The report produced by special counsel Robert Mueller, even in redacted form, clears up a number of mysteries. Russia wanted Trump. Trump worked with Russia. And Trump lied, tampered with witnesses, and withheld evidence while fighting to destroy the entire investigation. But strangely enough, one of the things that the report does not clear up is also the simplest: Just what was Robert Mueller charged with investigating? In fact, the report seems to make that question more confusing.
Included within the appendix of the report is the original letter authorizing the office of the special counsel. That letter, and the authority it provides, is well-known. It instructs Mueller to continue the investigation already begun by the dismissed FBI Director James Comey, specifically into “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation.”
The broad scope of that May 17, 2017, letter may sound all-encompassing. However, it was already known that this was not the last word when it came to what Mueller was instructed to pursue. On August 2, 2017, Deputy Attorney General Rod Rosenstein issued a second memo that overrode the original note, saying, “The May 17, 2017 order was worded categorically in order to permit its public release without confirming specific investigations involving specific individuals. This memorandum
provides a more specific description of your authority. The following allegations were within the scope of the Investigation at the time of your appointment and are within the scope of the Order.”
Unfortunately, when that letter became available in 2018 as part of the trial of Trump campaign chair Paul Manafort, it was redacted to the point where it was impossible to see what Mueller’s real scope actually was. Surprisingly, this letter is not included in the report—or at least, is not in the portion of the report not currently redacted. But what is found in the report is the news that there was a third memo, this one issued on October 20, 2017. It’s these two still unpublished memos that set the real limits on the special counsel’s authority.
Why was Mueller able to address crimes committed by Paul Manafort years before he joined the Trump campaign, but Trump’s bank fraud and money laundering are unaddressed? The answer would appear to be in those memos that neither the public, nor the Congress, has seen.
On Page 11 of the report, there is a description of the investigation under the header “The Special Counsel’s Investigation.” That section begins by repeating much of the original authorizing letter, defining some of the scope allowed by the special counsel regulations; it then addresses the two missing memos:
The Acting Attorney General further clarified the scope of the Special Counsel's
investigatory authority in two subsequent memoranda. A memorandum dated August 2, 2017, explained that the Appointment Order had been "worded categorically in order to permit its public release without confirming specific investigations involving specific individuals." It then confirmed that the Special Counsel had been authorized since his appointment to investigate allegations that three Trump campaign officials-Carter Page, Paul Manafort, and George Papadopoulos — "committed a crime or crimes by colluding with Russian government officials with respect to the Russian government's efforts to interfere with the 2016 presidential election." The memorandum also confirmed the Special Counsel's authority to investigate certain other matters, including two additional sets of allegations involving Manafort (crimes arising from payments he received from the Ukrainian government and crimes arising from his receipt of loans from a bank whose CEO was then seeking a position in the Trump Administration); allegations
that Papadopoulos committed a crime or crimes by acting as an unregistered agent of the Israeli government; and four sets of allegations involving Michael Flynn, the former National Security Advisor to President Trump.
In a further description of the October memo, the report notes that it provided specific authority to address "the pertinent activities of Michael Cohen, Richard Gates, [REDACTED], Roger Stone, and [REDACTED]." It also included authority to look at Cohen’s “use of Essential Consultants LLC” to receive funds from “Russian-backed entities," as well as to look into allegations against then-Attorney General Jefferson Sessions.
What is not in these authorizations is anything concerning the Trump Organization’s activities prior to the campaign. So while Mueller does mention actions related to Trump’s visit to Moscow in 2013 for the Miss Universe Pageant, those events only appear in connection with Russia’s attempt to use a supposed “pee tape” to influence Trump’s actions during the campaign. There was apparently no effort expended to look into Trump’s previous efforts to establish himself in Moscow, or Trump’s sale of buildings and condominiums to Russian oligarchs at inflated prices in what appears to be a money laundering scheme identical to that used by Manafort, or Trump’s lying on loan applications to defraud banks, or Trump’s partnership with Russian-backed firms to fund projects both in the United States and elsewhere.
It’s not that Mueller found no evidence of crimes in Trump’s finances—it’s that he didn’t look. With the exception of the Moscow project that was underway during the campaign, and the lies and efforts to cover up those actions, the Mueller report largely stays outside of Trump’s supposed “red line” around his finances. Even though it’s now clear that Trump lied to Deutsche Bank on multiple occasions. Those lies resulted in large losses for the bank and would appear to be clear criminal fraud, but they are not mentioned in the report from Mueller.
Of course, that may not be completely true. There are still a dozen unidentified individuals or entities whose actions have been referred elsewhere. It may well be that behind one of those blocks of black ink is information on the Trump Organization, Trump himself, or members of Trump’s family that was passed along to some other group of prosecutors for a closer look. But such information is certainly not in the report as currently passed along to Congress and the public.
It’s important that we see those memos from August 2, 2017, and October 20, 2017, in part because that would make it clear just what areas Mueller was authorized to investigate, but also because it would reveal whether there were areas from which the special counsel was specifically told to stay away.
Did Mueller stay clear of the “red line” because that was his sense of the limits of his authority, or because it was explicitly made clear that he could not go there? Trump’s first statement about the “red line” was on June 19, 2017—after the special counsel’s office was established, but before either of the defining memos written by Rod Rosenstein. While Congress is demanding unredacted versions of the report, it should also demand unredacted versions of Rosenstein’s memos so it can determine if that’s a line Mueller drew for himself, or if it was drawn for him.