By Paul Sperry, RealClearInvestigations
August 7, 2019
Republican lawmakers allege Special Counsel Robert Mueller may have perjured himself before Congress in his sworn testimony last month with an untruthful answer about why he held an earlier press briefing.
Recently released court documents suggest Mueller may have made his surprise appearance before the press in Washington on May 29 as damage control after a federal judge privately threatened to hold his team in criminal contempt of court over what she called misleading language in his final report about Russian government interference in the 2016 election.
Under oath, Mueller denied the judge’s action had anything to do with his holding the press conference.
In the hastily arranged 9-minute press conference, Mueller announced that he was ending his investigation -- which was not news -- and concluded it without taking any questions. He made a point, however, to stress that the Russians he had indicted were “private” entities and "presumed innocent."
What Mueller didn’t tell the country was that the day before, his case against two Russian internet “trolling” firms had taken a sudden turn for the worse. It was a key part of his narrative that the Kremlin interfered in the 2016 election to help Donald Trump win.
On May 28, U.S. District Court Judge Dabney Friedrich called attorneys prosecuting the case into her courtroom for a closed hearing. Although no reporters were allowed inside, it is now known that Friedrich agreed with one defendant’s claims that Mueller had overstated the evidence when he implied in his report to Congress that the trolls were controlled by the Russian government and that the social media operations they conducted during the 2016 presidential campaign were directed by Moscow. News organizations had seized on the highly suggestive wording in his report to report they were part of a Kremlin-run operation.
Concerned that Mueller’s words could prejudice a jury and jeopardize the defendants' right to a fair trial, Friedrich ordered the special prosecutor to stop making such claims and “to minimize the prejudice moving forward” — or face sanction.
“The government shall refrain from making or authorizing any public statement that links the alleged conspiracy in the indictment to the Russian government,” Friedrich stated in her ruling, which was private at the time. “Willful failure to do so in the future will result in the initiation of contempt proceedings.”
The judge explained that Mueller’s report improperly referred to the defendants’ “social media operations” as one of “two principal interference operations in the 2016 U.S. presidential elections” carried out by the Russian government. She also pointed out that he also referred to their Internet trolling as “active measures” — a term of art that typically includes operations conducted by Russian intelligence to influence international affairs. She said this was a departure from the government’s original February 2018 indictment, which “does not link the defendants to the Russian government" and “alleges only private conduct by private actors."
Friedrich further directed the prosecution to make clear that its allegations are simply that and “remain unproven.” She also admonished Mueller’s team from expressing "an opinion on the defendant’s guilt or innocence."
The next day, May 29, Mueller's statement at the Department of Justice press podium apparently mollified the judge. In a recently unsealed July 1 opinion, Friedrich wrote that Mueller had “demonstrated” the government had complied with her order with his statements to the media.
“In delivering his remarks," she said, "the special counsel carefully distinguished between the efforts by 'Russian intelligence officers who were part of the Russian military' and the efforts detailed ‘in a separate indictment’ by ‘a private [italics in original] Russian entity engaged in a social media operation where Russian citizens [italics in original] posed as Americans in order to interfere in the election.’”
In other words, Mueller's hastily assembled appearance in the press briefing room helped head off a public rebuke by the judge hearing one of the signature indictments of Mueller’s 22-month investigation.
At the time, the public was unaware that any of this legal drama was taking place behind the scenes. The judge did not unseal the May 28 hearing transcripts or her orders until later in July.
When Mueller testified before the House Judiciary Committee on July 24, a Republican member of the panel — Tom McClintock of California -- asked him about his puzzling press conference, pressing him on whether the real reason he called it was to “retroactively” soften allegations he made in his report to comply with Judge Friedrich's demands a day earlier.
In spite of documentary evidence suggesting otherwise, Mueller flatly stated that the court order had nothing to do with his calling the news conference, implying that the timing was just a coincidence.
Here is a transcript of their exchange, which has received little media attention:
Rep. Tom McClintock questions former special counsel Robert Mueller July 24.
McCLINTOCK: Your report famously links Russian Internet troll farms with the Russian government. Yet at a hearing on May 28 in the Concord Management-IRA [Internet Research Agency] prosecution that you initiated, the judge excoriated you and [Attorney General William] Barr [who publicly recited Mueller’s claims from the report] for producing no evidence to support this claim. Why did you suggest Russia was responsible for the troll farms, when in court you've been unable to produce any evidence to support it?
MUELLER: Well, I am not going to get into that any further than I -- than I already have.
McCLINTOCK: But -- but you -- you have left the clear impression throughout the country, through your report, that it -- it was the Russian government behind the troll farms. And yet, when you're called upon to provide actual evidence in court, you fail to do so.Robert Mueller being sworn in before the House Judiciary Committee, of which McClintock is a member.
MUELLER: Well, I would again dispute your characterization of what occurred in that -- in that proceeding.
McCLINTOCK: In -- in -- in fact, the judge considering -- considered holding prosecutors in criminal contempt. She backed off, only after your hastily called press conference the next day in which you retroactively made the distinction between the Russian government and the Russia troll farms. Did your press conference on May 29th have anything to do with the threat to hold your prosecutors in contempt the previous day for publicly misrepresenting the evidence?
MUELLER: What was the question?
McCLINTOCK: The -- the question is, did your May 29th press conference have anything to do with the fact that the previous day the judge threatened to hold your prosecutors in contempt for misrepresenting evidence?
McClintock and other Republican lawmakers question the truthfulness of the former special counsel's denial.
“It certainly doesn't pass the smell test,” McClintock told RealClearInvestigations in a statement.
The congressman suspects that Mueller knowingly gave Congress a false statement under oath, and he wants to see the former special counsel’s sworn testimony referred to the Justice Department for investigation of possible perjury -- a charge for which Mueller has sent Trump associates to prison. Most of them were prosecuted for lying to federal agents, but Mueller busted Trump lawyer Michael Cohen specifically for lying to Congress last November.
“If he lied, he’s guilty of perjury and lying to Congress,” McClintock said, adding that “I think this would be of interest to the U.S. attorney investigating misconduct in this matter and the inspector general’s office.”
McClintock, though, doubts the Democratic leadership of the House Judiciary Committee will refer the matter to the Justice Department.
“The committee is run by Jerry Nadler and the Democrats, so I suspect the answer is ‘No,’” he said.
Neither Mueller spokesman Peter Carr nor Nadler responded to requests for comment.