Mueller special counsel investigation

When the special counsel was appointed by Rod Rosenstein in May 2017, the special counsel took over an existing counterintelligence investigation by the Federal Bureau of Investigation (FBI) into what proved to be Russian interference in the 2016 United States elections and numerous secretive links between Trump associates and Russian officials and spies.[40] According to reports, Australian officials informed American officials that in May 2016, a Trump presidential campaign adviser, George Papadopoulos, told the Australian High Commissioner to Britain, Alexander Downer, that Russian officials were in possession of politically damaging information relating to Hillary Clinton, the rival presidential candidate to Trump from Democratic Party. Since the FBI, in response to this information, opened an investigation into the links between Trump associates and Russian officials and spies on July 31, 2016, the meeting between Papadopoulos and Downer is considered to be the 'spark' that led to the Mueller investigation.[41] In February 2018, the Nunes memo, written by staff for U.S. Representative Devin Nunes, stated that the information on Papadopoulos "triggered the opening of" the original FBI investigation,[42] rather than the Steele dossier by Christopher Steele (see below) as asserted by, among others, Trump, Nunes, Fox News hosts Steve Doocy, Ed Henry, Tucker Carlson, Sean Hannity, and Fox News contributor Andrew McCarthy.[43][44][45]

The special counsel also took over an FBI investigation on whether President Trump had committed obstruction of justice, which began within eight days after Trump's dismissal of FBI Director James Comey. CNN reported in December 2018 that then-acting FBI Director Andrew McCabe started the investigation based on Comey's firing—which had been recommended in writing by Rosenstein in what became known as the Comey memo—and also Comey's allegation that Trump had asked him to stop investigating Trump's former national security adviser Michael Flynn.[46] In February 2019, McCabe, since fired from the FBI, confirmed he launched the obstruction of justice investigation for those reasons, and gave additional reasons such as Trump's multiple depictions of the investigation into Trump associates and Russia as a "witch hunt", as well as Trump allegedly telling Deputy Attorney General Rod Rosenstein to mention the Russia probe in Rosenstein's memo to recommend firing Comey, and Trump's comments to the Russian ambassador and NBC relating Comey's firing to the Russia probe.[47]

A special counsel investigation is subject to oversight by the attorney general.[48] After questions arose regarding contacts between then-senator Jeff Sessions and Russian ambassador Sergei Kislyak in 2016, one of the first things Sessions did after being appointed attorney general, was to recuse himself from any Justice Department investigations regarding Russian interference in the election.[49]

Once Attorney General Sessions recused, oversight of any Russia investigation into the 2016 election fell to the Deputy Attorney General Rod Rosenstein, a Trump appointee. As part of his oversight, Rosenstein appointed Robert Mueller as special counsel in May 2017 with the mandate "to oversee the previously-confirmed FBI investigation of Russian government efforts to influence the 2016 presidential election and related matters".[50]

Rosenstein has said he would recuse himself from supervision of Mueller if he himself were to become a subject in the investigation due to his role in the dismissal of Comey.[51] If Rosenstein were to recuse himself, his duties in this matter would have been assumed by the Justice Department's third-in-command, Associate Attorney General Jesse Panuccio.[52] So long as no successor fills that office, Solicitor General Noel Francisco would assume the authorities of Associate Attorney General.[53]

The special counsel appointment on May 17, 2017, came after protests, mostly from Democrats, over President Trump firing the FBI Director James Comey on May 9, 2017.[54][55] In Congress, in reaction to Comey's firing, over 130 Democratic lawmakers called for a special counsel to be appointed, over 80 Democratic lawmakers called for an independent investigation, while over 40 Republican lawmakers expressed questions or concerns.[56] Complicating the situation, Comey arranged to leak to the press classified information, notes from an interview with the president where Trump asked him to end the probe into Michael Flynn.[57] Comey would later be rebuked by the Department of Justice's Office of Inspector General for this action.[58] Trump fired Comey on the recommendations of Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein,[59] although Deputy Director of the FBI Andrew McCabe claimed Rosenstein did not want to write the recommendation to fire Comey, and only did so because Trump ordered him to.[60]

