Eric Felten: Mueller’s footnotes

Eric Felten is a man of many parts. Among other things, he is a meticulous and literate reporter as well as one of my favorite analysts of the mysteries of Russiagate. Earlier this month we posted Eric’s July 1 RealClearInvestigations column “Insinuendo: Why the Mueller Report doth repeat so much.” Today Eric wades further into the Mueller miasma in the RCI column “The shaky foundations of Mueller’s footnotes.” RCI authorizes the republication of its articles with attribution and we are happy to take advantage of the opportunity here. Eric writes:

Who knew that the humble footnote would loom so large in some of the most consequential documents of our time? Those bottom-of-the-page annotations are supposed to impose rigor on authors by forcing them to cite justifications for what they assert. But in the age of collusion claims, footnotes have become so much more — places for officials to tuck away inconvenient information; discreet spaces in which to make dubious assertions; or fine print in which required disclosures can be hidden in plain sight.

It was in the footnotes, for example, where the FBI appears to have misled the FISA court in its application to spy on Carter Page – obscuring its reliance on opposition research, the Steele dossier, financed by the Hillary Clinton campaign.

The more than 2,000 footnotes included in Special Counsel Robert Mueller’s report on Trump-Russia collusion allegations are also illuminating. Most of the citations are matter-of-fact support for claims made in the main text. But a close reading reveals that many of the footnotes raise more questions than they answer, especially regarding Mueller’s methods and intent. Some footnotes show that key allegations often rely on the flimsy say-so of media accounts; others show a willingness to accept the claims of anti-Trump critics at face value. Mueller and his team also used the footnotes as the place to include unsubstantiated gossip and speculation.

Mueller has made it clear that during his scheduled testimony before Congress on Wednesday, he will not discuss his investigation beyond the “four corners” of his official report. But those four corners encompass not only the main text, but thousands of footnotes.

If Robert Mueller is going to defend his document, he will have to be prepared to defend the footnotes too. It is there where the strengths and weaknesses of the Mueller report are most clearly on display. Come Wednesday’s hearings, the advantage may go to the questioners who know where to look.

The Comey Memos

One of the bedrock decisions investigators must make in complex probes filled with incomplete and contradictory accounts is whom to believe. Dozens of footnotes in the Mueller report make it clear that the special counsel placed absolute faith in former FBI Director James Comey.

Dozens of the footnotes refer to memos Comey wrote recording his account of meetings and phone calls with President Trump. These include memos dated Jan. 7 and Jan. 28, 2017, as well as notes from Feb. 14, March 30 and April 11. Those memoranda were treated as the evidentiary gold standard by Mueller. Long stretches of the special counsel’s report hang almost exclusively on Comey’s say-so. One or another of Comey’s memos are cited some three dozen times in Volume II alone, which addresses possible obstruction by Trump. Mueller relies on Comey memos in footnotes 109, 110, 111, and 112, and then in footnotes 172, 174, 175, 176, 177, 178, 179, 180, 181, 182 and so on.

Comey was also interviewed by the FBI and numerous are the footnotes — 68, 108, 109-112, 176-78, 180-82 and more — anchoring the narrative in his testimony.

Mueller relied so heavily on Comey’s memos that he felt the need to argue the superior believability of the former FBI head’s version of events. He uses legal citations that “contemporaneous written notes can provide strong corroborating evidence” and that “a witness’s recitation of his account before he had any motive to fabricate also supports the witness’s credibility.” Perhaps. But Comey was not a disinterested observer. As Paul Sperry reports for RealClearInvestigations, citing sources familiar with an internal Justice Department review, the FBI director Trump inherited was secretly trying to build a conspiracy case against the president.

Which means that Comey was writing his memos with an eye to swaying future legal and public opinion. Upon finishing a memo, he would run it by his top deputies (see footnotes 187 and 188 in Volume II) to make sure it served its purpose. Comey’s memos may or may not be the “strong corroborating evidence” Mueller claims, but Comey surely intended for those memoranda to establish his version of events. For all his suspicions and speculations about the president’s intentions, one former FBI director demonstrates a remarkable lack of curiosity about the motives of another former FBI director.

