Mueller Investigation Criticized in Congress for ‘Casting Too Wide of a Net’

Deputy U.S. Attorney General nominee Rod Rosenstein waits to testify before the Senate Judiciary Committee March 7, 2017 in Washington, DC
Getty/AFP/File WIN MCNAMEE

During a House Judiciary Committee hearing on Wednesday, Rep. Lamar Smith (R-TX) voiced a widespread concern about Robert Mueller’s investigation of Russian interference in the 2016 election by asking Deputy Attorney General Rod Rosenstein if the scope of the investigation has widened far beyond its original charter.

“Mr. Rosenstein, I am concerned that the special counsel may be casting too wide of a net, that he is trying to catch all the fish in the ocean, not just the Soviet sharks,” Smith said. “If the special counsel were to obtain information not directly related to Russian interference with the election and he wanted to investigate that further, would he need to obtain your authority to expand the investigation?”

“Yes, he would,” Rosenstein replied. “There are a lot of media stories speculating about what the special counsel may or may not be doing. I know what he’s doing. I’m appropriately exercising my oversight responsibilities, and so I can assure you that the special counsel is conducting himself consistently with our understanding about the scope of his investigation.”

Rosenstein disputed Smith’s contention that the probe has been greatly expanded by noting that the public order that launched the investigation did not precisely specify what it would be investigating, and his “ongoing discussions” on the topic with Mueller have been conducted in private. He said these conversations were more about “clarification” than expansion.

One reason for concern about the expansion of Mueller’s investigation is that some of its biggest newsmaking developments have concerned events that had nothing to do with the election, or which occurred after it was over. This seems like a very broad horizon for a probe of alleged foreign interference and domestic collusion in a race that ended on November 8th, 2016.

USA Today, for example, produced a very exhaustive timeline of the investigation—so exhaustive it begins with Donald Trump visiting Russia for a beauty pageant in 2013!—and the actual election occurs just halfway down the page.

Perhaps the most notorious post-election event to figure in the investigation is former National Security Adviser Michael Flynn’s meetings with officials from foreign countries, including Russia. This was breathlessly misreported as proof Trump ordered Flynn to hook up with the Russians to sabotage Hillary Clinton’s inevitable victory, but in one of the most astonishing fake news scandals of the age, it turned out Flynn was actually receiving perfectly normal instructions from President-elect Trump to open channels with foreign governments after the election.

The reason this all came up is that Flynn pled guilty to charges of making false statements to the FBI about his contacts with the Russian ambassador. The communication that got him in trouble occurred on December 29, 2016. It was carried out at the request of a senior Trump transition official, and was intended to ascertain how various nations planned to vote on a U.N. Security Council resolution about Israel. The fake news that falsely portrayed this as pre-election collusion tanked the stock market.

Of course, making false statements to the FBI is bad (unless your last name happens to be “Clinton,” or you work for a member of the Clinton family) but transition activities happen after the election, so they would seem beyond the scope of an investigation into pre-election skulduggery.

“It remains unclear why the Obama Justice Department chose to investigate Flynn,” Andy McCarthy observed at National Review. “There was nothing wrong with the incoming national-security adviser’s having meetings with foreign counterparts or discussing such matters as the sanctions in those meetings. Plus, if the FBI had FISA recordings of Flynn’s conversations with Kislyak, there was no need to ask Flynn what the conversations entailed.”

McCarthy went on to speculate that Flynn was asked about these post-election conversations to set him up for “prosecution on a process crime,” either to pressure him into rolling over and giving up information more relevant to Mueller’s probe, or because the probe is fizzling and somebody had to get charged with something to avoid embarrassment.

If, as McCarthy contended, it is “becoming increasingly palpable” that there “was no actionable, conspiratorial complicity by the Trump campaign in the Kremlin’s machinations,” then the special counsel investigation could be accused by its most cynical critics of broadening its scope to justify its continued existence.

Another noteworthy development was the charges against former campaign officials Paul Manafort and Rick Gates, along with former campaign adviser George Papadopoulos, which the Washington Post described as “striking for their breadth, touching all levels of the Trump campaign and exploring personal financial wrongdoing by those involved, as well as what appeared to be a concerted effort by one campaign official to arrange a meeting with Russian officials.”