The New York Times reported on January 11, 2019, that FBI counterintelligence grew concerned about Trump's ties to Russia during the 2016 campaign but held off opening an investigation because of uncertainty about how to proceed on such a sensitive matter. Trump's behavior during the days immediately before and after Comey's firing caused them to begin investigating whether Trump had been working on behalf of Russia against U.S. interests, knowingly or unknowingly. The FBI merged that counterintelligence investigation with a criminal obstruction of justice investigation related to Comey's firing. Mueller took over that investigation upon his appointment, although it was not immediately clear if he had pursued the counterintelligence angle.[61]

The New York Times reported in August 2020 that Rosenstein curtailed a May 2017 FBI inquiry into Trump's personal and financial dealings in Russia, giving the bureau the impression that the special counsel would investigate it, though Rosenstein instructed Mueller not to.[62][63]

Deputy Attorney General Rod Rosenstein, in his role as Acting Attorney General for matters related to the campaign due to the recusal of Attorney General Jeff Sessions, appointed Mueller, a former Director of the FBI, to serve as Special Counsel for the United States Department of Justice (DOJ) with authority to investigate Russian interference in the 2016 United States elections, including exploring any links or coordination between Trump's 2016 presidential campaign and the Russian government; "any matters that arose or may arise directly from the investigation"; and any other matters within the scope of 28 C.F.R. § 600.4(a).[64]

As Rosenstein later informed Congress, he elected to use a Special Counsel rather than have the FBI itself oversee the investigation because did not believe acting Director of the FBI Andrew McCabe was the right person to lead the investigation. Instead, he would appoint a Special Counsel, as had been done in the past. U.S. Attorneys serve as special counsel, but in May 2017 there were only three Senate-confirmed U.S. Attorneys serving at the time, the Senate having not yet confirmed the new president's nominees, and those three had remained as holdovers from the previous administration pending the arrival of the new attorneys. As a result, Rosenstein decided to select Robert Mueller, though he was retired, because of his reputation.[65][66][67][68]

As special counsel, Mueller had the power to issue subpoenas,[69] hire staff members, request funding, and prosecute federal crimes in connection with the election interference along with other crimes he may uncover.[70] The constitutionality of indicting a sitting president remains an unsettled legal question.[71][72][73][74]

On April 18, 2019, a redacted version of the Report on the Investigation into Russian Interference in the 2016 Presidential Election was released to the public.

The Special Counsel law requires a special counsel to confidentially provide the current attorney general with a report of findings. The attorney general, in this case William Barr, is then required to provide a summary of the findings to Congress, although he has considerable discretion in how much detail he provides. The full release of the Mueller findings to Congress and the public is not assured.[75] Should Congress be dissatisfied with the summary it is provided, it could subpoena Mueller's full report, and, if necessary, sue in federal court. Congress could also call Mueller to testify.[76][77]

White House attorneys expect to preview whatever findings Barr decides to provide to Congress and the public, in order to consider asserting executive privilege to withhold the release of information gleaned from internal documents and interviews with White House officials.[78] Commentators have noted that executive privilege cannot be invoked if the purpose is to shield wrongdoing or unlawful conduct.[79][80]

On March 14, 2019, the House voted 420–0 in favor of a non-binding resolution calling for the full special counsel report to be released to Congress and the public, excluding classified or grand jury information.[81] The same day the bill was brought before the Senate for unanimous consent, but was blocked by Senator Lindsey Graham, who said it needed a clause requiring the appointment of a special counsel to investigate allegations against the 2016 Clinton campaign.[82] On March 15, Trump stated "there should be no Mueller Report" because "this was an illegal & conflicted investigation." Five days later he stated, "I told the House, 'If you want, let [the public] see it,'" adding, "that's up to the Attorney General."[83][84] On March 25, 2019, Senate majority leader Mitch McConnell blocked an effort by minority leader Chuck Schumer for the Senate to take up the same resolution approved by the House eleven days earlier.[85]

The special counsel delivered its report to Attorney General Barr on March 22, 2019.[86] Two days later, on March 24, Barr sent a four-page letter of the report to Congress, describing the conclusions on Russian interference in the 2016 presidential election and obstruction of justice.[11]

