The Mueller Investigation Guessing Game

The special counsel provides so much information, yet we still understand so little, Benjamin Wittes says.

Benjamin Wittes speaks during a House Judiciary Committee hearing.
Benjamin Wittes speaks during a hearing before the House Judiciary Committee on Capitol Hill on July 17, 2008.
Alex Wong/Getty Images

On this week’s episode of my podcast, I Have to Ask, I spoke to Benjamin Wittes, a senior fellow at the Brookings Institution and the editor in chief of Lawfare. Over the past year, Wittes has become one of the most prominent commentators on the Robert Mueller investigation into the Trump campaign and Russia, thanks in part to his friendship with James Comey and to his time reporting on Justice Department. He has also emerged as a strong critic of Trump and the Republican Party.

Below is an edited excerpt from the show. In it, we discuss how to read the tea leaves of the Mueller investigation, why people are too critical of Comey, and why even Trump hasn’t changed his positive opinion of the national security state.

You can find links to every episode here; the entire audio interview is below. Please subscribe to I Have to Ask wherever you get your podcasts.

Isaac Chotiner: Are you thinking about the Mueller investigation differently than you were several months ago?

Benjamin Wittes: I’m not sure that I am, except that it has definitely progressed. Mueller has played his cards very close to the vest. We know very little about what he is thinking or planning other than what he’s done. There have been more actions since a couple months ago, and therefore we have more data points to read, more tea leaves. But we still have essentially no information about his thinking, his plans, or his directional momentum, other than what we can read. So there’s definitely more information to play with, but it is still consistent, potentially, with a pretty wide range of possible theories of the case.

Do you see ways in which the Mueller team is trying to keep its hand hidden, and there are signs they’re not revealing things that they could be revealing, and there are strategic reasons for that? Or they’re just doing what they can, and it is what it is?

It’s a bit of both. The setting in which they’ve decided to be communicative is the indictment of the 13 Russians, where they gave a lot of information. And they really used that indictment to tell a story. In addition, with both the [George] Papadopoulos and [Michael] Flynn statements of offenses, they kind of judiciously let out information about subject matter about certain meetings and content and things that were said. Beyond that, they’ve said essentially nothing. And their other documents have been exceedingly spare in terms of the communicative nature of them. And I do think that’s on purpose, that they’re trying to say as little as possible, except when they say a lot.

And is the reason that you would try to say as little as possible that this is what prosecutors would do in any case? Or is this about the sensitivities here involved—the sense that Trump may try to further interfere with the investigation?

It’s a little of both. So No. 1, standard prosecutorial practice is to be quite judicious with investigative sensitive information. And yes, there are prosecutorial leaks in the federal system. They’re not especially common. And good prosecutors don’t do it very much. So that’s the baseline condition.

In addition, I think there are a number of other factors here that all kind of push in the same direction. One is that Mueller follows Comey, whom the president has been publicly tweeting about as a leaker. And though that’s actually quite untrue, it is something that would make you, if you were in Mueller’s shoes, very careful not to do anything that would give ammunition to the president to discredit the investigation.

Before Mueller was appointed, we saw incredible leaks from the bureaucracy. And I think the conventional wisdom about that has been that people in the bureaucracy were worried about what would happen to this investigation, so they were leaking the stuff. And then when Mueller was chosen, he took over and put a lid on that.

The corollary to that would be nothing about the indictment of these 13 Russians leaked, presumably because they do not have Washington defense lawyers who are talking to reporters. Is that your sense too, that the leaks have largely stopped because people have confidence in Mueller and that the leaks we see are largely from defense lawyers?

Defense lawyers are one of the frequent sources of information, but they’re not the only one. Broadly speaking, I think there are three, maybe four, groups of sources for the overwhelming majority of these stories. One is, as you say, the defense bar. The second is the witnesses themselves. Now, a lot of the witnesses are people who work in the White House, people who work in the campaign. And these people, for lots of other reasons, have independent relationships with a lot of the reporters in question. So they talk. Assuming the information’s not classified, there’s often not much ethical impediment to talking to a reporter about stuff that happened that you were involved in or stuff that you’ve heard around. No. 3 is Congress. There are multiple congressional investigations of many aspects of these things, and Congress is—this will be shocking—not the most leak-proof organization in the world.

And then the fourth element, where I think a certain amount of stuff is coming from, is other people who get wrapped up in stuff. So any investigation like this involved a number of ancillary witnesses who get pulled into things because they’re there, because they interacted with people. And these people have no obligations of confidentiality, and, by the way, the investigation can be quite disruptive to their lives. And they may have no particular reason to keep anybody’s confidence, and so they talk.

What about the bureaucracy leaking and now leaking less?

