The Rosenstein Memo

Then FBI-Director Robert Mueller testifies at a hearing on Capitol Hill on Sept. 13, 2011. Brendan Hoffman/Getty Images

News Analysis

Deputy Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller on May 17, 2017, as special counsel “to investigate Russian interference with the 2016 presidential election and related matters.”

Rosenstein, on Aug. 2, 2017, secretly issued Mueller a revised Scope of Investigation & Definition of Authority memo that remains heavily redacted. The full purpose of this memo remains unknown.

The majority of the memo’s body is redacted with only one section, relating to the former chairman of the Trump presidential campaign, Paul Manafort, unclassified:

“Allegations that Paul Manafort:

• Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;

• Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.”

The Aug. 2 Rosenstein memo was made public as a result of the Manafort trial. Manafort challenged the validity of Rosenstein’s appointment of special counsel Mueller, while also arguing that Mueller’s prosecution fell outside the scope of the special counsel jurisdiction.

On April 2, the Mueller team filed a response to Manafort’s motion to dismiss the indictment against him:

“The Acting Attorney General has specifically confirmed to the Special Counsel in an Aug. 2, 2017, memorandum that allegations that Manafort committed a ‘crime or crimes...were within the scope of the [special counsel’s] Investigation at the time of [his] Appointment and are within the scope of the [Appointment] Order.’”

The existence of the August memo was an entirely new disclosure. Up to that point, we knew only of the original May 2017 appointment document.

The contents of the Rosenstein memo remain classified and most, including members of Congress, don’t know what is contained within the redacted sections.

Deputy Attorney General Rod Rosenstein announces the indictment of 13 Russian nationals and 3 Russian organizations for meddling in the 2016 U.S. presidential elections at the Justice Department on Feb. 16, 2018. Win McNamee/Getty Images

But one individual has seen the unredacted version: U.S. District Judge T.S. Ellis III, who presided over the Manafort trial. He received a copy on May 17, 2018.

On May 4, 2018, prior to seeing the unredacted version of the Rosenstein memo, Ellis rebuked the Mueller team’s April response to Manafort’s motion, noting, “If I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump.”

Judge Ellis continued:

“I think you’ve already conceded appropriately that this investigation that has led to this indictment long antedated the appointment of a special prosecutor; that it doesn’t have anything to do with Russia or the campaign...so that the defendant will turn and provide information on what is really the focus of the special prosecutor.”

The prosecution then raised the issue of the Aug. 2, 2017, Rosenstein memorandum, which prompted this exchange:

Ellis: Yes. I have that right here, and I’m glad you raised it because 75 percent of it is blocked out, redacted. Why don’t I have a full copy of it?

Mueller team prosecutor Michael Dreeben: The only paragraphs that are pertinent to Mr. Manafort are the ones that are contained in this record.

Here’s a crucial fact: Everything that remains redacted and classified in the Rosenstein memo relates to individuals and events other than Manafort.

Ellis then began his push to see the Rosenstein memo in full, noting, “If any part of it is classified, it won’t surprise you to know that a district judge is fully cleared.”

The Mueller team highlighted the sensitivity of the classified information, stating, “In the context of a confidential, sensitive counterintelligence investigation that involves classified information, it would not make any sense for that information to be conveyed publicly.”

Paul Manafort arrives for a hearing at US District Court in Washington on June 15, 2018. MANDEL NGAN/AFP/Getty Images

Ellis began to focus on the government’s claims, observing, “You’re making a big deal out of it being a classified kind of thing. If that’s in any way relevant to his defense ... I'd like to have notice of it.”

The Mueller team tried to elaborate on their position:

“It’s not appropriate for the government to disclose specific subjects of an investigation when those matters may never result in a charge and when they could jeopardize ongoing criminal investigations, as well as reveal national-security matters.”

But Ellis made clear his concerns:

“You don’t really care about Mr. Manafort’s bank fraud. You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.”

Ellis later questioned the shift of other investigations, including those of Washington lobbyist Tony Podesta and former Trump lawyer Michael Cohen, to the Southern District of New York, sarcastically paraphrasing the prosecution’s reasoning for the handoff:

“We’re not interested in it because we can’t use this to further our core effort, which is to get to Trump?”

Ellis appeared particularly concerned throughout the hearing that the Mueller team was ultimately focused on finding leverage to use against President Donald Trump.

On May 17, Ellis received an unredacted copy of the Rosenstein memo. The Mueller team provided the “unredacted memorandum” under seal with the U.S. District Court’s Eastern District of Virginia.

On June 26, Ellis ruled on Manafort’s dismissal motion and the validity of the Rosenstein memo. It was a resounding victory for the Mueller team and a notable reversal of Ellis’s initial thoughts on May 4:

“The August 2 Scope Memorandum reflects that the Special Counsel was acting within his authority when he sought and obtained the Superseding Indictment against defendant in February 2018.”

Ellis continued:

“The record makes clear that the Acting Attorney General [Rosenstein] has required the Special Counsel to consult with the Acting Attorney General before investigating matters that might fall under the May 17 Appointment Order. Specifically, the August 2 Scope Memorandum identifies specific factual matters to be investigated by the Special Counsel.