Barr said the report would be delivered to Congress by mid-April, with some redactions of any information that would "potentially compromise sources and methods" or "unduly infringe on the personal privacy and reputational interests of peripheral third parties".[87] A two-volume redacted version of the full report was publicly released on April 18, 2019.[88] A less-redacted version of the report will eventually provided to a limited number of members of Congress.[89][90]

As the Mueller investigation progressed, Trump repeatedly expressed anger over Attorney General Sessions' decision to recuse.[120] In July 2017, Trump said that Sessions should have informed him about Sessions' impending recusal before Trump even nominated him, then Trump would have nominated someone else for attorney general.[121] In May 2018, Trump said that he wished that he had nominated someone other than Sessions for Attorney General.[122] In August 2018, Trump declared that Sessions' job was safe at least until the November 2018 United States midterm elections.[123] Sessions resigned as attorney general on November 7, 2018, the day after the midterm elections, writing that he had resigned at Trump's request.[124][125]

Matthew Whitaker, who served as the Acting Attorney General from November 2018 to February 2019

With Sessions' resignation, Trump appointed Matthew Whitaker, Sessions' chief of staff, as Acting Attorney General on November 7, 2018.[124] This meant that Whitaker assumed oversight of the Mueller investigation from Deputy Attorney General Rosenstein.[126][127]

Previously in August 2017, one month prior to joining the Justice Department as Sessions' chief of staff, Whitaker wrote an opinion column for CNN titled "Mueller's investigation of Trump is going too far".[128] He stated that Mueller's investigation is a "lynch mob", that it should be limited and should not probe into Trump's finances.[129][130] Whitaker also argued in 2017 that the Trump Tower meeting was neither improper nor evidence of collusion.[131] The New York Times reported that White House aides and other people close to Trump anticipated that Whitaker would "rein in" the investigation.[132]

Whitaker, a vocal Trump supporter, had publicly criticized the Mueller investigation on several occasions before joining the Justice Department in September 2017, asserting it was "going too far" and referring to it as a "lynch mob".[133] Whitaker is also a personal friend of Sam Clovis,[134] a former co-chair of the Trump campaign who has testified to Mueller's investigators and grand jury. Because of his prior statements and involvement,[135] many Democrats and some Republicans have asserted that Whitaker's potential conflicts of interest require him to recuse himself from overseeing Mueller,[136][137] although Whitaker reportedly indicated he had no intention of doing so.[138] Justice Department ethics officials typically review conflicts of interest to recommend recusals,[139][140][141] but their findings are not binding and are usually kept confidential.

On December 7, 2018, President Trump declared that he would nominate William Barr for the vacant post of Attorney General. Barr was previously Attorney General under President George H. W. Bush.[142]

During his January 2019 confirmation hearings, Barr suggested the investigation's findings could be withheld from the public, as their release is not mandated by law. In June 2018, Barr had sent an unsolicited 19-page memo to deputy attorney general Rod Rosenstein and Trump attorneys arguing that the Special Counsel's approach to potential obstruction of justice by Trump was "fatally misconceived" and that, based on his knowledge, Trump's actions were within his presidential authority.[143] In June 2017, Barr had characterized the obstruction investigation as "asinine" and that it was "taking on the look of an entirely political operation to overthrow the president". Trump stated in a February 2019 interview that he had not committed to releasing the Mueller report.[144][145][146]

On February 14, 2019, Barr was sworn in as attorney general after the Senate approved his appointment by a 54–45 vote that day,[147][148] thus gaining oversight of the Mueller investigation from Whitaker.[149]

A total of thirty-four individuals and three companies were indicted by Mueller's investigators. Eight have pleaded guilty to or been convicted of felonies, including five Trump associates and campaign officials. None of those five convictions "involved a conspiracy between the campaign and Russians"[164] and "Mueller did not charge or suggest charges for  [...] whether the Trump campaign worked with the Russians to influence the election".[165] The investigation was, however, more complex. On May 29, 2019, in a press conference, Mueller stated that "If we had confidence that the president clearly did not commit a crime, we would have said that. We did not, however, make a determination as to whether the president did commit a crime... A president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view – that too is prohibited."[166]

