Prosecutor In Charge of Clinton Email Probe Criticizes Mueller

Former Justice Department counterintelligence chief defends leaks probes

Robert Mueller
Robert Mueller / Getty Images

The Justice Department's senior counterspy prosecutor who worked on both the Hillary Clinton email probe and the initial Russian election meddling probe recently criticized Special Counsel Robert Mueller for not completing his team's investigation.

David H. Laufman, until recently chief of the counterintelligence and export control section of the Justice Department national security division, also defended the government prosecution of leakers, including the recent case of an anti-American former intelligence contractor who provided a top-secret document to a news outlet.

"I can't substitute my judgement for that of Mueller's team," he said. "And I had to hand off my chapter of that [investigation] early on and so I'm not going to stand here and tell you whether I think the evidence does or doesn't warrant actual charges. But I do think it was wrong of the special counsel's office not to make the charging decision on obstruction—up or down."

The redacted 428-page Mueller report concluded there were no Americans involved in the extensive Russian influence and hacking operation to influence the 2016 presidential election.

On the question of whether President Donald Trump interfered with the special counsel probe, the report noted three questionable instances. They include Trump's order to White House counsel Don McGahn to end the probe; a request of Deputy National Security Adviser K.T. McFarland to draft a statement saying the president did not order Michael Flynn to discuss sanctions with Russia's ambassador; and a request to another aide to ask then-Attorney General Jeff Sessions to end his recusal of the Russia probe.

None of the actions were carried out by the aides, who either declined or did not follow through on the requests.

In all, the Mueller investigation noted 10 examples of possible obstruction but made no judgement on whether the president was culpable and should be charged.

Laufman praised what he said was a "rigorous and comprehensive investigation" but sharply criticized Mueller for not making a specific recommendation in his final report on whether Trump should or should not be prosecuted for obstructing the two-year Russian meddling investigation. The report, he said, contained several incidents of "conduct consistent with an effort to obstruct the government's investigation."

The former spy prosecutor said Mueller and his team of 19 lawyers, many of them Democrats, were authorized to make a charging decision and news reports stated that both Attorney General William Barr and Deputy Attorney General Rod Rosenstein were surprised when the Mueller report did not make such a decision.

The remarks followed a keynote speech to the Logan Symposium, an annual investigative journalism conference at the University of California Berkeley.

Trump denied in a tweet that he ordered McGahn to fire Mueller "even though I had the right to do so."

"Mueller was NOT fired and was respectfully allowed to finish his work on what I, and many others, say was an illegal investigation (there was no crime) headed by a Trump hater who was highly conflicted, and a group of 18 VERY ANGRY Democrats," Trump stated. "DRAIN THE SWAMP!"

Laufman also said the special counsel report appeared to violate its own considerations about abiding by Justice regulations on avoiding denigrating uncharged people by saying the team of lawyers could not state with confidence that the president did not commit obstruction of justice, and noting their report did not exonerate the president.

"To me those things are consistent with ‘dirtying up' someone who is uncharged in a way that is not too dissimilar from just coming out and saying it," Laufman said.

"I understand and I don't gainsay that this was a principled decision, heartfelt, well-argued internally," he added. "I just don't think they made the right decision."

Laufman also said the Mueller team's failure to make a clear decision also undermined and politicized the Justice Department.

"It left a vacuum into which the political leadership of the Department of Justice happily stepped in to substitute their judgement in a very politicized manner undermining in my estimation the legitimacy of that decision and undermining public confidence in the integrity and independence of the department. And that's a bad place to be."

Worries that the Mueller findings would improperly leak to the press also appeared to have been factor in the handling of the investigation.

"Now I understand there was concern about leaks, but I just don't think we can be paralyzed by the possibility of leaks in doing what otherwise might seem to be like the right thing to do," Laufman said.

Laufman, who stepped down in February after two years conducting counterintelligence and leak probes, declined to comment during a speech to an investigative journalism conference on the controversial Clinton email probe that found highly classified information on the former secretary of state's private email server.

Fear of leaks, however, were a factor in FBI Director James Comey's decision to send Congress a letter shortly before the 2016 election reopening the Clinton email probe after additional emails were found on a laptop by the FBI in New York.

Clinton has blamed Comey for undermining her election prospects by reopening the investigation and notifying Congress.

Laufman devoted most of his remarks to outlining how the Justice Department conducts investigations into the disclosure of classified information.

"Sometimes leak investigations result in criminal charges. And sometimes they don't, and probably more often they don't," he said.

The comments reflect the overemphasis by past and current administrations on plugging leaks of information while traditional counterintelligence efforts against foreign spies have been weakened.

Since 2010, the CIA lost more than two dozen recruited agents in China as the result of a combination of betrayals by former CIA officers and a breach in agent communications.

Another 20 or more agents in Iran were also compromised several years ago after an Air Force counterintelligence officer defected to Iran.

Both cases have highlighted what critics say is poor U.S. counterintelligence.

Laufman said a case study involved former National Security Agency contractor Reality Winner, who pleaded guilty in August 2018 to leaking a top-secret intelligence report on Russian interference in the 2016 election to the anti-secrecy outlet the Intercept.

Laufman said investigators discovered writings by Winner indicating that she was a supporter of WikiLeaks founder Julian Assange and renegade NSA contractor Edward Snowden and that she hated the United States.

"There were documents the government found in its investigation where she just expressed outright hatred for the United States," Laufman said.

Winner searched a classified computer network and printed out the top-secret document on May 7, 2017. The document revealed sources and methods of intelligence collection.

After the Intercept shared the document with NSA a document audit revealed Winner was among six people who had printed the document and an email search revealed she had contacted the media organization.

"That was pretty much the game for her," Laufman said.

Winner was sentenced to over five years in prison, the longest sentence to date in a leak case.

On the Mueller probe, Laufman also disagreed with Trump that the investigation proved fruitless on the subject of Russian collusion.

"I think by any standard it's fair to say there was considerable damning evidence of contacts and attempted contacts between Trump campaign officials and Russians in connection with the campaign with the intent to benefit the campaign," Laufman said.

He noted the effort by campaign adviser George Papadopoulos to arrange a meeting between the Trump campaign and the Russian government even though the plan did not pan out.

"So to say the least, it's misleading to say that the investigation did not establish coordination, or that it was a failure, or that it was a witch hunt," Laufman said. "Nothing could be further from the truth. Rather, as detailed in the report, they simply didn't develop sufficient admissible evidence to charge a criminal conspiracy to interfere in the 2016 election. That is not exactly a badge of honor."