The question of whether the leaks in the bureaucracy have calmed down because of increased confidence as a result of Mueller is a complicated one because a lot of information that would previously have been available has kind of dried up at this point. So in the late months of the Obama administration and early months of the Trump administration, there was this flood of intelligence reporting about the Russia operation. And it shocked people. And a certain amount of that information leaked, most famously the Flynn-Kislyak conversation. One possibility is that your hypothesis is correct, and everybody’s like, “Bob Mueller will take care of it. I don’t need to leak this now.” But another possibility is that the shocking things that developed in that period kind of leaked in relatively early, and they have not been replaced by other streams of similarly shocking information because that is now being handled by the investigation. It’s not a sort of ongoing reporting stream that results from the intelligence community’s assessment that President Obama ordered late in 2016.

There have been news reports that the president would especially be set off by the Mueller team looking into his business and financial interests. Is there a conscious sense of that if we’re going to indict the president’s son-in-law or look into his businesses, you would wait until the end to do this, that we would pursue other lines of inquiry first, in case our investigation is shut down?

I don’t know the answer to that question. I am not in touch with anybody in the special counsel’s office.

I think there are two possible ways for the special counsel’s office to think about that question. One is to say our job is to be total straight shooters and do our job with no strategic calculation as to the nature of the people we’re dealing with. And the president has certain powers that no other subject of such an investigation would have, like the power to pardon everybody involved, or the power to fire us, or the power to obliterate the office that we work for. But we actually can’t control any of that, and it’s wrong for us to take any of that into account in the way we do our jobs. What our job is is to ignore that, treat all that as noise. And if he exercises those authorities, that’s the political system’s responsibility to respond to that, not ours. That would be one way to think about it.

The other way to think about it is to say that inherent in conducting an investigation like this is the task of protecting the investigation, given what Jim Comey called in his congressional testimony the “nature of the person”—you don’t want to forget who you’re dealing with. And you want to behave in a way that maximally protects the investigative equities and the structure and independence of the investigation from predations by the president and his people. And that means making certain strategic calculations.

There was an FBI investigation before Robert Mueller took over. Would it sort of automatically revert to being an FBI investigation again if Mueller was fired?

I think it would. … So it is at this point a series of indicted cases, among other things. If you fired Mueller but didn’t get rid of his office, there would still be an office of special counsel that would then lack a head, and somebody would presumably be sort of acting in that capacity, and maybe you’d have to appoint another one. That’s what happened to the special prosecutor’s office in Watergate. That’s how we got Leon Jaworski. That did not work out well for Richard Nixon. If, on the other hand, he sought to rescind the regulation, get rid of the office in its entirety, that would not cause the cases that the office has garnered pleas in or issues indictments in to disappear. They would revert to the Justice Department. So you would have to then figure out what bureaucratic part of the Justice Department would inherit the different parts of the investigation. That’s a mess, and I don’t think the FBI would just stop investigating it because the structure in which they were working had vanished. So I think it’s very much an open question, and again, it depends on the sort of mechanics by which you tried to effectuate this.

In hindsight, how do you think James Comey dealt with the investigation into Hillary Clinton and the emails, and the investigation that, I guess, had started by that point of Trump campaign associates and some connection to Russia?

These are matters that are currently before an inspector general, who has investigated a number of areas related to this energetically and is apparently nearing the end of his process and getting ready to release reports on it.

That said, I think the FBI was put in an impossible position in 2016. And I have never argued that there was no basis to fault decisions that were made in the bureau, including by Comey. And in fact, I was one of a relatively small number of people who raised public questions about the handling of the Clinton email matter back in July of 2016 when Comey released his statement. I, actually, at the time wrote a piece saying that I didn’t dissent from his decision to do it, but I was uncomfortable with it.

And all that said, I think he was in an impossible position and that there was no good way to handle it. And I think the way he chose to handle it backfired in a big way, whether or not, by the way, it actually contributed to the electoral outcome. The fact that large numbers of people think that it did is itself a problem. I also think, by the way, that the attorney general and the deputy attorney general deserve a lot of responsibility here that people don’t think about much. But the attorney general was the one who allowed the candidate’s husband to get on her plane and then did not recuse herself. And the deputy attorney general and the attorney general both were in a position to direct the FBI director not to make the public statement that he did. And they didn’t do it.

The basic problem here was that we had a grenade in the room, and we have one person who has, to a fault, a tendency to fall on every grenade and take responsibility for all kinds of things that are probably other people’s departments. And on the other hand we had a bunch of people who ran from the room. And that’s a toxic combination.

What about the Trump angle? There was infamously a piece in the New York Times, I believe, on Oct. 31, 2016, saying the FBI saw no link between Trump and Russia. Do you think that there was a mistake made there? Harry Reid, I believe, released a letter saying that Comey had a lot of information about this, that he was not talking about the way he was about the Clinton email investigation. Do you think that’s a fair critique, or are people misunderstanding that?

