Mueller’s counterintelligence investigation, explained

What is the counterintelligence investigation?

Mueller’s report is very narrow: it only answers (1) did Russia interfere in our election and did Trump associates enter into an agreement to cooperate with the hacking of stolen materials (eg Podesta’s emails); (2) did Trump obstruct justice? He was only investigating potential crimes. Anything that could not be criminally charged was not in the report.

Mueller’s backers say he did exactly what he was hired to do, within the narrow confines of the special counsel regulations: investigate how the Russians attacked the 2016 election, figure out whether any Americans helped them, and charge any crimes he found along the way.

Mueller was not operating under the independent counsel law that expired in 1999, which allowed Kenneth Starr to examine and report on conduct by President Bill Clinton that wasn’t clearly criminal.

So the counterintelligence investigation would be everything else. It would answer questions like: Does a foreign entity have leverage over Trump? IMO, this is the most important question. There’s no way to charge Trump with a crime for someone else having leverage over him, so it wouldn’t be in the report. Other stuff in the counterintelligence investigation would be basic intelligence like:

• Are they having an affair or do they engage in other embarrassing sexual acts? Do they have the kind of access or information they can trade?
• Do they engage in suspicious travel or have improbable contacts?
• Do they have major character weaknesses like greed or feel slighted by their own government?
• Are they saying or doing things of a political nature that are hard to explain?

An example specific to Trump:

[W]hen Mr. Trump boasted to the Russian foreign minister and ambassador in the Oval Office that he had fired the F.B.I. director, it raised only the possibility — a “circumstantial inference,” as it’s called in counterintelligence — that the president was wittingly working on behalf of the Russians. This apparent desire to please these officials indicates a high level of Russian influence and, in the context of other actions that pleased Mr. Putin, like his sudden decision to withdraw American troops from Syria — could support a modest to high level of confidence in that conclusion.

As Lawfare explains, the counterintelligence report was always going to be the juicier and more significant one:

The special counsel’s prosecution and declination decisions tell only a small part of the story that all Americans, and their elected representatives, should care deeply about. After all, criminal culpability is not the standard by which someone’s fitness to be elected to the office of president of the United States, or in this case to remain in that office, should be judged. As some observers have correctly explained in recent days, this distinction goes to the heart of the difference between a criminal investigation, on the one hand, and a counterintelligence investigation, on the other.

Chairman of the House Intelligence Committee Adam Schiff is focusing on the counterintelligence aspect (see more below):

“I certainly agree that the counterintelligence investigation may be more important than the criminal investigation because it goes to a present threat to our national security — whether the president and anybody around him are compromised by a foreign power,” Schiff said. “That’s not necessarily an issue that can be covered in indictments.”

In fact, most FBI counterintelligence investigations don’t result in criminal charges, experts say, because they tend to involve secret intelligence that either can’t be used in court or doesn’t add up to proof beyond a reasonable doubt. If the FBI assesses that a government official is compromised by a foreign adversary, officials often will quietly remove that person from a sensitive role or wall him or her off from classified information.

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Where is it now?

I disagree with the premise that people are ignoring the counterintelligence portion of the investigation. There have been many articles written about it, but we have so little to go on that there’s not much to say about it. This is complicated by the fact that counterintelligence is almost never made public in contemporary times – we aren’t likely to know the specific contents until much later. Only very specific committees are typically given access.

The House Intelligence Committee has a right to know all the details. Chairman Schiff is attempting to get the underlying evidence of Mueller’s investigation that would reveal some – or most – of the counterintelligence facts. The DOJ has an obligation, under 50 U.S.C. § 3092, to keep the congressional intelligence committees currently and fully informed of all intelligence activities. In April, Schiff revealed that his committee had not been receiving these briefings for over a year and a half. “We were getting periodic counterintelligence briefings up until the point where James Comey was fired,” Schiff said.

That’s what prompted him to subpoena all the underlying evidence of Mueller’s investigation. You may remember, the DOJ recently began complying with that subpoena – at least in part. The DOJ began providing the committee with 12 categories of counterintelligence and foreign intelligence material about a week ago.

Additionally, at the end of March it was reported:

Two senior U.S. officials told NBC News on Monday that the FBI is prepared to brief congressional leaders on the counterintelligence findings of special counsel Robert Mueller’s investigation… The officials said they expect the FBI to brief the so-called Gang of 8 — the leaders of the House and the Senate and the chairmen and ranking members of the intelligence committees — in closed session. No briefing has been scheduled, a third U.S. official familiar with the matter said, but one of the officials said it could happen within the next 30 to 60 days.

I have not seen an update on that yet.

The answer to the question, where is it now, is therefore unknown. There is a good chance it is still an open investigation being conducted by the FBI. In fact, the counterintelligence probe was always under the purview of the FBI – when Mueller was special counsel, the FBI simply embedded some agents in his office to collaborate. When Mueller concluded his investigation, the counterintelligence portion likely returned to being an FBI-only inquiry.

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What next?

This is my opinion: The Democrats should stop focusing on getting the unredacted Mueller report. Ultimately, there isn’t going to be anything game-changing in the redacted portions. Instead, they should focus on bringing in the direct witnesses for live public testimony. Ideally, IMO, this would be done in an impeachment inquiry. But it doesn’t have to be.

By bringing in these witnesses, the House can ask questions that get to the root of the counterintelligence issues – questions that won’t be answered by the Mueller report for the reasons I explained above.

Benjamin Wittes explains this very well (it’s a must read):

The goal would be to focus public attention on the president’s abuse of the intelligence and law enforcement communities and his individual conduct with respect to Russia. Such hearings could develop new information. They could also enrich our understanding of the existing factual record. They would serve to publicly validate and elucidate Mueller’s findings and, critically, to shift those findings from the voice of Mueller himself to the voice of the president’s closest aides. Perhaps most importantly, they would create a sustained vehicle for focusing on Trump’s conduct—which is, and needs to be, the central issue.