Dozens of ongoing investigations originally handled by the Special Counsel's office were forwarded to district and state prosecutors, other Department of Justice (DoJ) branches, and other federal agencies.[167] The following (in alphabetical order) were indicted during the Mueller investigation:

• 13 Russians implicated in election interference: Mueller's team indicted thirteen Russian citizens, the Internet Research Agency (IRA), Concord Management and Consulting and Concord Catering with conducting social media campaigns about the U.S. elections.[168] Twelve of the Russian defendants, who were alleged to be members of the Russian GRU cyber espionage group known as Fancy Bear, were charged in June 2018 with hacking and leaking DNC emails.[169] The other Russian indicted, who was not a direct employee of Fancy Bear, was Russian business tycoon Yevgeny Prigozhin, who was alleged to have served as the financier for the organization.[170] The US government dropped all charges against Concord Management and Consulting and Concord Catering in March 2020.[156] In November 2019, Time magazine reported that it was "unlikely that any of the Russians will ever face a trial in the United States, but the charges make it harder for them to travel overseas".[171]
• Maria Butina, who had claimed to be a Russian gun activist, was investigated by the Special Counsel investigators and then prosecuted by the National Security Law Unit. She was imprisoned for conspiracy to act as an unregistered foreign agent after entering a guilty plea.[172][173]
• Michael Cohen, Trump's personal lawyer, pled guilty to making hush payments to Stormy Daniels and Karen McDougal in violation of campaign finance laws, and was convicted for several unrelated counts of bank and tax fraud.[174][175]
• Lieutenant General Michael Flynn, who had been appointed as National Security Advisor by the incoming Trump administration, was dismissed from his position and later pled guilty to making false statements to FBI investigators about his conversations with Russian Ambassador to the United States Sergey Kislyak during the presidential transition.[176][177]
• Rick Gates, former Trump Deputy Campaign Chairman, was indicted along with Paul Manafort in October 2017 on charges related to their consultation work with pro-Russian political figures in Ukraine. The charges were dropped after he pleaded guilty to conspiracy against the United States for making false statements in the investigation into Russian interference in the 2016 United States elections.[178]
• Konstantin Kilimnik, Manafort's business partner in Ukraine, was indicted for witness tampering at the behest of Manafort;[179] Kilimnik is suspected of working for Russian intelligence.[180]
• Paul Manafort, former Trump campaign chairman was found guilty on eight felony counts of tax evasion and bank fraud,[181] pursuant to his earlier lobbying activities for the Party of Regions of former Ukrainian president Viktor Yanukovich.[182][183] He later pled guilty to conspiracy to defraud and obstruction of justice;[184][185] in total, he was sentenced to over seven years in jail[186] in February 2018.
• George Papadopoulos, Trump campaign foreign policy adviser, was convicted for making false statements to the FBI.[187]
• Roger Stone, a longtime Trump advisor who had met with a Russian person offering to sell derogatory financial information about Hillary Clinton,[188] was indicted on seven charges of lying to Congress and witness tampering. He pled not guilty.[189] The jury subsequently found him guilty on all seven counts.[190]
• Alex van der Zwaan, a Dutch lawyer with the global law firm of Skadden, Arps, Slate, Meagher & Flom, he pleaded guilty to one count of making a false statement to investigators while answering questions about Russian interference in the 2016 United States elections.[191]

On March 22, 2019, the special counsel's office concluded their investigation and sent a report to the Department of Justice where it was received by Attorney General William Barr. Barr, at Trump's nomination, had become attorney general on February 14, 2019, gaining oversight of the investigation from Trump-appointed Acting Attorney General Matthew Whitaker. Whitaker had assumed oversight from Rosenstein on November 7, 2018, after the resignation of then-Attorney General Jeff Sessions, who had recused himself from the investigation. Both Barr and Whitaker had been critical of the Mueller investigation before their appointments. Barr has faced bipartisan pressure to release the full report to the public, to the maximum extent permissible by law.[192]