“Notably, the August 2 Scope Memorandum limits the Special Counsel’s ability to investigate “additional matters that otherwise may have arisen or may arise directly from the Investigation” by requiring the Special Counsel to “consult [the Acting Attorney General] for a determination of whether such matters should be within the scope of [the special counsel’s] authority.

“The Acting Attorney General has required the Special Counsel to follow the procedures for gaining additional jurisdiction should the Special Counsel wish to exercise the authority set out in [the May 17 Appointment Order].”

Special Counsel Investigation

The special counsel investigation is a continuation of the FBI’s probe of “Russian Interference in the 2016 Presidential election and any potential links or coordination between the Russian government and President Trump’s campaign organization.” This was confirmed by Ellis in his ruling:

“On May 17, 2017, Acting Attorney General Rod J. Rosenstein appointed Robert S. Mueller, III as Special Counsel … and authorized Mueller to ‘conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.’”

Comey noted in his memos that he informed Trump at least three separate times that he wasn’t the subject of the FBI investigation that was later assumed by Mueller. He did so in 2017 on Jan. 6, Jan. 28, and March 30.

Then-FBI Director James Comey answers questions at a press conference in New York City on Dec. 16, 2015. Andrew Burton/Getty Images

During a March 30, 2017, phone call with Trump, Comey also noted he had “briefed the leadership on exactly what we were doing and who we were investigating. Comey noted he “had told him we weren’t investigating him and that I had told Congressional leadership the same thing.”

That congressional leadership briefing likely took place on March 15, 2017, as noted in a Jan. 4 memo from Senate Judiciary Chairman Chuck Grassley (R-Iowa):

“In response to the Committee’s inquiries, the Chairman and Ranking Member received a briefing on March 15, 2017, from then-Director James B. Comey, Jr.

“[redacted] That briefing addressed the Russia investigation, the FBI’s relationship with [former UK spy Christopher] Steele, and the FBI’s reliance on Mr. Steele’s dossier in two applications it filed for surveillance under the Foreign Intelligence Surveillance Act (FISA).

“Then, on March 17, 2017, the Chairman [Grassley] and Ranking Member [Sen. Dianne Feinstein (D-Calif.)] were provided copies of the two relevant FISA applications, which requested authority to conduct surveillance of Carter Page. Both relied heavily on Mr. Steele’s dossier claims, and both applications were granted by the Foreign Intelligence Surveillance Court (FISC).”

On March 17, 2017, the Senate Select Committee on Intelligence (SSCI) received a “Classified Document [which] contained both SECRET and TOP SECRET information, including SECRET-level information regarding the identity and activities of the individual referred to in this Indictment as Male-1.”

The classified document almost certainly refers to the FISA applications received by the Senate Judiciary Committee on the same day. Comey would have also briefed SSCI leadership on the Russia investigation at or around the same time as he briefed Grassley and Feinstein.

Acting Attorney General

On Nov. 7, at the president’s request, Attorney General Jeff Sessions was replaced on an acting basis by Matthew G. Whitaker, who had been Sessions’s chief of staff.

While Rosenstein remained in his current position, it was reported that Whitaker would assume authority over the special counsel investigation. Because of that, it can be presumed that Whitaker has also seen the Aug. 2, 2017, memo, particularly given its critical nature with regard to the Mueller probe.

Given that Rosenstein remains in his position, it also seems likely that, similarly to Ellis, Whitaker found nothing untoward in the Aug. 2, 2017, memo.

Meanwhile, the investigation by Mueller appears to be coming to an end.

“Mueller is expected to issue findings on core aspects of his Russia probe soon after the November midterm elections as he faces intensifying pressure to produce more indictments or shut down his investigation,” Bloomberg reported on Oct. 17, citing two U.S. officials, and adding that “Rosenstein has made it clear that he wants Mueller to wrap up the investigation as expeditiously as possible.”

As a further indication of an investigative wind-down, four of Mueller’s prosecutors have left the special counsel’s office in recent months.

Reliance on Congressional Data

In a July 15 interview with Fox News’s Maria Bartiromo, House Intelligence Chairman Devin Nunes (R-Calif.) pointed out a startling fact: The Meuller indictment in July contains the same information as the March 22 House Intelligence Committee Russia report.

“Almost everything in the indictment, we knew about,” he said. “On March 22, we released our findings that you have in front of you right there. All you had to do was get Page 4, and you only had to read Chapter 2, and you would have had nearly everything that’s in the indictment. ... There’s more in this report than what’s in the indictment.”

Trump Team Cleared Multiple Times

Notably, the Mueller investigation, intentionally or otherwise, has three times confirmed there was no collusion on the part of the Trump campaign, while also providing a legal determination that Nunes and his report on Russian interference were correct.

Rosenstein has made public comments regarding Mueller’s indictments on several occasions. They always include similar language, such as this statement from July 13, 2018:

“There is no allegation in this indictment that any American citizen committed a crime. There is no allegation that the conspiracy changed the vote count or affected any election result. I briefed President Trump about these allegations earlier this week. The President is fully aware of the Department’s actions today.”

The Mueller findings may prove to be more interesting than some are expecting.