The former special counsel still has a lot he can clarify...
“On Wednesday, in back-to-back hearings with the former special counsel, that wish could face its final make-or-break moment.”
The very fact that Democrats had to subpoena Mueller in order to create this final moment should in fact be the final reminder of what a mistake it was for Democrats to have waited on him. If Mueller had incriminating information yet to share, or had been stymied from doing his work, or if Attorney General William Barr had somehow misrepresented his findings, then it stands to reason that Mueller would be welcoming the opportunity to appear before Congress, not resisting it. The reality is that Mueller’s investigation did not indict a single person for collusion with Russia, or even for anything related to the 2016 election. Mueller’s report found no evidence of a Trump-Russia conspiracy, and even undermined the case for it.
That said, there are unresolved matters that Mueller’s testimony could help clarify. Mueller claimed to have established that the Russian government conducted “a sweeping and systematic” interference campaign in order to elect Trump, yet the contents of his report don’t support that allegation. The Mueller report repeatedly excludes countervailing information in order to suggest, misleadingly, that the Trump campaign had suspect “links” and “ties” to people connected with Russia. And Mueller and other intelligence officials involved in the Russia probe made questionable investigative decisions that are worthy of scrutiny. To address these issues, here are some questions that Mueller could be asked.
I should note that missing from my list is anything related to obstruction. This topic will surely dominate Democrats’ line of questioning, but I view it as secondary and more appropriate for a law school seminar. The core issue of the Mueller investigation is alleged Russian interference in the 2016 election and the Trump campaign’s potential coordination with it. The obstruction issue only began to dominate after it was clear that Mueller had found no such conspiracy. Although the report does show examples of Trump’s stated intent to impede the Mueller investigation, the probe itself was unhindered.
There is also the fact that Mueller himself declined to make a call on obstruction, and even presented arguments that could be used to refute it. The obstruction section of the report notes that Trump was not “involved in an underlying crime related to Russian election interference.” Although not dispositive, Mueller says that “the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.” In a joint statement with Barr, Mueller also made clear that “he was not saying that, but for the [Office of Legal Counsel] opinion, he would have found the President obstructed justice.” Accordingly, I see no reason why Congressional Democrats are so confident that Mueller found otherwise.
1. Why did you suggest that juvenile clickbait from a Russian troll farm was part of a “sweeping and systematic” Russian government interference effort?
The Mueller report begins by declaring that “[t]he Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” A few paragraphs later, Mueller tells us that Russian interference occurred “principally through two operations.” The first of these operations was “a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton,” carried out by a Russian troll farm known as the Internet Research Agency (IRA).
The inference here is that the IRA was a part of the Russian government’s “sweeping and systematic” interference campaign. Yet Mueller’s team has been forced to admit in court that this was a false insinuation. Earlier this month, a federal judge rebuked Mueller and the Justice Department for having “improperly suggested a link” between IRA and the Kremlin. U.S. District Judge Dabney Friedrich noted that Mueller’s February 2018 indictment of the IRA “does not link the [IRA] to the Russian government” and alleges “only private conduct by private actors.” Jonathan Kravis, a senior prosecutor on the Mueller team, acknowledged that this is the case. “[T]he report itself does not state anywhere that the Russian government was behind the Internet Research Agency activity,” Kravis told the court.
Kravis is correct. The Mueller report did not state that the Kremlin was behind the social media campaign; it only disingenuously suggested it. Mueller also goes to great lengths to paint it as a sophisticated operation that “had the ability to reach millions of U.S. persons.” Yet, as we already know, most of the Russian social media content was juvenile clickbait that had nothing to do with the election (only 7 percent of IRA’s Facebook posts mentioned either Trump or Clinton). There is also no evidence that the political content reached a mass audience, and to the extent it reached anyone, most of it occurred after the election.
