Robert Mueller’s special counsel was presented to the American public as unimpeachable. From its beginning, a distinct minority in politics and media, including several Federalist writers, were skeptical, citing the special counsel’s past prosecutorial abuses, the past alleged misconduct of its pivotal investigators, and the team’s peculiar partisan makeup.
Once in action, its seemingly limitless powers, heavy-handed usage of such powers, and more questionable if not dubious indictments, far removed from “collusion,” seemed to confirm our worst fears. While there is much within the Mueller report that further suggests this skepticism was well-founded, what is perhaps most probative is what the report omitted.
The following are seven of the most glaring omissions from the collusion section of the redacted Mueller report—since collusion, not obstruction, was the theory from which the investigation stemmed.
1. No Attempt to Grapple with the Investigation’s Troubling Underpinnings
Russiagate in many ways appears to be the fruit of a poisonous tree of epic proportions. Allegations of a treasonous Russian conspiracy led to beyond novel legal theories, including the ludicrous invocation of the Logan Act, pervasive unmasking, spying on a presidential campaign by a political adversary based in part on a salacious and unverified dossier gleaned from sketchy Russian sources by a foreign agent and paid for by an opposition campaign, chicanerous circularity in the warrants backing the spying, the use of informants to perhaps entrap campaign members, a deluge of leaks (some of which were illegal), and much else.
We can layer on top of these malevolent acts the biases, ethical infractions, outright criminality, and clear double standards applied by law enforcement figures common to the Trump-Russia and Hillary Clinton emails investigations.
The collusion section of the Mueller special counsel report barely addresses any of the foregoing. How could such an investigation have any credibility without dealing with any, if not all of these issues?
2. No Discussion of Whether the Special Counsel’s Appointment Was Legitimate
From the special counsel’s inception, former federal prosecutor Andrew C. McCarthy and others have harped on a single fundamental question: Was the special counsel appointed in accordance with Department of Justice (DOJ) regulations?
A special counsel must be appointed based on a criminal investigation. The Mueller special counsel stemmed from a counterintelligence investigation. A special counsel’s scope must be tailored to “a specific factual statement of the matter to be investigated.” The Mueller special counsel order did not seem to adhere to this standard, and in practice, its scope was virtually unlimited.
The Mueller report does not even attempt to address this basic challenge to its legitimacy. Nor does it deal with the arguable conflicts of interest and improper actions taken by those associated with its creation, including former FBI deputy director Andrew McCabe, former FBI director James Comey, and the man overseeing the special counsel, Deputy Attorney General Rod Rosenstein—who, as Sean Davis points out, was a participant, witness, and perhaps target of the investigation himself.
3. No Discussion of Special Counsel’s Perceived Bias
The appearance of conflict based upon the composition of the special counsel team is striking. To highlight the affiliations of just a few members: Andrew Weissmann attended Hillary Clinton’s election night 2016 party and cheered on Obama DOJ holdover and former acting attorney general Sally Yates’ defying of a directive from President Trump.
Jeannie Rhee represented Hillary Clinton in a lawsuit regarding her private emails, as well as the Clinton Foundation, and previously served as a deputy assistant attorney general in the Obama administration. Aaron Zebley defended former Hillary Clinton staffer Justin Cooper, who installed her infamous private email server.
Democrats with deep ties to the administration under which the Russia investigations commenced, as well as Donald Trump’s presidential opponent, predominated in the special counsel’s office. Meanwhile, Mueller, as former FBI director, was a creature of the political establishment, and the institutions from which the investigations sprung. That his report does not grapple with any of the misconduct of the high-ranking individuals behind those investigations in and of itself raises questions.
One would think Mueller would have at least sought to create the appearance of neutrality among the investigators, especially given the anti-Trump biases exposed in the investigations preceding it. Yet Mueller did not, nor did he apparently feel it necessary to address this issue in his report. In fact, he fails even to discuss the circumstances surrounding the removal from his team of its most outspoken Trump hater known to the public, fired FBI agent Peter Strzok.
4. Skating Over the Papadopoulos Predicate for the Collusion Investigations
The Mueller report asserts that the investigation into collusion began when a foreign official (presumably unnamed former Australian Foreign Minister Alexander Downer) told the FBI that Trump campaign advisor George Papadopoulos conveyed to him that the Russians had “dirt” on Hillary Clinton that could help the Trump campaign. There is not even an attempt to grapple with the theory that Papadopoulos was set up, based on sketchy approaches from U.S. government informants and foreign counterparts who seemed to be fishing for validation from Papadopoulos that he had knowledge about this Russian “dirt.”
The focus of Papadopoulos’ contacts is Joseph Mifsud, who is described as “a London-based professor who had connections to Russia…” The Mueller report omits that Mifsud, who made the original claim to Papadopoulos about Russian dirt that Papadopoulos then regurgitated, also had extensive ties to Western intelligence agencies.
Was Mifsud planting this information on Papadopoulos? On whose behalf? Meanwhile, such contacts seem an awfully thin starting point for such a critical investigation. Yet the Mueller report fails to give a thorough explanation for why Papadopoulos’ contacts justified the start of the Trump-Russia investigation.
5. Never Mentions Steele or His Dossier in the ‘Collusion’ Section
Amazingly, in spite of the centrality of former British intelligence agent Christopher Steele’s so-called dossier to former Trump campaign advisor Carter Page’s Foreign Intelligence Surveillance Act (FISA) warrant applications, and the dossier’s dissemination across the highest levels of the intelligence community and law enforcement, neither Steele nor his dossier are mentioned once in the collusion section of the Mueller report. Steele and his “reporting” solely appear in the obstruction section of the report, largely in passing.
