Follow the Clues - Special Counsel Robert S. Mueller III’s Probe

By: John H. Austin, Jr

There is an ongoing political speculation about the appropriate scope of Special Counsel Robert S. Mueller’s investigation, particularly when recent indictments did not implicate anyone in Trump’s administration on conspiracy with Russia to interfere in the presidential election. Political pundits, vocal critics, and everyday Americans sometimes lack the knowledge of the nuts and bolts of how federal investigations work.

 The initiation of a federal criminal investigation is based on a set of facts that warrants examination. The threshold to initiate such action is based on context, circumstances and is made on a case-by-case basis — and investigators are trained to follow the facts wherever they lead.  In a practical sense, we must consider the very definition of an investigation: where you start is not where you may end. 

Let’s review what’s happened to date.  General Michael Flynn, National Security Advisor, Paul Manafort, Trump’s former campaign chairman and his deputy, Rick Gates, are the closest to the administration to be charged — for transgressions such as lying to federal officials, fraud, and money laundering.  Recent charges tying thirteen Russian nationals and two companies to interfering in the election have set off a new round of criticism.  Some are claiming Muller is investigating matters outside the scope of his mandate.  But this point of view is misguided and misinformed. Mueller’s probe into Russian actions and subsequent indictments is consistent with how federal criminal investigations develop.

The flow of information from interviews, witnesses, forensic evidence, physical evidence, and electronic surveillance impacts the direction of the case. Covert arrest often lead to the most compelling intelligence discovery and signal a broader strategy to incorporate undercover tactics to secure new information. Depending on the nature of case, defendants who are charged early can be used to gather additional incriminating evidence without the knowledge of the targets.  For example, George Papadopoulos — advisor to the Trump campaign — pled guilty in October 2017; but wasn't arrested until January of 2018.  Anyone engaged in nefarious behavior who encountered Papadopoulos during the period between his arrest and plea should be concerned. Often, a defendant’s cooperation provides investigators insight into other players, motives, and methods of operations — and, helps the prosecution fine-tune their focus. For example, the arrest of Gates followed with additional charges against Manafort.  Are the two related?  Did Gates provide the government additional information that led to the superseding indictment? Without inside knowledge of the case, it is not certain, but it’s not a stretch to believe Gates’ arrest and the additional charges against Manafort are related.

As Mueller’s team pursues leads, if viable targets of opportunities emerge, he is compelled to act upon then. His authority to act on new evidence is within the scope of authority granted by Deputy Attorney General Rod Rosenstein. 

In the letter by Deputy Attorney General Rod Rosenstein creating the Special Counsel, he lays out the scope of Mueller’s authority. “The Special Counsel is authorized to investigate…including: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.C. § 600.4(a).”

Thus far, the indictments related to Mueller’s investigation seem consistent and well within the scope of his charge. Further, it is important to understand the way this investigation has publicly unfolded is consistent with how federal criminal investigations are conducted. Given the current outcome of the investigation, it will not be surprising if more indictments follow.