Professor Andrew Kent wrote a blog post for Lawfare regarding the probe led by Robert Mueller into Trump-Russia issues.
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.
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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?
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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.
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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.
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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.
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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.
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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.”