With the first public criminal charges expected to come out Monday, this year’s biggest political story—the former FBI director Robert Mueller’s investigation of Russian interference in the 2016 presidential election—will enter an important new phase, guided not just by whispers and Twitter wars but by written indictments and the rules of federal evidence.
While we don’t yet know precisely what the charges will be or who the target is, there have been plenty of hints about the unfolding case—and there’s plenty of context we have to understand what Mueller’s actions might ultimately mean for our country and President Trump’s administration.
Here are five rules of federal investigations to keep in mind as you read about the new charges and think about their implications:
1) The FBI takes down whole organizations. The charges due Monday in Mueller’s investigation are almost assuredly only a first step in what could be an very long and extensive grand jury investigation.
Only rarely does the FBI end up charging a single individual; it’s simply not worth the time and resources of the federal government to go after individuals in cases outside of rare instances, like say, terrorism. Institutionally, the FBI’s modus operandi and DNA is to target and dismantle entire whole criminal organizations—that’s why federal cases usually take so long: The agency starts at the bottom or periphery of an organization and works inward, layer by layer, until it’s in a position to build a rock-solid case against the person at the top.
This investigative method has been the heart of the FBI’s approach since the 1980s, when it and the Justice Department—led by an era of aggressive and brilliant prosecutors like Louis Freeh, Rudolph Giuliani, and Michael Chertoff—began to attack La Cosa Nostra in New York. The FBI relied then on a then-new tool, the Racketeer Influenced and Corrupt Organizations (RICO) Act, to attack and dismantle entire mafia families, charging dozens or scores of suspects in a single case.
The approach, then and now, has been almost always been similar: Work on peripheral figures first, encourage them to cooperate with the government against their bosses in exchange for a lighter sentence, and then repeat the process until the circle has closed tightly around the godfather or criminal mastermind. There’s no reason to think that this investigation will be any different.
In fact, members of Mueller’s investigative team cut their teeth on a who’s who of the biggest Justice Department targets of the last quarter century, taking that “organization” approach to cases like Enron (prosecutor Andrew Weissmann led the task force), al-Qaeda (aide Aaron Zebley helped investigate the 1998 embassy bombings before 9/11), and organized crime (prosecutor Greg Andres helped investigate the Bonnano family in New York, as well as the $8 billion Ponzi scheme led by Texan financier Robert Allen Stanford, who’s now serving a 110-year prison sentence).
Weissmann—who was spotted Friday outside the grand jury room—is considered an expert on “flipping witnesses,” encouraging people to testify against their colleagues. In the 1990s, he led the case against mobster Vincent “the Chin” Gigante, from the Genovese crime family, with the help of turncoat witnesses.
2) Don’t hold your breath for “collusion.” For all the talk of Russian collusion, there isn’t really a federal crime that matches what the press, critics, and Capitol Hill lawmakers have been calling collusion, a word that refers legally to a narrow segment of antitrust law. And there’s almost zero chance anyone will be charged with treason, a charge that’s only available to use against enemies in a declared war.
Instead, nearly all charges that stem from this case—based, at least on publicly available tea leaves—are likely to focus on targeting individual crimes reflecting aspects of the complex web of Russian influence in 2016, rather than a neatly-tied-up-with-a-bow conspiracy. Early rounds of charges may even likely focus on business dealings far removed from the questions of the 2016 election.
Expect to see garden-variety white-collar crimes—charges like money laundering, mail fraud, wire fraud, and “structuring,” (arranging financial transactions to avoid federal reporting requirements)—as well as the possibility of some more exotic charges like violating the nation’s election laws or the Computer Fraud and Abuse Act, or there’s a general catch-all known as 18 USC Sec. 371, “conspiracy to commit offense or to defraud United States.”
There’s also the crime of being an unregistered foreign agent—a charge known inside the Justice Department as a “FARA violation,” after the Foreign Agents Registration Act. A FARA violation is typically the FBI’s go-to way to charge espionage and foreign intelligence officers—the cases are rare and only a few agents in their careers ever have a chance to work a FARA case—but we’ve already seen Paul Manafort and Michael Flynn retroactively register as “foreign agents” this year, showing that they have some legal exposure in this realm.
As the case unfolds, there will almost assuredly also be charges that, in many ways, form the foundation of many federal cases: obstruction of justice, perjury, or lying to federal agents (a.k.a. “making false statements”). These charges are particularly common in special counsel-type investigations—and can end up targeting people unrelated to the original criminal act. During Patrick Fitzgerald’s investigation into the leak of Valerie Plame’s name, for example, it was Vice President Cheney’s chief of staff, Scooter Libby, who ended up in the hot seat for obstruction and perjury. Similarly, Marine General James Cartwright was charged with lying to federal investigators as part of the investigation into the Stuxnet leak. These charges—perjury, obstruction, false statements—are often used as leverage to seek a witness’s cooperation (see No. 4).
This approach and the reality of federal criminal law means that the full picture of what happened in 2016—and even before—is likely still years away from being understood.
3) There are many threads, including some likely unrelated to others. Based on what we know so far, it appears that Russia’s information operation against the 2016 presidential election might have been less of a top-down conspiracy and more of an opportunistic case of many different arms of the Russian octopus—the strange mix of politicians, intelligence officers, oligarchs, criminals, and professionals who surround the Kremlin—working to exploit every potential opportunity.