2. Are you still convinced that the GRU stole Democratic Party emails and transferred them to Wikileaks?
Between the initial July 2018 indictment of 12 GRU officers for the DNC email theft and Mueller’s March 2019 report, some wiggle room appears. As I wrote this month for RealClearInvestigations, Mueller’s report uses qualified, vague language to describe the alleged GRU theft of Democratic Party emails, offers an implausible timeline for when Wikileaks may havereceived the emails from the GRU, and acknowledges that Mueller has not actually established how WikiLeaks acquired the stolen information.
3. Why didn’t you interview Julian Assange?
The uncertainty in Mueller’s account of how WikiLeaks received the stolen emails could possibly have been cleared up had Mueller attempted to interview Julian Assange. The WikiLeaks founder insists that the Russian government was not his source, and has repeatedly offered to speak to US investigators. Given that Assange received and published the stolen emails at the heart of Mueller’s investigation, his absence from Mueller’s voluminous witness sheet is a glaring omission.
4. Why did you imply that key figures were Russian agents, and leave out countervailing information, including their (more) extensive Western ties?
In the report, Mueller goes to great lengths to insinuate—without directly asserting—that two key figures in the Trump-Russia affair, Konstanin Kilimnik and Joseph Mifsud, acted as Kremlin agents or intermediaries. In the process, he omits or minimizes extensive evidence that casts doubt on their supposed Russia connections or makes clear their far more extensive Western ties. Mueller ignores the fact that the State Department described Kilimnik as a “sensitive source” who was regularly supplying inside information on Ukrainian politics. And Mueller emphasizes that Mifsud “had connections to Russia” and “maintained various Russian contacts,” but doesn’t ever mention that he has deep connections in Western intelligence and diplomatic circles.
Stephan Roh, a Swiss lawyer who has previously represented Mifsud, has maintained that Mifsud “is not a Russian spy but a Western intelligence co-operator.” Whatever the case, it is puzzling that Mueller emphasized Mifsud’s “connections to Russia” but ignored his connections to governments in the West. It’s also baffling that none of this was clarified when the FBI interviewed Mifsud in February 2017—which raises a whole new question for Mueller.
5. Why did you indict several Trump officials for perjury, but not Joseph Mifsud?
Adding to the puzzle surrounding Mifsud is Mueller’s revelation that Mifsud made false statements to FBI investigators when they interviewed him in February 2017. (Mifsud was in Washington, DC, for a conference sponsored by the State Department, yet one more Western “connection” that has gone overlooked). If Mifsud really was a Russian agent, then it was always a mystery why he was not arrested then, nor indicted since. And given that Mueller indicted others for lying to the FBI—foremost George Papadopoulos and Michael Flynn—it is unclear why Mifsud was not.
6. Why did you omit the fact that Rob Goldstone’s offer to Donald Jr.—”official documents and information that would incriminate Hillary and her dealings with Russia” as “part of Russia and its government’s support for Mr. Trump”—was “publicist puff” (in other words, a lie)?
Mueller devotes a 13-page section to the infamous June 2016 Trump Tower meeting, where Donald Trump Jr., Jared Kushner, and Paul Manafort met with Russian nationals after Trump Jr. was promised “official documents and information that would incriminate Hillary and her dealings with Russia.” Mueller says that “the meeting showed that the Campaign anticipated receiving information from Russia that could assist candidate Trump’s electoral prospects,” but acknowledges that the Russians present “did not provide such information.”
What Mueller conspicuously does not acknowledge is that the information “that the Campaign anticipated receiving from Russia” was in fact fictional, and not from Russia. The offer came from British music publicist Rob Goldstone, who was tasked with securing the meeting at the request of his Russian pop star client, Emin Agalarov. In an act of what he called “publicist puff,” Goldstone said he about “Russia and its government’s support for Mr. Trump” that would later be widely described as “the smoking gun” for collusion.
Goldstone told me this week that he was disappointed that Mueller chose to omit that critical part of his testimony. “I told them that I had used my PR, puffed-up flourish in order to get Don Jr.’s attention,” Goldstone said. Mueller’s decision to exclude that, Goldstone added, is a “shame… It would have been opportunity to have closure on that.”
