Adapted from “TRUE CRIMES AND MISDEMEANORS: The Investigation of Donald Trump,” by Jeffrey Toobin. Copyright © 2020. Available from Doubleday.
In the hours after President Donald Trump suddenly fired FBI Director James Comey, on May 9, 2017, his former subordinates in the J. Edgar Hoover Building wondered if there would be more shoes to drop.
Would Trump dismiss more people? Would he shut down the investigation of his campaign’s ties to Russia? Would the President demand that the Bureau cease its investigation of Michael Flynn, Trump’s onetime national security adviser?
In response to these concerns, the FBI took extraordinary – and previously undisclosed – steps to protect its investigations.
From Comey’s first meetings with Trump, shortly after he won the presidency, the FBI director developed misgivings about his new boss’ behavior – about Trump’s demands for “loyalty,” and even more unnerving, his request that the Bureau drop its investigation of Flynn. Comey’s conversations with Trump had been so distressing that the director started writing up contemporaneous summaries of their interactions and sharing them with a handful of top officials at the Bureau. Now, suddenly, Comey was out – and the question arose of what to do with his memos about his conversations with the President.
The initial decision fell to Andrew McCabe, who was Comey’s deputy and now the acting director of the FBI. McCabe thought Trump’s behavior was sufficiently problematic to be investigated for possible obstruction of justice, and he told his team to open a criminal case.
Given the wild pace of events, McCabe couldn’t be sure how long he’d last as director, so he wanted to lock down as much evidence as possible. Most important, he told the investigating agents to place Comey’s memos in SENTINEL, the FBI’s case management software. McCabe knew that once documents were inside the system, they were virtually impossible to remove. With Comey’s memos in the system, the investigators were certain to have access to them – even if McCabe himself would eventually be gone.
Indeed, FBI officials even went a step farther. Once McCabe became director, Bureau employees grew so concerned that Trump would try to shut down the investigation that they secreted at least three copies of key documents, including Comey’s memos, in remote locations around the Bureau. This was to make sure that in the event Trump directed an end to these inquiries, the documents could always be preserved, located, and shared.
On May 17, eight days after Trump fired Comey, Rod Rosenstein, the deputy attorney general, announced that he had appointed Robert S. Mueller III, the director of the FBI from 2001 to 2013, to serve as special counsel. Rosenstein gave Mueller a broad mandate – to investigate ties between the Trump campaign and Russia, as well as any matters that arose from his investigation. Mueller’s team ultimately took possession of Comey’s memos, and they proved to be important evidence in the report Mueller filed two years later. As Mueller later learned, and included in his report, Trump seriously contemplated firing the special counsel on several occasions – so the initial suspicions at the FBI, about the President’s real intentions, were well-grounded.
More recently, though, the suspicions have generally run the other way. Over the past several months, the President has mobilized his administration and its supporters to prove that the FBI’s investigation was flawed, or worse, from its inception. William Barr, Trump’s attorney general, has directed John Durham, the US attorney in Connecticut, to conduct a criminal investigation into the circumstances leading to the investigation, to determine whether FBI officials or anyone else engaged in misconduct at the outset. Republican Sen. Lindsey Graham of South Carolina, the chairman of the Judiciary Committee, has also convened hearings on the investigation’s origins. The working assumption of these inquiries appears to be that Trump was wronged by overzealous pursuers.
The truth, however, is precisely the opposite. The story of the Mueller investigation is in great measure a story of prosecutorial restraint. And this was true, too, in the satellite investigation that touched on Trump in the Southern District of New York. As both investigations were unfolding, there was a great deal of speculation that prosecutors were scrutinizing Trump’s financial history, including his tax returns.
But the truth, first reported here, is that neither Mueller nor the Southern District prosecutors sought out Trump’s financial records or obtained his tax returns, as they had the opportunity to do.