This lack of skepticism about Comey’s motivation is especially jarring given footnote 544 in Volume II, which suggests a political motive and, perhaps, some lawbreaking. That’s where Mueller acknowledges that Comey arranged to have several of the aforementioned memos leaked: “Comey testified that he deliberately caused his memorandum documenting the February 14, 2017 meeting [with the president] to be leaked to the New York Times,” the footnote reads, “because he thought sharing the memorandum with a reporter ‘might prompt the appointment of a special counsel.’”

Floating Theories

Mueller clearly doesn’t just use footnotes for citations, but also for speculation and explanation and even a little what-iffery. Footnote 500 in Volume II, for instance, is a rather lengthy dissertation on a curious theory of how the president might have obstructed justice in firing Comey — a theory that imputes to Trump oracular foresight. We now know, thanks to Mueller’s inquiry, that there was not evidence to establish a Trump-Russia conspiracy. But the special counsel is unwilling to let go of the notion that Trump obstructed the investigation. Which leaves the special counsel team anticipating the obvious objection: How could the president have had a corrupt intent in firing Comey if there were no Russia conspiracy to cover up?

Mueller explains that Trump may have been afraid of what would get tangled in the net of a prosecutorial fishing expedition. “We considered whether the President’s intent in firing Comey was connected to other conduct that could come to light as a result of the FBI’s Russian-interference investigation,” footnote 500 states. “In particular, Michael Cohen was a potential subject of investigation because of his pursuit of the Trump Tower Moscow project and involvement in other activities. And facts uncovered in the Russia investigation, which our Office referred to the U.S. Attorney’s Office for the Southern District of New York, ultimately led to the conviction of Cohen in the Southern District of New York for campaign-finance offenses related to payments he said he made at the direction of the President.”

After all that fevered speculation – that when Trump fired Comey in May 2017 he might have been anticipating the raid on Cohen’s office in April 2018 — the footnote ends with a sheepish shrug: “The investigation, however, did not establish that when the President fired Comey, he was considering the possibility that the FBI’s investigation would uncover these payments or that the President’s intent in firing Comey was otherwise connected to a concern about these matters coming to light.”

Given the squads of lawyers and the platoon of FBI agents at Mueller’s command, the footnotes show a surprising reliance on media accounts as evidence of consequential claims – an echo of the FBI’s FISA warrant, which used a Yahoo News article to substantiate allegations in the Steele dossier. In discussing whether Trump had ordered his White House counsel to fire Mueller, the report cites the same Michael S. Schmidt and Maggie Haberman article in the New York Times not just once or twice, but in four footnotes in a row.

To establish the crucial claim that “On July 22, 2016, the day before the Democratic National Convention, WikiLeaks posted thousands of hacked DNC documents revealing sensitive internal deliberations,” the special counsel turns not to the investigative prowess of the FBI, but relies instead on a Washington Post story by Tom Hamburger and Karen Tumulty. “WikiLeaks releases thousands of documents about Clinton and internal deliberations,” which is the citation found in footnote 20, Volume II.

The special counsel wrote that “On December 10, 2016, the press reported that U.S. intelligence agencies had ‘concluded that Russia interfered in last month’s presidential election to boost Donald Trump’s bid for the White House.’” To establish this, Mueller’s team cites a Guardian article by Damien Gayle. The Guardian, in turn, attributes its claims to the New York Times and the Washington Post. They, in turn, cite anonymous sources. Why does the special counsel resort to hearsay thrice removed to make any claim when he had every investigative tool at his disposal?

Sometimes the references are such shoddy clip jobs that the media accounts cited undercut the very point they are meant to buttress. Take footnote 16 of the report’s second volume. The body text being footnoted reads, “The press also reported that foreign policy advisor Carter Page had ties to a Russian state-run gas company.” The first citation is to a Bloomberg article making that claim. But then the footnote goes on to cite a September 2016 Politico article by Julia Ioffe, headlined “Who Is Carter Page?” Ioffe wrote that in doing her reporting she “quickly discovered” that Page “was known by neither Russia experts, nor energy experts, nor Russian energy experts.” In other words, the thrust of Ioffe’s article was the exact opposite of the point it was being used to validate. And the footnote misspelled Ioffe’s name.