On March 24, 2019, Attorney General Barr sent a four-page letter to Congress regarding the special counsel's findings regarding Russian interference and obstruction of justice.[193] Barr said that on the question of Russian interference in the election, Mueller detailed two ways in which Russia attempted to influence the election, firstly disinformation and social media campaigns by the Internet Research Agency to cause social discord, and secondly computer hacking and strategic release of emails from the Hillary Clinton presidential campaign and Democratic Party organizations.[194][195] However, Barr quoted the report as saying: "[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities."[196][193][197][198]

On the question of obstruction of justice, Barr said no conclusion was reached by the special counsel, noting that Mueller wrote "while this report does not conclude that the President committed a crime, it also does not exonerate him".[197][199] Barr and Rosenstein concluded that the evidence for obstruction of justice could not form the basis for a prosecution.[200][201][202] On April 18, Barr and Rosenstein held a press conference ninety minutes before a redacted version of the report, titled Report on the Investigation into Russian Interference in the 2016 Presidential Election, was released to Congress and the public.[203] A less-redacted version is planned to be accessible to "a bipartisan group of leaders from several Congressional committees".[204]

The New York Times reported on April 3, 2019, that some members of the special counsel had told associates that they believe Barr's letter did not adequately portray their findings, which they considered to be more troubling for Trump than reported.[205] The next day, The Washington Post reported that members of Mueller's team, who spoke anonymously, reported that the evidence gathered on obstruction of justice was "much more acute than Barr suggested."[206] These members of Mueller's team revealed that they believed that the evidence showed Trump obstructed justice, but that the entire team could not draw a conclusion because they were split over the evidence and law.[206][207] The Washington Post report did not explain why they believed their findings to be more serious than Barr's conclusions and it is unknown how many members of the special counsel hold these opinions.[208]

Barr's letter quoted Mueller's report as stating, "the evidence does not establish that the President was involved in an underlying crime related to Russian election interference," leading Barr to write, "the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense," and concluding, "while not determinative, the absence of such evidence bears upon the President's intent with respect to obstruction." Some legal analysts challenged Barr's reasoning that Trump would not have intended to obstruct justice solely because he knew he had not committed a crime, noting that one can have intent to obstruct justice for other reasons, such as protecting associates from harm.[209][210][211][198]

In May 2021, federal judge Amy Berman Jackson ruled the Barr DOJ had misled her and Congress by asserting a heavily redacted March 2019 internal memorandum[212] contained only deliberative analysis of whether Trump should be charged with obstruction of justice. Jackson had seen the unredacted memo and concluded it contained "strategic" analysis to justify a decision Barr had already made. She ordered the memo to be publicly released within two weeks, pending any appeal by the DOJ.[213][214]

On April 3, 2019, the House Judiciary Committee, which did not receive the unredacted report by its April 2 deadline,[215] voted 24–17 along party lines to approve a resolution which authorizes subpoenas of the full report.[216][215] The resolution also authorized subpoenas related to five of President Donald Trump's former top advisers, including strategist Steve Bannon, communications director Hope Hicks, chief of staff Reince Priebus, former-White House counsel Donald McGahn and counsel Annie Donaldson.[217][218]

The Justice Department discussed the report with White House attorneys, and Barr discussed it in an April 18, 2019, press conference, a few hours before its release to Congress and the public later that day.[203]

On April 19, 2019, House Judiciary Chairman Jerry Nadler issued a subpoena for the release of the full unredacted report.[219][220] On May 3, 2019, Nadler informed Barr that a subpoena had been issued giving him until May 6 to release the full unredacted Mueller Report to the House Judiciary Committee.[221][222][223][224] On May 6, after Barr failed to meet the committee's deadline to release the full report, the committee agreed to hold a vote to start Contempt of Congress proceedings against Barr on May 8.[225][226] A law issued in 1857 gives Congress the power to issue criminal charges for this matter.[227] Trump's announcement of executive privilege came just hours before the House Judiciary Committee planned to vote on whether to hold Barr in contempt. On May 8, 2019, after Trump invoked executive privilege, the House Judiciary Committee voted unanimously to reject White House's assertion of executive privilege and approve a motion put forward by Rep. Matt Gaetz (R-Fl) which states that a vote to hold Barr in contempt would not "be construed as a directive for the Attorney General to violate Federal law or rules."[228][229] In a 24–16 vote, the House Judiciary Committee voted to hold Barr in contempt.[230][228]

On April 18, 2019, a redacted version of the Special Counsel's report titled Report on the Investigation into Russian Interference in the 2016 Presidential Election, was released to Congress and the public. About one-eighth of the lines in the public version were redacted.[231][232][233] The report was in two volumes, the first about Russian interference in the election and potential involvement of Trump associates, and the second on possible obstruction of justice by Trump.

