Jurisprudence

There Might Be More Mueller-Related Prosecutions After All

Robert Mueller, then director of the FBI, speaks during a news conference on June 25, 2008, in Washington.
Alex Wong/Getty Images

On Thursday, Attorney General William Barr released a redacted version of the Mueller report. As previewed by Barr, the report did not recommend a criminal case against President Donald Trump or any more indictments against those in his orbit. However, deep within its appendices the report lists 14 criminal referrals that were made by the Special Counsel’s Office. Twelve of the 14 are currently redacted, but they may not redacted forever: On Friday, House Judiciary Committee Chairman Rep. Jerry Nadler issued a subpoena to Barr for the full, unredacted report along with all of the investigation’s underlying materials. While this could lead to a drawn-out court fight, it also means we may soon learn some of the biggest remaining mysteries of the Mueller report—what, if any, additional crimes he thinks may have been committed that have not yet been charged.

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Here’s how the report itself describes those criminal referrals in Appendix D:

During the course of the investigation, the Office periodically identified evidence of potential criminal activity that was outside the scope of the Special Counsel’s jurisdiction established by the Acting Attorney General. After consultation with the Office of the Deputy Attorney General, the Office referred that evidence to appropriate law enforcement authorities, principally other components of the Department of Justice and the FBI. Those Referrals, listed alphabetically by subject, are listed below.”

So what is a “referral” within the criminal justice system, and what does this mean for the 12 secret Mueller referrals? A criminal referral is as it sounds: It is a notice to a specific law enforcement organization of a potential crime that may merit pursuing. This notice can be given formally by sending over a case report or more informally through a phone call or email. The formality of the referral may reflect the weight given to a potential criminal act (i.e., a more formal referral may accompany more serious or significant crimes), but regardless, all referrals are taken seriously by the Department of Justice.

Referrals generally will trigger some level of initial investigation that may require a report to “main justice” (the higher-ups in Washington) about the actions taken in response. According to Bennett Capers, a professor of criminal procedure at Brooklyn Law School and a former federal prosecutor, a referral is far more than just sharing evidence with a colleague.

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“A referral is the equivalent of saying, ‘We think there may be criminal activity based on the evidence we’ve seen, but you have jurisdiction,’ ” Capers told me. “It’s almost like handing somebody a case on a silver platter where all they have to do is dot the I’s and cross the T’s.”

This holds true for the two referrals that were not redacted in the Mueller report: (1) a referral against Michael Cohen for wire fraud and campaign finance violations; and (2) a referral within the DOJ against Greg Craig and others related to failing to register as foreign agents of Ukraine.

Here’s what Mueller says about the Cohen referral:

During the course of the investigation, the Special Counsel’s Office uncovered evidence of potential wire fraud and FECA violations pertaining to Michael Cohen. That evidence was referred to the U.S. Attorney’s Office for the Southern District of New York and the FBI’s New York Field Office.

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And here’s what he said about the Ukraine referral:

During the course of the FARA investigation of Paul Manafort and Rick Gates, the Special Counsel’s Office uncovered evidence of potential FARA violations pertaining to [redacted text] Gregory Craig, Skadden, Arps, Slate Meagher and Flop LLP (Skadden), and their work on behalf of the government of Ukraine. After consultation with [the National Security Division of the Department of Justice, or NSD], the evidence regarding Craig [redacted text] was referred to NSD, and NSD elected to partner with the U.S. Attorney’s Office for the Southern District of New York and the FBI’s New York Field Office. NSD later elected to partner on the Craig matter with the U.S. Attorney’s Office for the District of Columbia. NSD retained and handled issues related to Skadden itself.

We know a lot about the Cohen referral, which has led to a guilty plea, a lengthy prison sentence, and congressional testimony. The Craig investigation, meanwhile, resulted last week in an indictment against Barack Obama’s former White House counsel for work issues related to this Ukraine lobbying work.

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What do we know of the fully redacted referrals and why they were not released? While the redactions could have a number of reasons, such as national security or to protect a confidential source, the referral summaries appear to have been withheld from the report as they are part of an ongoing investigation. According to internal guidelines, the DOJ does not publish or comment on an ongoing investigation prior to criminal indictment by a grand jury. The policy also restricts the publishing of initial findings or evidence summaries such as those found in a criminal referral. The same rules would apply in the case of a referral where no further action has been taken or where the prosecutor has decided not to pursue charges. This is done both to avoid damaging the reputation of potential targets before an investigation has concluded as well as to protect the investigation itself. These internal guidelines likely explain both the fully redacted referrals as well as redacted text from the Ukraine referral. In that referral, language was redacted from the list of defendants, suggesting that one or more individuals may still be under investigation or may not have been charged. This doesn’t mean that Congress will not be able to get its hands on this material if it initiates a proper inquiry into the president or the Justice Department—it just means that it will require a messy court fight.

As for the referrals themselves, they could be made to various law enforcement organizations local, state, and federal. So where are we most likely to see these cases go? The report describes referrals made to “principally other components of the Department of Justice and the FBI,” which suggests that they will stay within the federal system rather than be referred out to the states. Referrals made, however, can be passed forward. As we saw in the Ukraine case, the organization that receives the referral—in that case the NSD—may choose to refer the case on or may seek consultation or partnership with other law enforcement organizations.

So do referrals point to future indictments? While referrals are taken seriously, they do not always lead to criminal charges. The prosecutor on the case ultimately has the power to choose whether charges are justified, and their discretion is near absolute. Their decision involves a calculus beyond just guilt or innocence, weighing factors such as the likelihood of conviction as well as the interests of justice more broadly. With such broad discretion, not every prosecutor reaches the same conclusion on how or whether to prosecute a referral.

What does this all mean for the remaining 12 referrals from the Special Counsel’s Office? We know that the referrals will likely stay secret until someone involved is actually charged with a crime—unless, perhaps, the cases implicate one of Congress’ oversight roles. We know that referrals were made mostly internally with the DOJ and FBI, and we can expect that each referral will likely be taken seriously by federal prosecutors. From there, it is uncertain what will happen. Ultimately, while there is a great deal we don’t know about the 12 redacted referrals, we should expect to see more criminal charges on the horizon—and we may even see that material sooner if Congress moves forward with an impeachment proceeding.