7. Did the Trump campaign receive any Russian government offers of assistance from anyone actually acting on behalf of the Russian government?
The Mueller report obscures the absence of contacts between Trump and Russian government intermediaries with ambiguous, suggestive assertions that the investigation “identified numerous links between the Russian government and the Trump campaign,” or “identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign.”
But the cases of Konstantin Kilimnik, Joseph Mifsud, and Rob Goldstone underscore a rather inconvenient fact for proponents of the theory that the Trump campaign conspired with the Russian government: There are zero documented cases of Trump officials interacting with actual Kremlin intermediaries making actual offers of assistance. The only Kremlin officials or representatives shown to interact with the Trump camp in any significant way before the election are the Russian ambassador having routine encounters and a Kremlin assistant who declined Trump lawyer Michael Cohen’s request for assistance on the failed Trump Tower Moscow project.
8. Were US intelligence officials compromised by Russophobia?
Key US officials behind the Russia investigation have made no secret of their animus towards Russia. “I do always hate the Russians,” Lisa Page, a senior FBI lawyer on the Russia probe, testified to Congress in July 2018. “It is my opinion that with respect to Western ideals and who it is and what it is we stand for as Americans, Russia poses the most dangerous threat to that way of life.” As he opened the FBI’s probe of the Trump campaign’s ties to Russians in July 2016, FBI agent Peter Strzok texted Page: “fuck the cheating motherfucking Russians… Bastards. I hate them… I think they’re probably the worst. Fucking conniving cheating savages.” Speaking to NBC News in May 2017, the former Director of National Intelligence James Clapper explained why US officials saw interactions between the Trump camp and Russian nationals as a cause for alarm: “The Russians,” Clapper said, “almost genetically driven to co-opt, penetrate, gain favor, whatever, which is a typical Russian technique. So we were concerned.” In a May interview with Lawfare, former FBI General Counsel Jim Baker, who helped oversee the Russia probe, explained the origins of the investigation as follows: “It was about Russia, period, full stop… When the [George] Papadopoulos information comes across our radar screen, it’s coming across in the sense that we were always looking at Russia… we’ve been thinking about Russia as a threat actor for decades and decades.”
The fixation with Russia was so great that, as The New York Times revealed in January, on top of the FBI’s initial probe in the summer of 2016, the bureau opened a second probe in May of 2017 over whether or not Trump himself was “working on behalf of Russia against American interests.” TheNew York Times story makes no allusion to any evidence underlying the FBI’s concern. Instead, we learn that FBI was “disquieted” by a “constellation of events,” all public:
Mr. Trump had caught the attention of F.B.I. counterintelligence agents when he called on Russia during a campaign news conference in July 2016 to hack into the emails of his opponent, Hillary Clinton. Mr. Trump had refused to criticize Russia on the campaign trail, praising President Vladimir V. Putin. And investigators had watched with alarm as the Republican Party softened its convention platform on the Ukraine crisis in a way that seemed to benefit Russia.
This account is remarkable not just because it shows that the FBI opened up an extraordinary investigation of the president of the United States as agent of Russia based on their interpretation of public events. It also shows that their interpretation of those public events involved several errors—Trump’s July 2016 comment was a joke, and the story about the GOP platform change was overblown (and later undermined in practice when Trump sold the weapons to Ukraine, a move President Obama had opposed).
The fact that so many key officials carry such xenophobic animus toward Russia - to the point where they felt compelled to act on erroneous interpretations of public events - raised legitimate questions about whether their personal biases influenced their professional decisions.
The same could be asked about the influential media and political voices who, despite the absent evidence and sheer absurdity of their conspiracy theory, elevated Russiagate as the dominant political issue of the Trump presidency. Whatever questions they may have left for Mueller, the now former special counsel and savior figure has made clear that he is not the answer.