The report concluded that Russian interference in the 2016 presidential election did occur "in sweeping and systematic fashion" and "violated U.S. criminal law."[234][235]

The first method detailed in the final report was the usage of the Internet Research Agency, waging "a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton".[19] The Internet Research Agency also sought to "provoke and amplify political and social discord in the United States".[236]

The second method of Russian interference saw the Russian intelligence service, the GRU, hacking into email accounts owned by volunteers and employees of the Clinton presidential campaign, including that of campaign chairman John Podesta, and also hacking into "the computer networks of the Democratic Congressional Campaign Committee (DCCC) and the Democratic National Committee (DNC)". As a result, the GRU obtained hundreds of thousands of hacked documents, and the GRU proceeded by arranging releases of damaging hacked material via the WikiLeaks organization and also GRU's personas "DCLeaks" and "Guccifer 2.0."[14][237][238]

The Russians had also hacked old Republican Party domains and emails, but, according to James Comey, "none of that was released", and there was no sign "that the Trump campaign or the current RNC was successfully hacked".[239] According to the ODNI assessment, the Russians did not release the content in the way they did to the Democrats.[37]

Mueller used "coordination" and "conspiracy" in a synonymous fashion as he looked for evidence of agreed coordination, not just a mutual understanding ("two parties taking actions that were informed by or responsive to the other's actions or interests").[240] Mueller expressly explained why he was not interested in proving mere collusion, which he, for the purposes of his investigation, determined was not the same as "conspiracy". There had to be "coordination", which implies a conscious "agreement".

To establish whether a crime was committed by members of the Trump campaign with regard to Russian interference, investigators "applied the framework of conspiracy law", and not the concept of "collusion", because collusion "is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law".[241][240][242] They also investigated if members of the Trump campaign "coordinated" with Russia, using the definition of "coordination" as having "an agreement — tacit or express — between the Trump campaign and the Russian government on election interference". Investigators further elaborated that merely having "two parties taking actions that were informed by or responsive to the other's actions or interests" was not enough to establish coordination.[243]

The report writes that the investigation "identified numerous links between the Russian government and the Trump campaign", found that Russia "perceived it would benefit from a Trump presidency" and that the 2016 Trump presidential campaign "expected it would benefit electorally" from Russian hacking efforts. However, ultimately "the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities".[15][16] The evidence was not necessarily complete due to encrypted, deleted, or unsaved communications as well as false, incomplete, or declined testimony.[244][245][246][247][248]

The second volume of the report investigated the topic of obstruction of justice, describing ten episodes where Trump may have obstructed justice as president and one episode before he was elected, and analyzing each in terms of the criteria needed to constitute criminal obstruction.[249][24][23] The investigation found both public and private actions "by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations".[22] However, Trump mostly failed to influence it because his subordinates or associates refused to carry out his instructions.[250][251][252] The Mueller team refrained from charging Trump with obstruction because investigators abided by a DOJ Office of Legal Counsel (OLC) opinion that a sitting president cannot stand trial,[20][21] and they feared that charges would affect Trump's governing and possibly preempt a potential impeachment.[25][21][253] In addition, investigators felt it would be unfair to accuse Trump of a crime without charges and without a trial in which he could clear his name.[20][21][254] Since they had decided "not to make a traditional prosecutorial judgment" on whether to "initiate or decline a prosecution," the special counsel's office "did not draw ultimate conclusions about the President's conduct." The report "does not conclude that the president committed a crime",[19][255] but specifically did not exonerate Trump on obstruction of justice, because investigators were not confident that Trump was innocent after examining his intent and actions.[256][257] The report concluded that Congress has the authority to take further action against Trump on the question of obstruction of justice, stating that no one is above the law.[26][27][257][250]