I think that critique is wrong. You say, “Why did you handle one one way, and why’d you handle one the other way?” That’s an error. And it’s an error for two reasons. One is that Comey announced the closing of the Clinton investigation in July, when he thought the investigation was finished.

The Trump investigation had just begun. You don’t talk about an investigation that is just starting, right? So they were in completely different places. Now, the wrinkle here, of course, was that the perception that the Clinton investigation was done turned out to be wrong because they ended up in October having new information that they felt they had to take steps on. But when they issued those statements and made the comments that they made, they did it because they thought they were done with the investigation. So if there’s an appropriate time to say what your investigative conclusions and actions are going to be, surely it is when you’re done.

The Trump investigation starts in July, according to Comey’s later testimony and a number of other documents. And generally speaking, when things are in an early, very preliminary stage, that’s precisely when you don’t talk about them. The second reason, and the most important reason, is that one of these investigations was a counterintelligence investigation. These are the most sensitive investigations in the United States government. The Trump investigation started with an allied foreign intelligence service giving us information about George Papadopoulos. The New York Times has since reported that it was the Australians. So when people, including Harry Reid, say that you should be going public with the material that you are working with, with respect to Trump, what they’re saying is that you should blow a FISA [warrant], which was the Carter Page FISA, and you should release information about an early phase counterintelligence investigation. And that is simply an unthinkable proposition—and, by the way, it remains unthinkable when Devin Nunes turned around and did it a year and a half later. So people like me who are really angry about what Devin Nunes did, I don’t think it would have been any more appropriate had Harry Reid done it.

You gave a quote for a New York magazine profile, where you said, “I don’t lead any kind of resistance. I keep warning all of our newfound admiring readers that I’m not part of that world. You know, the day we have sane government again, including, by the way, sane conservative government, I’m going to go back to being an apologist for the national-security state. And I won’t even have to go back to it! Because that’s actually what I am.”


Has Trump getting elected and ostensibly being in charge of the national security state made you think differently at all about the power it should have, knowing that this was possible?

That is an extremely complicated question. And the very short answer to that is no. I have been arguing for 10 years that the stakes associated with well-crafted, strong national security authorities, particularly in the counterterrorism and counterintelligence and espionage space, are much lower for a democratic society than people in the human rights and civil liberties communities and much of academia believe. In other words, you can have responsible detention regimes for al-Qaida figures. You can have strong NSA collection programs. You can have a drone strike program. And that the consequences for democratic government, of doing that, are actually not that we are on a slippery slope to 1984.

Now, we now have truly dangerous, menacing, presidential leadership. And I am one of the people—I think the record will reflect this—who most accurately predicted what Donald Trump would actually do in office using presidential authorities. And I did it during the campaign. And one of the things that he has not done is abused any of these authorities. We haven’t had any roundup of people for detention purposes under military authorities. We haven’t seen drone strikes or the use of terrible killer robots. We haven’t seen abusive surveillance authorities. The NSA isn’t part of any of Donald Trump’s abuses. What has Donald Trump abused? He has abused not the marginal coercive powers of the federal government that are well-regulated in statute and law, supervised by courts. He hasn’t abused any of those authorities.

He’s abused the core powers of the presidency, the basic discretionary judgments. I will hire this person and fire this person. I will or won’t allow my family to use the government as a nesting spot. I will or won’t allow the Justice Department to remain, for enforcement purposes, apolitical. I will or will not abuse the power of presidential speech. These are not at the margins of presidential authority. They’re the core powers of the president. And it’s interesting to me that in all the debates, all the debates we have about marginal counterterrorism authorities over the last post-9/11 era, they’re all about the marginal powers of the federal government. And we’ve lost sight of what a truly abusive human being does with the powers of the presidency, which is abuse the core discretionary authorities of it.

I guess the response would be, No. 1, we haven’t had a major terrorist attack. And No. 2, Trump is someone who is incompetent and has pettier grievances rather than large-scale grievances, and that if someone different were to take the oath of office, the things that we’re talking about could actually be more of a concern.

Let me turn the question around and say: When you look at the federal government today, what scares you more? The Justice Department or the NSA?

The Justice Department, but I would just add that could be my own biases, the person I am, and it could also be partially the fact that I think we’re dealing with a particular kind of authoritarian personality, rather than a different kind of authoritarian personality. But the point is to take—

I want to suggest that there’s another reason, which is that the NSA operates under a comprehensive statutory scheme with respect to its ability to interact with you. We have a lot of experience with the fact that those rules are basically complied with, kind of neurotically. And we have seen zero evidence that Donald Trump has tried to change those rules. And by the way, it would be a heavy lift for him to try to change those rules.

I think he has an instinct for the soft spot. And the soft spot, the place where you could actually do tyrannical stuff in the United States government, is actually not the intelligence community. It’s not an accident that the intelligence community has been something he has had to attack. And it’s because they live by rules, and he hates rules.