congress is controlled by Republicans, who seem to be largely standing by President Trump, and that the President has the veto power.

Third, Mueller could invoke a federal statute, 18 U.S.C. § 3331, to convene a “special grand jury” which is authorized to make public reports on non-criminal misconduct. To convene such a grand jury, the law requires either the approval of “the Attorney General, the Deputy Attorney General, the Associate Attorney General”—which may not be forthcoming here—or that it occur “in a judicial district containing more than four million inhabitants.” Trump Tower, where the campaign was headquartered, is in the Southern District of New York, which has over four million inhabitants.

Among the powers of a special grand jury is a little-known provision stating:

(a) A special grand jury impaneled by any district court, with the concurrence of a majority of its members, may, upon completion of its original term, or each extension thereof, submit to the court a report—

(1) concerning noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action; or

(2) regarding organized crime conditions in the district.

The Department of Justice takes the position that “organized criminal activity” is a very broad term that “includes ‘any criminal activity collectively undertaken.’” The statute provides that the federal judge overseeing the special grand jury will make the report public if certain conditions are satisfied, including that the report is “supported by the preponderance of the evidence” revealed during the special grand jury investigation.

To sum up, if Mueller convinces a federal district court in Manhattan (or another qualifying judicial district) to empanel a special grand jury, and presents evidence to that grand jury both of collective criminal activity by appointed public officers or employees, and of “noncriminal misconduct, malfeasance, or misfeasance in office,” the grand jury could vote to produce a report on such governmental misconduct, and the judge would most likely be duty bound to release the report to the public. One hitch is that the campaign activity of a non-incumbent is not an obvious fit with the statute's focus on officeholders.

A fourth option is that Mueller could request a regular federal grand jury—perhaps one sitting in Manhattan or Washington DC—to invoke its historic, common law powers as a grand inquest to produce and release a public report on crimes and non-criminal misconduct. The report would be written by Mueller’s team but reviewed and voted on by the grand jurors.

The public report issued under common law powers could be even broader than a special grand jury report, and there would be no statutory authority for a judge to refuse to publicly release it (although judges do have inherent powers to supervise grand juries). But this option is much more legally fraught than the special grand jury approach because, although the inherent, historical power of grand juries to publicly report on both crimes and non-criminal misconduct—especially by public officials—is clear, the exercise of the power has withered away, especially at the federal level. A power justified by historical usage might no longer exist if it hasn’t been used in a century or more. Additionally, in recent decades some courts have been receptive to arguments by persons criticized in grand jury pronouncements that such public reporting should be disallowed either because Congress’ narrower special grand jury procedure overrides and replaces the common law power, or that the due process rights of an individual are infringed by being publicly named and shamed without the legal opportunity to respond.

In practice, it seems unlikely that Mueller would employ either the third or fourth options—using a grand jury to make public his findings. It would be highly unusual, and Mueller might reasonably shy away from any reporting method that could be construed as controversial.

The Bottom Line

The Mueller probe should be quite broad, covering Russian interference and any Trump connections, and extending not just to crimes committed but also to classic counterintelligence questions about the nature of the espionage threat. But it is correct that congressional investigations—either by standing committees, as is happening now, by a select committee, or by a special commission given delegated oversight power by statute—should be much broader still than the outer limits of Mueller’s remit.

As Benjamin Wittes and Susan Hennessey put it, writing about how congressional investigation of the Russia-Trump mess should be different and broader than a DOJ/FBI investigation:

Congress is charged with ascertaining information related to legislative purposes—including the imposition of sanctions in response to the activity of a hostile foreign power, the discharging of its oversight function with regard to fraud, abuse, or corruption in the executive branch, and legislative measures that might be necessary to protect the American electoral system. It also has a duty to publicly address major questions the political system is struggling with now in a fashion the public can absorb and process: What is the President’s relationship with Russia? And is there reason to be concerned about it?

Regarding public disclosure of information collected by Mueller, I have offered four avenues by which Mueller could attempt to make a public report. (There may be others still.) All four options are uncertain, in that they require the buy-in of other actors, whether Congress, Rod Rosenstein, or a federal judge overseeing a grand jury. And, as I noted, the grand jury options would be unusual and thus potentially quite controversial.

The public may learn a lot more from the Mueller inquiry that some fear. But it still seems clear that a broad inquiry, broad public disclosure, and proportionately broad governmental response to all of the intertwined legal, diplomatic, national security, and political aspects of the Trump-Russia matter will need to come from Congress.

Andrew Kent is a professor at Fordham University School of Law and holds the John D. Feerick Research Chair.

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