Why not? Why didn’t prosecutors obtain this evidence? After all, it was long known that Trump had business ambitions in Russia; he had been attempting to build a tower in Moscow since the 1980s. Indeed, in 2015, while his presidential campaign was already underway, Trump signed a letter of intent to develop a building in Moscow. (The letter was non-binding, and no money changed hands, but the agreement was clear about Trump’s ambitions.) At the same time, one of the core questions of the Russia investigation was why Trump was so solicitous of Vladimir Putin, the Russian leader. Trump not only praised Putin repeatedly, but he encouraged Russia’s efforts to support his 2016 campaign against Hillary Clinton.
As Mueller discovered, Russia went to extraordinary lengths to do just that. The Internet Research Agency, a nominally private company in St. Petersburg with close ties to Putin, conducted a social media campaign for Trump and against Clinton. And in an even more sinister and damaging way, the military intelligence wing of the Russian Army hacked emails from the Democratic Party and John Podesta, Clinton’s campaign chairman. Their release, through WikiLeaks as an intermediary, greatly damaged Clinton’s chances against Trump.
Trump’s high regard for Putin – and the Russian government’s efforts on Trump’s behalf – raised the obvious question of whether there were financial motives at work. What were Trump’s business ties to Russia? Did Russia have a financial stake in Trump’s candidacy? Did Trump have financial interests in Russia? Neither Mueller nor the Southern District ever found out.
Why Mueller held back
According to members of Mueller’s staff, the special counsel’s main reason for forgoing a financial investigation of Trump was somewhat abstract. It concerned the legal concept of state of mind – specifically, the difference between corrupt intent and motive. Most federal crimes, and certainly all the ones that Mueller was investigating, are what are known as “intent” crimes. In order to be found guilty of an intent crime, a defendant must know that what he’s doing is wrong. For prosecutors, it’s usually pretty easy to prove intent – a defendant’s attempts at secrecy, or to lie about or cover up his actions, usually suffice to prove intent.
If there was ever going to be a prosecution of Trump, the prosecutors believed, there would be no problem proving intent.
Motive is related to intent, but a much broader concept. A defendant’s motive to commit a crime could include financial gain, jealous rivalry, or an unhappy childhood. When bringing a criminal case, prosecutors often find it helpful to prove a defendant’s motive, but the law does not require it. It’s necessary only to prove intent. Mueller’s prosecutors thought Trump’s financial records and tax returns went to possible motive, not intent, so they thought they didn’t need the evidence.
There was another factor. As a special counsel, Mueller’s jurisdiction was limited by his charter from Rosenstein. Rosenstein had directed Mueller to investigate “any links and/or coordination between the Russian government and individuals associated with” the Trump campaign. Trump’s financial records were not directly relevant to that issue. In order to pursue the financial records, and especially the tax returns, Mueller would have had to ask Rosenstein to expand his jurisdiction.
Rosenstein never denied any of Mueller’s requests, but Mueller couldn’t be sure that he could justify this expansion to Rosenstein. Even in fraud investigations, it’s unusual for Department of Justice prosecutors to seek their subjects’ tax returns, especially when, as here, Mueller had no evidence that Trump had cheated on his taxes. (Of course, Trump refused to disclose his tax returns voluntarily, as all presidential candidates had done for more than a generation; this was suspicious behavior by Trump, but not actual evidence that he committed a crime.)
Mueller thought that if he tried to expand his mandate to look at Trump’s possible financial misdeeds, that would look like a fishing expedition, which he was determined to avoid. So, Mueller and his team never found out the nature, if any, of Trump’s financial ties to Russia.
Michael Cohen and the ‘Deep State’
The Southern District of New York, the US Attorney’s office in Manhattan, was only involved in the investigation because of an act of restraint by Mueller and his team.
Early in Mueller’s tenure, his staff became aware of possible criminal activity by Michael Cohen, who worked as Trump’s personal attorney. Shortly before the 2016 election, Cohen had orchestrated a $130,000 payment to Stormy Daniels, an adult film actress, in return for her silence about a brief relationship she had with Trump. This was a possible illegal campaign contribution. (Trump has denied the affair.)
Cohen had also engaged in questionable financial dealings on his own. Early in 2018, Mueller decided that these areas were outside his jurisdiction and shared the evidence with the Southern District of New York. The Manhattan prosecutors, in turn, went after Cohen aggressively, obtaining search warrants for his office and home in April of that year.
