The process, investigative steps, and execution of Special Counsel Robert Mueller’s investigation have always been somewhat of a mystery. While the Mueller Report lays out what was done and many of the Special Counsel’s findings, questions still remain on a number of issues, including when Team Mueller knew Carter Page FISA warrants were fraudulent and when they determined there was no criminal conspiracy between the Trump Campaign and Russia.
Not surprisingly, the Department of Justice has not provided adequate answers, even with the occasional release of documents. The DOJ typically doesn’t like to release information on prosecutorial decisions or investigative steps. Try a FOIA request and find out for yourself. Add to this an understandable reluctance to divulge the extent Special Counsel John Durham’s investigation into the “activities directed at the 2016 presidential campaigns,” which include but are “not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III.”
More specifically, there have been questions of whether Special Counsel Mueller’s team investigated matters outside its known authority. Before we answer that question, let us provide context.
The Scope Memos
Robert Mueller was appointed Special Counsel by then-Acting Attorney General Rod Rosenstein on May 17, 2017. Rosenstein’s letter set forth the scope of Mueller’s authority, which included:
The May 2017 appointment letter was specifically worded to keep the public in the dark on the extent of Mueller’s investigation (or, perhaps more accurately, the investigation that Mueller inherited). A subsequent memorandum, dated August 2, 2017, revealed that it had been “worded categorically in order to permit its public release without confirming specific investigations involving specific individuals.”
In fact, Mueller had been appointed to investigate the following (redacted parts not included):
A few months later, in October 2017, Special Counsel Mueller requested, and was given, additional authority to investigate Michael Cohen, Richard Gates, Roger Stone, Bijan Rafikian and Ekim Alptekin (a Foreign Agent Registration Act case involving those two members of the Flynn Intel Group) and other unnamed individuals (one of whom is suspected to be Michael Flynn, Jr.).
Scope Memos: Limitation or Suggestion?
As the Special Counsel's investigation dragged on, and as the allegations of Trump/Russia collusion turned up no criminal activity on the part of Trump (as relayed to Trump lawyer John Dowd by Robert Mueller on March 5, 2018), its team looked elsewhere in search of a crime. Any crime.
According to one former DOJ official, some members of the Special Counsel team began to focus on an inquiry into how members of the Trump administration, current and former, handled classified information. Not whether classified information was shared with Russia or those alleged to have been foreign agents (like Carter Page). Simply whether they had mishandled or leaked classified information.
Their inquiry also looked at the reporting on H.R. McMaster by name familiar to many readers: Mike Cernovich.
Back in the February 2017, President Trump appointed H.R. McMaster as National Security Adviser. That summer, Cernovich reported that Eric Ciaramella was appointed to be McMaster's personal aid. (Ciaramella would later be alleged to have leaked Trump's call with the Ukrainian President to Alexander Vindman.) Cernovich discussed Ciaramella's ties to the Obama administration, particularly Susan Rice, and the internal concerns that he had been leaking classified information. He also accused McMaster of trying to purge Trump loyalists from the NSC and orchestrating leaks about Trump to his allies. For this he was an investigative target.
We were further advised that FBI 302s (interview summaries) relating to these matters have been kept under wraps by the DOJ. This checks-out, considering the Special Counsel Office 302s that the DOJ still refuses to release to the public in ongoing FOIA litigation.
We’re curious whether this will be addressed in Special Counsel Durham’s public report. Not that an investigation outside Mueller’s scope - or “purview” - is technically criminal, but rather it’s more of an abuse of power. An investigation of handling of classified information wasn’t in Mueller’s original jurisdiction as set forth in 28 CFR § 600.4(a), and we have no documentation that he requested this additional authority from Rosenstein. Maybe Durham is more focused on Andrew Weissmann and other members of Team Mueller wiping their phones. Or perhaps Durham is focused on the FBI agents who went from Crossfire Hurricane to work with Mueller. Who really knows at this point.
Cernovich, to his credit, isn’t surprised by all this. He provided this statement:
“I was tipped off years ago that an unlawful and unconstitutional investigation had been opened against me due to my reporting. I tweeted about it publicly at the time, and said I would gladly go to jail to protect my source. Fascists within the Department of Justice also wanted revenge because I sued to unseal records involving Jeffrey Epstein. These records proved Epstein was protected by the highest levels of government. I stand by my reporting, which was confirmed by subsequent events and also later reporting by the New Yorker. I will always risk my own safety to protect sources.”
We reached out to the Department of Justice, asking if they denied this reporting. Their response in full: “We appreciate your inquiry; however, we do not have a comment.”
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