The breadth is indeed striking because the charges concern Manafort and Gates working for a Russia-aligned political party in Ukraine long before working for the Trump campaign. Even the Washington Post’s excited initial report notes that the period of the activities they were indicted for covered nearly a decade, and while it “stretched into 2016,” it “did not seem to involve the Trump campaign.”

Also, during part of that period, they were working with a firm owned by Clinton-connected Democratic Party power player Tony Podesta, but his involvement seems to mark the outer limits of how far the Mueller investigation is willing to stretch.

It was a bit further than the media wanted to go as well, because they quickly lost interest in Manafort and Gates to focus on Papadopoulos, who was at least connected with the Trump 2016 campaign when he took the actions he would later misrepresent to FBI investigators—to wit, meeting with people who had Russian connections and were offering “dirt” on Hillary Clinton in the form of thousands of hacked emails, months before the hacking of the Democratic National Committee’s computer system became public knowledge.

The problem is that Papadopoulos was a fringe character in the Trump campaign, a young man with a dubious resume described as “hardly a big fish” by the Atlantic. More senior campaign officials viewed him with documented “discomfort and skepticism,” and he appears to have been hoodwinked by his dodgy Russian contacts. Barring any huge revelations from the special counsel’s investigation, Papadopoulos looks less like an operative in a collusion scheme than a comically inept political grifter who really wanted to collude and make himself a big shot, but couldn’t figure out how it was done.

Back at National Review, Andy McCarthy thought Papadopoulos’ plea deal was “more exculpatory than incriminatory of Trump,” since it paints a portrait of bullshit artists mutually exaggerating their importance to take advantage of each other in a sad little drama on the periphery of the presidential campaign. Moreover, if Papadopoulos’ fumbling contacts with these ersatz Russian provocateurs prove anything, it is that the Trump campaign was not colluding with Russian spooks because they did not have access to the goods dangled before Papadopoulos. He ended up charged only with making false statements about when his activities occurred, rather than participation in a grand conspiracy.

Then there’s Mueller’s interest in Deutsche Bank, which was inaccurately reported by multiple media organizations as the special counsel subpoenaing the president’s account information. Eventually, these reports were revised to describe a subpoena concerning “people or entities close to Mr. Trump.”

Virtually all reporting on these subpoenas devolves into speculation about what they “may” imply or “might” mean to President Trump, who previously indicated his personal finances were off-limits to the special counsel. NPR’s report on the state of the investigation last week had nothing new about the mysterious subpoenas, but mused that “probing possible financial crimes dating back to before Trump took office and unrelated to Russia could be perilous politically,” because Trump aides and congressional Republicans have “argued that such a move would be a step too far for Mueller.”

NPR circled back around to Flynn and a possible obstruction-of-justice case, which might be embarrassing or even perilous for the White House, but again has very little to do with Mueller’s ostensible mandate to uncover collusion with Russia. Indeed, Russian collusion hardly even comes up in discussions of where the investigation might go next, although collusion between government employees to sabotage the presidency is suddenly a very hot topic. That’s why Republicans are asking the same questions about wide nets and abuse of investigatory authority that Democrats ask when special counsels investigate them.

However, those who expect the investigation to collapse under its own weight should look carefully at the order that empowered Mueller. It was exceptionally broad, covering not only “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”—which covers a lot of individuals—but also “any matters that arose or may arise directly from the investigation.”

It also gives Mueller latitude to go after anything he deems “necessary and appropriate,” even if it’s not technically criminal activity. This can include virtually anything that might give foreign operatives leverage over anyone connected with the Trump campaign. A good deal of the information necessary for outside observers to judge whether Mueller has exceeded his mandate is not available to the general public.

All of which means that Rep. Smith’s question to Deputy AG Rosenstein was fair, and Rosenstein’s response was reasonable. There is no particular reason to think Mueller has widened his net, because it was enormous already. The investigation was about much more than finding hard evidence of deliberate collusion with Russian agents from day one, and it could do immense damage to the presidency without finding a shred of such evidence after years of searching.

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