The paucity of attention to Steele’s work—and its origin, how and to whom it was disseminated, and what role it played in the “collusion” investigation—smacks of an attempt to downplay its significance.
6. Excluding Relevant Information About Numerous Actors
It is simply stunning the level of exculpatory evidence or at least needed context the Mueller report omits. While Steele and his dossier merit their own section, there are several other significant examples:
- Steele’s benefactor and Fusion GPS colleague, its founder Glenn Simpson, are never mentioned by name.
- Relatedly, critical information about Russian lawyer Natalia Veselnitskaya is missing. In relevant passages about Veselnitskaya and the infamous June 2016 Trump Tower “bombshell” turned dud meeting she led, the Mueller special counsel fails to mention that Veselnitskaya (i) worked with Fusion GPS on behalf of Russian clients, and (ii) met with Simpson the morning of the Trump Tower meeting, as well as the night before and after it. Was the Trump Tower meeting, as journalist Lee Smith has hypothesized, a setup? The Mueller report omits the critical details that would underpin such a theory. Also unclear, and undisclosed is why the Justice Department granted Veselnitskaya special entry to the United States multiple times in 2015 and 2016.
- In discussing Page’s background, the Mueller report notes his contacts with Russian agents, who supposedly tried to recruit him as an asset, beginning in 2013. The report notes that those agents were charged by U.S. authorities in 2015. What the Mueller report omits is that Page effectively served as an FBI asset in helping the bureau make the case against at least one of the agents. Further, one of the agents charged described Page in a secret recording as an “idiot.” Are not these facts relevant when Page was put under FISA surveillance and treated as a traitor?
- The Mueller report describes Felix Sater as a “New York-based real estate advisor” who worked with and lobbied disgraced former Trump personal lawyer Michael Cohen extensively in an effort to execute the Trump Tower Moscow project, touting its political benefits and the ability to garner support from Russian President Vladimir Putin. Not mentioned is Sater’s colorful background: The Soviet Union-born Sater spun a stock swindling conviction into a lengthy career as a major CIA, DIA, and FBI asset, participating in numerous critical operations. Was Sater planted in the Trump organization? While he disputes it, should not the special counsel have included this full background, and sought to remove all doubt?
- The Mueller report ties former Trump campaign chairman Paul Manafort to Russia by way of his prior work for Russian oligarch Oleg Deripaska. Not mentioned: Deripaska had served as an asset to Mueller’s FBI dating back to 2009; he was sought out by senior DOJ official Bruce Ohr and FBI in 2015 to help on organized crime investigations; FBI agents reportedly floated the theory of Trump-Russia collusion to Deripaska two months before the 2016 election, which Deripaska dismissed out of hand. None of this was mentioned in the Mueller report. Why?
- The Mueller report references Roger Stone and Trump campaign advisor Michael Caputo’s contacts with a Russian citizen named Henry Oknyansky. Oknyansky and an associate supposedly came to Stone by way of Caputo seeking to sell “derogatory information” on Hillary Clinton. Stone rebuffed them. Left unstated: Oknyansky, according to federal court filings and 14 visa waivers, has been an FBI informant for nearly two decades. Did he approach the Trump campaign in such a capacity?
- Last but not least, intelligence informant on the Trump campaign Stefan Halper, who made contact with both Papadopoulos and Page, is never mentioned in the Mueller report.
7. Raising Potential Russia Violations about Trump Not Applied to Clinton
The Mueller report explores the novel theory that the infamous June 2016 Trump Tower meeting between senior campaign officials and Veselnitskya could have had campaign finance law implications. While it ultimately declines to assert any such violations, it notes:
[C]andidate-related opposition research given to a campaign for the purpose of influencing an election could constitute a contribution to which the foreign-source ban could apply. A campaign can be assisted not only by the provision of funds but also by the provision of derogatory information about an opponent. Political campaigns frequently conduct and pay for opposition research. A foreign entity that engaged in such research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value.
The above well describes the Hillary Clinton campaign and Democratic National Committee funding of the Steele dossier. On this basis, and considering Rosenstein’s desire to “ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election,” should not the special counsel’s office have investigated the Clinton campaign for campaign finance violations associated with the Steele dossier?
The special counsel appears to have purposely sought to exclude any details pointing to an attempt to frame the Trump campaign by doctoring a Trump-Russia collusion narrative and entrapping campaign members, in spite of the fact there was no collusion, and ample evidence backing such a theory.
It simply ignored the real or perceived deficiencies of the special counsel’s investigation. It also refused to call into question any of the defects associated with the investigations that preceded it.
These takeaways challenge the idea that the special counsel engaged in anything resembling an intellectually honest, objective, and good faith investigation. Rather, it would seem to indicate that wittingly or unwittingly, this was more politicized smear job and de facto coverup.
Then, although “collusion” was the starting point for the special counsel’s investigation, when the Mueller team found none it nevertheless proceeded to obstruction. But there was nothing to obstruct. The Mueller special counsel could have ended its report at Volume I because absent Volume I there could be no Volume 2.
By presenting the collusion section as it did, similarly to the obstruction section, the counsel damaged the Trump administration to the greatest extent possible without affirming its criminality. It seems that Mueller pulled a Comey.
We must have a thorough investigation of the investigators. The growing cacophony of attacks on Attorney General William Barr is a testament to it.