Just in the last week, we’ve seen how expansive the Mueller investigation might be inside the nondescript Washington, D.C., office where his team has been assembling evidence for months. He’s evidently covering not just the Trump Tower meeting (coordinated with the Kremlin?), but digging into Paul Manafort’s finances (his realtor testified before the grand jury last week), looking at Michael Flynn’s work with Turkey, and the social media advertising and targeting that went on as well. Add in the hacking of the DNC and John Podesta’s email, which had already been the subject of an FBI investigation before the election even unfolded—and which might represent an entirely separate Russia nexus through Wikileaks—or what we’ve now learned about the attempted penetration of state-level voting machines, and it’s clear that this case will evolve for many months to come. And all of those individual cases or investigative avenues might prove ultimately unrelated to the Big Question: Did President Trump attempt to obstruct justice with his firing of FBI Director James Comey?
4) The first charges are only a starting point—but don’t necessarily wait for the dramatic Perry Mason-style trial. The indictments handed down by a grand jury that lead to a target’s arrest are rarely the charges the target ultimately faces in a courtroom. Federal prosecutions—particularly complex, still unfolding ones like Mueller’s—often go through many legal iterations, with so-called “superseding indictments” either adding additional charges down the road as more information becomes known or, as trial nears, dropping ancillary charges in order to zero in on the most potent and provable ones.
However, as much as Law and Order may have taught us otherwise, very very few cases go to trial—generally more than 90 percent of federal cases are settled via a plea bargain. That’s in part because the government is heavily incentivized to take the bird-in-hand of a lesser charge for a guaranteed success, but also because the government has tremendous leverage in a criminal negotiation, from the length and location of a prison sentence (much better to be in the low- security FCI Danbury prison in Connecticut than it is to be in the high- security FCI Terre Haute in Indiana) to what assets the government might try to seize (think: “Nice house your family lives in—shame if something happened it”) to what the impact of a unfolding case might be on family members. (You have an aunt who overstayed her visa? Maybe the government promises to overlook that. Your son or wife was also in on the scheme? Maybe you plead guilty right now to a heftier charge to stop the investigation of your family.) Weissmann used this tool to effect in the Enron trial, leveraging the charges against former Enron CFO Andrew Fastow and his wife to encourage Fastow to testify against Enron CEO Jeffrey Skilling.
Pay particular attention if you start seeing Mueller’s team filing not criminal indictments but “criminal informations,” which are effectively criminal charges done with the cooperation of the target: That means the suspect is cooperating with prosecutors and has likely worked out a deal to provide testimony or evidence against others, or has negotiated the charges in advance and intends to plead guilty quickly.
It’s clear, too, that Mueller is coming at this investigation with an even broader lens: One of the Justice Department veterans he recruited to the team, Michael Dreeben, is known for being the government’s smartest mind on appellate cases—that is, how a case will play out down the road on appeal—and he’s argued 100 cases before the Supreme Court, putting him in a rare class of lawyer who can meld not just the evidence necessary for a trial but also the legal theory and jurisprudence necessary to sustain that case through years and rounds of appeals. There are signs, too, that Mueller is even thinking through how presidential pardons might shape his case.
5) Bob Mueller is after federal crimes, not political problems. It’s important to understand that the task before Mueller’s team of FBI agents and prosecutors isn’t to investigate and make public the full truth of the 2016 election. They have a much more narrow task: To determine whether there are definable criminal violations that amount to federal felonies or misdemeanors and that can be proven in a courtroom beyond a reasonable doubt based upon the federal government’s standard rules of evidence and criminal procedure.
Sally Q. Yates—the acting attorney general fired by President Trump for refusing to implement the so-called Muslim ban—has argued since leaving office that Mueller’s standard should not be the nation’s only test of what happened in 2016. There are any number of behaviors and actions that might fall short of a definable, provable felony that we, as a democratic society and a sovereign nation that eschews foreign involvement in our politics, might find troubling behavior in our commander-in-chief and the leader of one branch of government. But it’s not entirely clear right now how the country might see such behavior or act upon it.
How, if Mueller uncovers such behavior, it remains an open question how he might convey this information to the public and political process. He might write a formal report, akin to what Ken Starr did during his probe into the Monica Lewinsky affair during the Clinton years or what the 9/11 Commission did following its investigation, and turn that over to the Justice Department to present to Congress. Or he might not. When Mueller, working in private practice after his stint as FBI director, was tasked with investigating the NFL’s handling of the Ray Rice domestic violence case, he defined his mission as narrowly as possible—examining only the NFL’s handling of a video showing the original assault, rather than getting into the larger questions of, say, whether the League coddles abusers.
This latter category of “political problems” ultimately ends up being the purview of Congress—and it will be almost inseparable from the conversation of whatever criminal charges and information stems from Mueller’s investigation. At each stage, we will see debates in the media and political circles: Are there political high crimes and misdemeanors that warrant action via presidential impeachment? Unfortunately, the Capitol Hill investigations have had a difficult road this year, and there seems little appetite for bipartisan action and a forthright debate about the 2016 election. The House investigation by the Intelligence Committee was quickly undermined by bizarre behavior by chair Devin Nunes and now even the Senate investigation, which at least kept up the appearance of a bipartisan effort, appears to be faltering.
Which is a long roundabout way of saying: Monday’s charges are only the beginning of what’s sure to be a complex and deeply partisan process. And, if this weekend’s release of half-century-old files related to JFK’s assassination is any guide, we, as a country, may never feel like we fully understand what transpired in 2016.