WASHINGTON (Circa) — Since he was appointed nearly a year ago, special counsel Robert Mueller’s investigation of Russian interference in the 2016 election has been described as both remarkably leak-free and a constant source of illegal leaks designed to damage the president, depending on who you ask.
While many reporters and legal experts say Mueller himself has remained consistently tight-lipped about his work, President Donald Trump and his supporters have seized on the latest unauthorized disclosure to challenge the investigation’s integrity. The New York Times reported Monday on more than 40 questions Mueller wants to ask Trump if the president consents to an interview.
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“So disgraceful that the questions concerning the Russian Witch Hunt were ‘leaked’ to the media,” Trump complained in a tweet Tuesday, but there was no indication in the Times report that they were obtained from Mueller’s side.
Fox News obtained the questions independently Tuesday, but neither outlet revealed who provided them or why. The questions indicate Mueller is particularly focused on the possibility that Trump obstructed justice, but despite the president’s claims that none are about collusion, the list includes several inquiries about coordination between his campaign and Russia.
Leaks have plagued the government’s investigation of Russia’s role in the 2016 election since well before Mueller was appointed, a fact that has often concerned President Trump and some members of Congress.
“In the only conversation I’ve had with Robert Mueller, I stressed to him the importance of cutting out the leaks,” Rep. Trey Gowdy, R-S.C., told “Fox News Sunday” after news of impending indictments in Mueller’s probe was leaked last October. “It’s kind of ironic that the people charged with investigating the law and the violations of the law would violate the law.”
Mueller was appointed by Deputy Attorney General Rod Rosenstein on May 17, 2017, but the genesis for his appointment sprung from a leak about a conversation between then-FBI Director James Comey and President Trump about former National Security Adviser Michael Flynn’s contacts with the Russian ambassador during the transition.
A leak to the Washington Post in the December 2016 suggested Flynn lied about those conversations, and the White House later said Flynn was fired for misleading Vice President Mike Pence about them. Flynn pleaded guilty in December 2017 to lying to the FBI about phone calls with the ambassador.
In February 2017, Comey wrote in a memo that Trump had encouraged him to drop an investigation of Flynn’s false statements. After Comey was fired in May 2017, he shared his memos with a friend who provided details of the conversation to the New York Times.
In testimony before Congress weeks later, Comey acknowledged that he facilitated the leak of that information in the hope that a special counsel would be appointed. That gambit seemingly succeeded in pressuring Deputy Attorney General Rod Rosenstein to select Mueller to lead the investigation.
Mueller has reportedly worked hard to prevent leaks by his team of investigators.
“The Special Counsel’s Office has undertaken stringent controls to prohibit unauthorized disclosures that deal severely with any member who engages in this conduct,” Mueller spokesman Peter Carr said in a statement last June.
Regardless, leaks from vaguely-described sources about the special counsel’s probe, avenues investigators are pursuing, witnesses they are interviewing, and Mueller’s strategy have generated many exclusive reports by the New York Times, the Washington Post, and other news outlets.
Among the developments that have been leaked:
Former federal prosecutor Seth Waxman has seen no evidence that these leaks—often sourced to people familiar with the investigation or briefed on it—have come directly from Mueller or his staff. When Mueller has spoken publicly, it has been through criminal complaints and indictments.
“As a prosecutor, you want as little known about what you’re investigating and what witnesses you’re talking to as possible,” Waxman said.
Any information released to the media could enable witnesses to prepare and rehearse their answers. The fact that many witnesses are also speaking to House and Senate investigators and some of their testimony has become public through them further complicates the effort to control the flow of information.
“It’s a pretty difficult process for Mueller right now,” Waxman said.
John Iannarelli, a former FBI special agent and spokesperson, agreed that Mueller is likely unhappy that so much information about the investigation has been made public through unauthorized leaks. It can prevent investigators from getting “the unvarnished truth” in witness interviews, and it can provide the public with an incomplete understanding of what is happening.
“I think one of the problems with leaking the investigation is most people have a view of how an investigation should work and they may ask themselves, why are these questions being asked Unless you’re trained to do investigations, you might not understand,” Iannarelli said.