At that time, many news accounts suggested that the Southern District prosecutors, who have a reputation for independence and aggressiveness, presented a major threat to Trump. This was also because the Manhattan prosecutors were not limited by any sort of directive from Rosenstein. They could follow the evidence wherever it might lead.
Surely, the speculation went, the Southern District would use its investigation of Cohen to look into Trump’s financial dealings, including his tax returns. Trump himself, who reacted with fury to the raid on his lawyer’s properties, seemed to be worried about that very prospect.
Still, what Trump didn’t know, and what the breathless news coverage of the Cohen raid didn’t recognize, was that the Southern District’s investigation of Michael Cohen … was an investigation of Michael Cohen. It was not, and never would be, an investigation of Donald Trump.
The prosecutors in New York showed the same caution and restraint that Mueller’s team displayed in Washington. It’s almost part of the DNA of experienced prosecutors to tread carefully beyond areas where they can identify specific criminal behavior. This was why Trump’s repeated invocations of the Democratic affiliations of Mueller’s staff, while understandable, missed the point. (Most of Mueller’s lawyers had made campaign contributions to Democrats over the years.)
More important than the political inclinations of Mueller’s team was their professional training as prosecutors, and those honed instincts limited their ambitions. The same was true for the prosecutors in New York. Notwithstanding the rumors (and the hopes of Trump’s political opponents), the Southern District prosecutors never sought or obtained Trump’s tax returns or subpoenaed his financial records, at Deutsche Bank or anywhere else.
Their reluctance to delve into Trump’s behavior or finances was heightened, too, by the Office of Legal Counsel opinions, in 1973 and 2000, barring prosecution of a sitting president. If the Southern District couldn’t bring charges against Trump anyway, the thinking went, there was no point in examining his behavior – especially since none of it, on the surface, looked criminal.
Trump, on the other hand, saw the Cohen raid as more than just another unfair attack on him, but rather as part of a continuum of harassment that he had experienced since he won the election. The President believed that the deep state – or, as he sometimes called it, the “Crooked and Demented Deep State” – had mobilized against him from day one.
Comey of the FBI turned on him even before the inauguration. John Brennan, Obama’s director of the CIA, became a harsh critic on MSNBC. (“Deep state henchman,” Trump called Brennan.) Attorney General Jeff Sessions’ recusal opened the door for Rosenstein to appoint Mueller, who in turn set the “13 angry Democrats” against him. As for Don McGahn, the “lying bastard” who was his White House counsel, he was Senate Majority Leader Mitch McConnell’s man, an establishment figure, a favorite of The New York Times; all that, in Trump’s view, was why McGahn turned against him.
With the Cohen investigation, Trump thought that the Southern District was also revealing itself to be a deep state outpost. Trump had fired Preet Bharara, the previous US attorney there, after promising to keep him on. As President, Trump then took the unusual step of interviewing the man who became his replacement, Geoffrey Berman. (Presidents rarely interview US attorney candidates.) But Berman recused himself from the Cohen investigation (for still-unexplained reasons), which meant that the case was supervised by his deputy, Robert Khuzami, who had been an Obama-era appointee to a top job at the Securities and Exchange Commission.
In other words, as the President saw it, the two Trump appointees who should have been protecting him — Sessions and Berman – had recused themselves and left him to the mercies of the deep state. Of course, implicit in Trump’s theory of the deep state was that he had never done anything to deserve the scrutiny of the FBI, the CIA, or the Justice Department. For Trump, his own blamelessness was a given.
In truth, for all of Trump’s complaints about the “witch hunts” that pursued him, he had much to be grateful for in how the Mueller and Southern District investigations were conducted. It was true that in the early days of the Russia investigation, FBI officials took extraordinary steps to protect their investigation – and their evidence – from the possibility of presidential interference.
But once the investigations began in earnest, both Mueller and the Southern District refused to take the most aggressive, and arguably appropriate, steps to dig into Trump’s history. If the President’s financial records and tax returns contained any secrets, or incriminating information, the prosecutors never found them – because they never looked.