As special counsel Robert Mueller’s investigation grows increasingly damaging to President Donald Trump’s close associates, and possibly the president himself, it’s worth looking at how Mueller obtains this crucial information in the first place.
While Mueller is reportedly close to wrapping up his probe, his legal filings and blockbuster media reports, such as BuzzFeed’s bombshell saying Trump ordered his former lawyer Michael Cohen to lie to Congress, indicate he’s working on a case epic in scope — and that he knows far more than the public might realize.
CNBC spoke with several legal experts to help break down how the investigation has gotten to this point.
Here’s where the special counsel’s powers come from.
Under current law, the special counsel — who in this case is Mueller, a former FBI director — is appointed by the attorney general, who also sets the parameters of the investigation. Deputy Attorney General Rod Rosenstein appointed Mueller in May 2017 because then-Attorney General Jeff Sessions had recused himself from the Justice Department’s Russia probe.
According to Rosenstein’s official document appointing Mueller, the special counsel is authorized to investigate:
- “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”
- “any matters that arose or may arise directly from the investigation”
- “any other matters within the scope” of the statute governing special counsels
At the outset, Mueller and his staff were given the power to interview witnesses, issue subpoenas and, if the evidence warrants it, work with the FBI to bring criminal charges. In essence, the role is similar to that of a U.S. attorney but is not subject to day-to-day oversight by Department of Justice officials.
There are several methods Mueller has used to build his case.
First and foremost is a grand jury investigation, which is ongoing. The “biggest, most important and most effective tool” that comes with it is the grand jury subpoena, former federal prosecutor Gene Rossi told CNBC.
With a grand jury subpoena, Mueller can obtain physical evidence, such as documents, memos, handwritten notes or audio recordings, or he can request testimony.
In the case of Mueller’s investigation, testimony is key, said civil rights lawyer and NBC legal analyst Maya Wiley.
While subpoenas are a “crucial way of getting information,” getting people under investigation to admit to smaller crimes, such as perjury, or catching them in the act can get Mueller a lot farther, Wiley told CNBC in a phone interview.
Like he did with Flynn and former Trump campaign aide George Papadopoulos, “you start with low-level crimes and then say, ‘We’ll get you on more,'” Wiley, also a social justice professor and MSNBC contributor, explained. (Papadopoulos served a 12-day sentence last year after admitting he lied to federal investigators.)
Then, if the suspect knows there are larger crimes or connections to conspiracy, he begins to cooperate, she said, and not just by telling prosecutors what he knows, but handing over his emails, meeting notes and correspondences with involved parties.
“From a legal standpoint, you see the case being built on smaller crimes in order to get people to volunteer information,” Wiley said.
Another tool Mueller can use is interviewing witnesses, said Rossi, a former Justice Department official who trained several of Mueller’s aides. In a phone interview with CNBC, Rossi estimated that the special counsel’s team has interviewed thousands of people for the investigation.
A third way Mueller can gather evidence is through a wire tap. In special cases, especially those involving potential national security risks, Mueller can obtain search warrants through the Foreign Intelligence Surveillance Act, or FISA, a law that allows physical and electronic surveillance of foreign agents or powers.
With FISA power, Mueller can monitor correspondence, such as emails and text messages, between persons of interest in real time, provided the communications aren’t encrypted.
Other investigation tactics can include getting standard search warrants, obtaining a court order to view a suspicious party’s tax returns, or sending undercover officers or cooperators to gather evidence in the field, Rossi said.
Seth Waxman, a former federal prosecutor now with Dickinson Wright, told CNBC, “The biggest thing for prosecutors, especially in white-collar cases, is a paper trail.”
That paper trail usually consists of bank records, emails and text messages. Investigators can subpoena phone toll records, which will give them the phone numbers a person called, but to actually read emails or texts they need a search warrant, which requires probable cause.
On its own, a paper trail can be confusing for a jury, while testimony may be seen as suspect, Waxman said in a phone interview. But combining the two can “breathe life” into an investigation, he said.
“The paper trail is what begins an investigation and provides background and foundation for it,” Waxman said. “The cooperators then breathe life into that story and tell it in a way that’s compelling.”
Rossi said Mueller’s main tactics so far have been interviewing witnesses and using grand jury subpoenas to obtain documents, data and testimony.
And, if you ask Rossi, a recent report that said Trump directed his former lawyer to lie to Congress about a real estate project in Moscow is especially damning.
“Whenever there [was] an allegation that a subject or target is tampering with a witness when I was a prosecutor, I would pop the champagne,” Rossi said. “That tampering can be the basis for a series of charges,” including conspiracy to obstruct justice and conspiracy to commit perjury, he said.
Other legal experts, including Waxman, see a long way to go from here.
Waxman said losing former campaign chief Paul Manafort as a witness was a major blow to Mueller’s efforts because it once again clouds what really happened in a key Trump Tower meeting, even as the special counsel has been adamant in his accusations that Manafort lied and violated his plea agreement.
Even so, Waxman predicted that Mueller could have more indictments on the way.
For Rossi, if Mueller is able to prove that Trump tampered with a witness, “The sky’s the limit.”