Still, allies of the president have alleged that leaks are coming from Mueller. A lawsuit filed last fall by Freedom Watch, an organization founded by conservative attorney Larry Klayman, claimed “the only possible conclusion is that the information contained in the leaks is being deliberately disseminated to the media by the only persons with knowledge of such – Mr. Mueller and his staff.”
A federal judge dismissed that suit citing Freedom Watch’s lack of standing to assert damages, but the ruling did not address the plausibility of its leak claims.
In many cases, leaks have come after information was shared with parties outside the special counsel’s office through witness interviews, briefings, or subpoenas. Mueller has no control over what DOJ officials, witnesses, or private attorneys do with such information after they receive it.
“There’s no mechanism where a prosecutor could get an injunction or something and prevent a person from speaking about what they heard in a grand jury,” Waxman said.
Attorneys for former Trump campaign manager Paul Manafort have claimed in court filings that leaks from “individuals within the government” violated rules of evidence and undermined his right to a fair trial on money laundering charges brought by Mueller.
In a motion filed Monday seeking a hearing on the leaks, Manafort’s attorneys identified at least seven articles that included “improper disclosures.” They do not accuse Mueller of leaking, but they point fingers at “government officials and agents with access to or information about the special counsel’s investigation and prosecution.”
Leaks surrounding special counsel investigation are nothing new. In the 1990s, independent counsel Kenneth Starr’s team was frequently accused of politically-motivated leaks, and his former spokesperson faced prosecution in 1999 for allegedly leaking details of grand jury proceedings. The spokesman, Charles Bakaly III, was acquitted in that case.
In 1998, federal Judge Norma Holloway Johnson identified 25 news articles that appeared to show Starr’s team illegally leaked grand jury material to reporters. An appellate court later determined that those leaks did not include information that fell under rules protecting grand jury secrecy.
In an interview at the time with journalist Stephen Brill, Starr admitted providing information about his investigation to reporters himself on background. He claimed doing so was necessary to correct misinformation that he believed could affect the probe if left unanswered.
There has been no indication that Mueller is conducting similar background discussions.
Waxman distinguished Monday’s leak of questions for Trump from other unauthorized disclosures of information about the investigation. Trump presumably knew what questions Mueller’s team told his attorneys they wanted to ask him, so there is no danger of him being tipped off about their plans.
That does not mean the leak was harmless, though.
The New York Times specifically reported that the leak did not come from Trump’s legal team, but Waxman suspects it did come from someone close to the president. He speculated that they are trying to blunt the political impact Mueller’s eventual report on his investigation will have.
“In my opinion, Trump’s lawyers do not feel Mueller is ever going to indict Trump as a sitting president What they’re worried about is a referral to Congress for impeachment,” he said.
In an impeachment proceeding, Trump’s audience would be the American people and the 33 senators he would need on his side to stay in office. If Trump’s lawyers fear Mueller’s ultimate report will offer damaging conclusions about the president’s behavior, this leak gives him an opportunity to get out ahead of it and defuse the questions.
“It’s not a bad strategy to continue to try to put out the negative information now and either sanitize it or, more to the point, people just become numb to it,” Waxman said.
In this case, though, most of the topics Mueller wants to discuss are obvious to anyone who has followed the Russia probe in the media. Waxman expects Mueller would have more in-depth additional questions.
“What I would characterize it as is the very tip, tip, tip of the iceberg,” he said.
According to Iannarelli, the disclosure of these questions may also send a troubling message to other witnesses about the integrity of the process and the confidentiality of interviews with Mueller.
“If you wish to have people cooperate in the future, they may not want to cooperate knowing everything they tell you could be made public,” he said. “If the questions are being leaked, what else could be leaked?”
Rather than a sign of any shortcomings or missteps in Mueller’s investigation, Iannarelli saw the prevalence of leaks in this case and others in recent years as a sign of broader cultural changes.
“We have had much more leaking now than we have seen in the past,” he said. “Part of it is a societal shift where we used to regard information as need to know, but in this current era people regard it as everyone’s right to know.”