The Mueller team does cite many primary sources – especially FBI interviews – but in some cases those sources merely offer opinions instead of evidence. One example is the report’s section dealing with Trump’s first national security adviser, Michael Flynn, who was fired after misleading the administrations about a conversation with the Russian ambassador. A footnote informs us that Flynn “told White House officials that the FBI had told him that the FBI was closing out its investigation of him,” but that John Eisenberg, a deputy White counsel, “did not believe him.”

Let’s pause for a second and consider what the footnote appears to tell us, but doesn’t: Eisenberg’s incredulity aside, did the FBI tell Flynn it was closing out its investigation of him or didn’t it? By citing Eisenberg’s disbelief, the special counsel suggests that Flynn was lying to his fellow White House officials. But what Eisenberg believed settles nothing – he was in no position to know what the FBI had or had not told Flynn.

What about the two FBI agents (one of them the ubiquitous Peter Strzok) who interviewed Flynn? The special counsel could have questioned them separately, asking each under oath whether they had told, suggested, hinted, or in any other way made Flynn to believe he was off the hook. In this case, the sources Mueller chooses not to question are more telling than the ones he does cite.

Thin Sourcing

To get insight into Mueller’s method and intent – his penchant for building edifices of insinuation on the smallest of citations – it is worth unpacking one of the shortest footnotes in his report. Footnote 1024 on page 150 of the report’s first volume simply reads: “Nader 1/22/18 302 at 3.” It is a reference to the FBI’s memo – known as a 302 — of its January 2018 interview with George Nader, identified in the Mueller report as “Advisor to the United Arab Emirates’s Crown Prince.” Nader had spoken with a Russian who was attending the 2016 World Chess Championship in New York and who had expressed an interest in meeting Trump. Nader also told the FBI that an unnamed chess federation official had “recalled hearing” from an unknown attendee that Trump “had stopped by the tournament.”

The footnote tells us just how thin the sourcing was for this fantastical scenario. And it tells us just how little in the way of plausible proof the Mueller team needed to go off on an investigative tangent. The special counsel even used one of his precious few written questions for the president (question V. a. to be exact) to ask whether Trump had been invited “to attend the World Chess Championship gala on November 10, 2016” and whether he had attended “any part of the event[P3] .” Trump responded that he had learned in “the course of preparing to respond to these questions” that early in 2016 the chess federation had inquired, fruitlessly, about using Trump Tower for the championship match. But in any case, Trump said in his written testimony that he “did not attend the event.”

It’s worth pointing out that Nov. 10, 2016, was just two days after Trump’s election and a day the president-elect spent in Washington — it was even in the newspapers — meeting with President Obama.

As for the other days of the tournament, how plausible is it that Donald Trump just happened to pop over to the World Chess Championship? This is not just because Trump is more a WWE than a WCC sort of guy. Rather, it is a matter of common sense. Trump was the most famous person in the world, hated and loved and surrounded by unprecedented levels of security. Trump Tower, for example, was encircled by dump-trucks loaded with sand. And with such precautions being hastily imposed, Mueller entertains as a possibility worth inquiring into that the president-elect was able to slip away from his Trump Tower penthouse, travel some six miles to the South Street Seaport in lower Manhattan , take in some chess, schmooze with some Russians, and return to midtown — all without being seen?

This is where one would hope to find a more robust citation, because without a more compelling predicate than the sad little footnote provided, the special counsel’s pursuit of Chessgate comes across as naive and foolish. And yet, Mueller’s team finds it hard to let go. Back in the main text, Mueller uses his favorite grudging formulation of innocence: “the investigation did not establish that Trump or any Campaign or Transition Team official attended the event.”

For those in the Trump transition team who were unable to sneak out to catch the end of the contest, Mueller might have added that the Russian challenger lost.

He could even have footnoted it.

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