As Jack Smith, a special counsel for the Justice Department, closes in on the end of an investigation into former President Donald Trump’s possession of hundreds of classified documents, his team has made use of the work of another special counsel who previously investigated Trump’s ties to Russia, according to a person familiar with the investigation.
A lengthy section of the Mueller Report, which examined ties between Russia and Trump’s 2016 presidential campaign, has been instructive to the current inquiry’s prosecutors, who are viewing Trump’s actions around federal requests to return the classified documents as part of a broader pattern, the person said.
Robert Mueller, a former director of the FBI, released his highly anticipated report in April 2019, shortly after then-Attorney General William Barr released a short summary of the report that was viewed by many in hindsight as downplaying the report’s findings.
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Prosecutors have looked closely at Section II of the Mueller report, titled “Factual Results of the Obstruction Investigation.” That 142-page section goes into vivid detail, with extensive footnotes and copies of emails and text messages, about Trump taking steps to thwart the work of federal prosecutors investigating Russia’s effort to influence the 2016 election.
That part of the report details how Trump tried to get the FBI to drop its investigation of Michael Flynn, Trump’s first national security advisor, for lying to FBI agents about meetings he had with Russia’s Ambassador to the U.S. weeks before Trump took office. Flynn eventually pled guilty to lying to the bureau and was later pardoned by Trump.
The section also showed Trump deciding to fire his first FBI director, James Comey, who was overseeing the investigation into the campaign’s ties to Russia, because Comey would not say publicly that Trump himself wasn’t under investigation. But Trump instructed his press office to falsely tell reporters that it was senior leaders at the Department of Justice who had first recommended Comey be fired.
The report also detailed Trump’s efforts to fire Mueller as special counsel after press reports showed that Mueller was investigating whether Trump obstructed the investigation.
And it illustrated how Trump responded in June 2017 when he learned about an email from his 2016 campaign setting up a meeting for Trump’s son Don Jr. with Russians. Those Russian nationals were claiming to offer negative details about Hillary Clinton as “part of Russia and its government’s support for Mr. Trump,” according to an email to Don Jr. As he flew aboard Air Force One back to Washington from a summit in Germany, Trump dictated a statement to his aide Hope Hicks to be attributed to Don Jr. saying that the meeting was about Russia’s policy toward Americans adopting Russian children.
It is unclear if the special counsel’s office has decided to use any material from Mueller’s investigation in building their case. There are limits to how prosecutors can use evidence from prior investigations. Called 404(b) evidence, information from a previous criminal investigation can be used to show a target’s motive, intent or that an action wasn’t a mistake or accident. But, under the Federal Rules of Evidence, prosecutors cannot submit evidence from previous bad actions in order to show that a person acted consistent with certain character traits.
The Mueller investigation would be helpful for prosecutors in learning how to deal with Trump, said a former federal prosecutor who worked on a similar case, and requested anonymity to speak more freely. But using evidence from the Mueller investigation or pointing out sections of the Mueller Report to grand jurors could be an unnecessary tangent, given how heated the political debate around Mueller’s investigation became. “Any association with Mueller is not going to be helpful for Jack Smith,” the former prosecutor said.
Even before the Mueller report was released, Trump’s allies pointed to Barr’s summary of it to insist that Trump had done nothing wrong. But Mueller did not rule out that Trump committed a crime in obstructing his investigation. His report established that even a person who wasn’t guilty of a crime being investigated could still have committed a criminal act by interfering with the investigation.
Mueller’s report concluded that then-President Trump “launched public attacks on the investigation and individuals involved in it who could possess evidence adverse to the President, while in private, the President engaged in a series of targeted efforts to control the investigation.” Mueller also said his investigation “found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.”
A lawsuit seeking the unredacted version of the Mueller report led a federal judge in 2020 to criticize Barr’s actions around the report’s release. Judge Walton, an appointee of President George W. Bush, said the differences between the report and Mr. Barr’s public description of it raised questions as to “whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller report in favor of President Trump despite certain findings in the redacted version of the Mueller report to the contrary.”
Trump currently faces four separate criminal investigations. In addition to the classified documents case, Special Counsel Smith is also running a separate investigation into Trump’s role in trying to overturn his 2020 election loss and the violent siege of the Capitol Building on Jan. 6.
Trump was indicted in April by the Manhattan district attorney Alvin Bragg and pleaded not guilty to 34 felony counts related to hush-money payments to adult film actress Stormy Daniels during his 2016 campaign. That trial is scheduled to begin in March 2024. Trump is also being investigated by Fulton County District Attorney Fani Willis in Atlanta over his alleged effort to pressure Georgia state officials to reverse his loss in that state.
On top of that, New York Attorney General Letitia James filed a lawsuit in September against Trump alleging he lied to insurers and bank lenders by overvaluing his properties.
Trump has called these inquiries “scams and witch hunts” and, without evidence, said they are part of a broad campaign of “election interference” to hurt his effort to win back the White House in 2024.
Trump’s criticisms of the classified documents investigation and others echo those he made during the Mueller investigation. In recent public court filings, he has attacked the classified documents investigation as politically motivated, contradicted his earlier statements, and seemingly admitted that he withheld government documents when asked repeatedly by the federal government to return them.
Others have noted a similarity between Trump’s pattern of actions responding to the classified documents investigation and how he acted when he was under investigation by Mueller.
During an interview on CBS Mornings on Tuesday, Barr said that Smith’s investigation “is the most dangerous legal risk” facing Trump, and that risk has been compounded by Trump’s actions after federal officials asked for the classified documents to be returned.
“This would have gone nowhere had the President just returned the documents, but he jerked them around for a year and a half,” Barr said. “The question is did he deceive them?”
Trump wants to feed his ego, Barr said, by “conducting risky, reckless acts to show that he can sort of get away with it.”
“It’s part of asserting his ego and he’s done this repeatedly at the expense of all the people who depend on him to conduct the public’s business in an honorable way,” he added.
Trump’s actions have been in contrast to Mike Pence’s response when classified documents were found in his possession. Pence contacted authorities and allowed federal investigators to conduct a search without a lengthy negotiation. The Department of Justice said in a statement in May that Pence will not be charged.
President Biden is also under investigation for his handling of classified documents at a University of Pennsylvania office he used in DC after he was Vice President, and at his home in Wilmington, Del.
Smith is currently convening two separate grand juries—one in Washington, D.C., and another in Florida—related to the Trump classified documents investigation, according to The Washington Post. After a separate report on Wednesday alleged that prosecutors had notified Trump that he was a target of their investigation and was likely to be indicted soon, Trump wrote on his Truth Social site, “No one has told me I’m being indicted, and I shouldn’t be because I’ve done NOTHING wrong.”
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