Robert Mueller’s office has thrown into question its approach to future controversial Russia probe stories after upending 20 months of blanket “no comments” last week.
President Donald Trump’s lawyers are heralding the special counsel’s team for its rare move on Friday night to knock down a BuzzFeed report suggesting the president directed his former lawyer to commit perjury. And the president’s allies are pressing Mueller to maintain the same standard going forward for other articles that raise concerns. But even legal experts supportive of Mueller’s move see the statement as a one-off designed to protect the investigation’s integrity, not an indication of a shift in strategy.
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So now Mueller’s team finds itself in a difficult spot — stuck between pressure from those who will argue his office has set a precedent, and the desire to maintain a silence that has helped insulate the probe from the heated political chatter surrounding it.
“It obviously creates a slippery slope,” said Randall Samborn, a former federal prosecutor and spokesman on the George W. Bush-era independent counsel probe into who leaked the identity of CIA operative Valerie Plame. “What happens next time?”
Until last week, Mueller’s press policy had been relatively straight forward — no comment.
Spokesman Peter Carr gets peppered daily with media queries detailing the articles journalists are working on, and routinely declines to weigh in, as he initially did before BuzzFeed published its story. While the practice may seem like a fruitless endeavor, legal experts say the exchanges help the special counsel to keep tabs on rumors and theories circulating about the probe.
Carr does occasionally confirm basic details of the investigation to reporters, including the comings and goings of prosecutors. He’s also spoken up on a couple of rare instances: in December 2017 to push back at the Trump transition lawyers who accused the special counsel of stealing their emails, and in a statement last October explaining that Mueller had referred to the FBI an alleged scheme to manufacture sexual assault stories about him.
On media bombshells, however, Mueller has kept quiet. His office didn’t weigh in on two explosive McClatchy reports that the special counsel had evidence placing former Trump lawyer Michael Cohen in Prague during the 2016 campaign. And it’s declined comment throughout a series of scoops in The New York Times, Washington Post and other outlets detailing the investigation’s machinations.
The reluctance to speak out is encoded in Justice Department protocol. Deputy Attorney General Rod Rosenstein, Mueller’s boss for much of the investigation, explained that the agency often believes it’s better to stay silent even when an inaccurate story is racing around the internet.
“I don’t comment on investigations. I don’t comment on what we are investigating. I don’t comment on what we are not investigating,” Rosenstein said during a question-and-answer session at the Newseum last May.
“I can tell you a lot of things I read in the media or see on cable TV just aren’t true. People say, ‘If it’s not true, why don’t you correct it?’ And the answer is: because that’s just not the way we operate. We conduct investigations in secret. If we have a basis to prosecute someone, we prosecute them. If we don’t, we close our file and we go home,” added Rosenstein, who remains one of Mueller’s key overseers.
But DOJ’s long-standing practice of neither confirming or denying stories about pending investigations also has its complications, according to current and former Justice Department officials.
“I always thought that the unwritten rule of the department is that we never comment on investigations — until we do,” said Matthew Miller, DOJ‘s first spokesman under Attorney General Eric Holder.
Former officials say it has long been the case that department officials would seek to knock down what they viewed as inaccurate stories by giving off-the-record warnings to reporters to recheck their facts or that such a report would be embarrassing to the journalist.
In the case of BuzzFeed, Carr pointed one of the reporters on the story back to a partial statement from Cohen during his plea hearing where he admitting lying to Congress about when discussions were held about the Trump Tower project in Moscow. According to The Washington Post, Carr wanted the journalist to take notice that Cohen didn’t say at the hearing that Trump had explicitly directed him to lie to lawmakers.
While department leaders are leery about inaccurate stories getting into circulation, particularly in prominent news outlets, some DOJ lawyers have cautioned that the practice could lead reporters to assume a story is true when they don’t get such a wave-off.
“That’s an argument you hear from people inside the department all the time,” Miller said.
The former DOJ spokesman said statements or guidance about investigations shouldn’t be routine but are appropriate in extraordinary circumstances. Last week’s BuzzFeed report and the reaction to it was one of those times, he said.
“There are exceptional circumstances — and this was exceptional,” Miller said.
The BuzzFeed story was in a “new, radioactive category,” said John Q. Barrett, who worked on the Reagan-era probe into secret U.S. arms sales to Iran, because it made an allegation of direct criminal conduct by the president.
“That makes it an important thing in the interest of government to knock down,” he said.
Matt Axelrod, a lawyer who served as a top Justice Department official handling sensitive matters, agreed.
“I think they handled this the right way,” said Axelrod, who played a key role as the senior aide to former Deputy Attorney General Sally Yates. “It’s always a tricky balance, but you want to make sure you’re being fair to the people you’re investigating while at the same time protecting the integrity of the investigation.”
But the statement wasn’t an unqualified success even to those who thought the special counsel needed to comment.
“Be clear,” Barrett said, “really knock it down.”
The statement, he added, came across as “grammatically flawed or imperfect and very imprecise in what it was trying to do.”
Carr’s statement specifically called out as “not accurate” the article’s “description of specific statements to the Special Counsel’s Office,” as well as its “characterization of documents and testimony obtained by this office.” The careful wording has left the door open to considerable theorizing. Did the article correctly assert that Trump told Cohen to lie, but just misstate how or whether Mueller knew about the incident?
Don’t expect Mueller’s office to be forthcoming.
“It’s pouring a bucket of cold water, but not very clear on what,” said Barrett, now teaching law at St. John’s University after leaving DOJ. “The suggestion is that the entire BuzzFeed story was wrong. If that’s what they meant to say, they could have said that.”
Making matters worse, Barrett said, was a Washington Post follow-up story describing how the Mueller statement came to be — attributed on background to unidentified “people familiar with the matter.”
“To ‘no comment’ and then comment and then supplement the comment with anonymous background augmentation just adds more unclarity to the situation,” Barrett said.
One additional complication for Mueller, Rosenstein and others is the sharp criticism many current and former officials have leveled at former FBI Director James Comey for talking publicly about the findings of the Clinton email probe. In a letter Trump used to justify his firing of Comey, Rosenstein faulted Comey on several grounds, including that the FBI chief defied “a longstanding policy that we refrain from publicizing non-public information.”
Debate about what it is appropriate and ethical for prosecutors to do when confronted with inaccurate press reports goes back decades.
During Bill Clinton’s presidency, independent counsel Ken Starr faced allegations that his office was leaking damaging information about the president. At the time, Starr rebutted the criticisms by arguing that his office should head off the publication of stories it viewed as inaccurate.
Starr told POLITICO on Tuesday that he stands by his stance.
“In my view, a responsible prosecutor has a duty to combat erroneous media reports that will inevitably mislead the public, while at the same time protecting confidentiality [and] the secrecy of the grand jury process,” Starr said via email.
Mueller’s decision to go after the BuzzFeed report comes as potentially far more consequential decisions loom about what the public should be told about the special counsel’s findings.
The special counsel is required to deliver a final report on his probe to the attorney general — William Barr, Trump’s nominee to the post, had his Senate confirmation hearing last week — who will ultimately decide what pieces to publicly release.
As details about the report seep into the media, Mueller’s team will also face considerable pressure from Trump supporters to repeat its BuzzFeed rebuke.
“If so-called journalists continue to do what the BuzzFeed journalists did, he’ll be forced to respond,” Joe DiGenova, a frequent Fox News pundit who nearly joined Trump’s legal team but remains an informal adviser, told POLITICO. “He has a duty to respond.”
Asked to comment for this story, Mueller’s office declined.