More than nine months into special counsel Robert Mueller’s investigation — the most-watched, most-speculated-about criminal probe in recent history — his office continues to unveil new criminal charges that catch the press, the public, and the political world off guard.
The secrecy that shrouds much of what Mueller’s team is doing on a day-to-day basis was underscored this week by the latest case to come out of the Russia probe. The special counsel’s office announced Feb. 20 that Dutch lawyer Alex van der Zwaan had been charged with lying to the FBI and to prosecutors. He entered a guilty plea in court later that day.
It was remarkable in part because nothing about van der Zwaan’s role in the investigation was reported in advance. The charge against van der Zwaan was filed in court the week before, on Feb. 16. Court filings revealed that van der Zwaan signed his plea deal with Mueller’s office even earlier, on Feb. 14, and that he spoke with prosecutors on Nov. 3 and Dec. 1.
Prosecutors are bound by confidentiality and ethics rules not to disclose information about pending criminal investigations, and grand jurors and court employees involved in grand jury proceedings are barred from talking about their work. It’s common for criminal charges to come as a surprise. But Mueller’s ability to control the flow of information in such a high-profile investigation and deliver a shock with the revelation of a new case has stood in contrast to the steady stream of behind-the-scenes stories coming out of the Trump administration.
Witnesses and defense lawyers aren’t restricted by the same grand jury secrecy rules. There have been previous cases where prosecutors or law enforcement officials leaked to reporters, but two lawyers familiar with the investigation told BuzzFeed News that to the extent information was trickling out about the Russia probe, they did not believe it was from Mueller’s team.
Some information has come out over the past year about the scope of Mueller’s investigation — CNN reported that a grand jury had returned an indictment two days before Mueller’s team revealed criminal charges in October against former Trump campaign chair Paul Manafort and his longtime associate Rick Gates, and the New York Times previously reported that Manafort had been told to expect an indictment. Still, no one reported who the indictment was against until the day it was revealed in court. In most cases, such as van der Zwaan’s, information about charges and plea deals stayed secret until they were formally announced by the government.
Former Trump campaign foreign policy adviser George Papadopoulos’s guilty plea in early October was kept secret for nearly a month. There was speculation for months about whether Trump’s former national security adviser Michael Flynn would face criminal charges, but no details of his guilty plea leaked before the special counsel’s office announced it in December.
One of the attorneys who spoke with BuzzFeed News and had direct knowledge of the investigation said the special counsel’s office had taken “significant steps” to avoid having its work become public, including the identities of witnesses visiting Mueller’s office — where reporters are regularly posted outside — for meetings. A CNN reporter tweeted after van der Zwaan’s case was unsealed and the names of his lawyers were disclosed that members of van der Zwaan’s legal team were seen at Mueller’s office by a producer twice in the past month.
Van Der Zwaan’s attorneys were seen at Mueller’s office twice in the last month, according to our producers - who… https://t.co/VQKXRASGvy
“It’s my experience they take the confidentiality of what they’re doing extremely seriously,” the attorney said.
The other attorney, a defense lawyer involved in the probe, also said Mueller’s office had been careful about avoiding leaks, and the attorney was more surprised by the lack of leaks coming from the FBI. The lawyer said Mueller’s office had limited how much information could circulate from the FBI agents assigned to the investigation out to the rest of the agency.
A spokesperson for the special counsel’s office declined to comment.
Melinda Haag, a former federal prosecutor who worked with Mueller when he was the US attorney in San Francisco, said she didn’t remember Mueller explicitly warning prosecutors about not leaking, but it was understood. She said he “demanded the utmost professionalism from everyone around him.”
“He engenders respect and nobody that works for him would leak,” said Haag, now a white collar defense lawyer at the law firm Orrick. “It doesn’t surprise me at all that we are constantly being surprised by the news of their work, and that it only comes when something public happens, like an indictment is unsealed.”
Leaks can compromise a criminal investigation — influencing witness testimony and giving targets time to destroy evidence, for instance — and undermine the presumption of innocence that every person has until they’re convicted or plead guilty, said Carol Elder Bruce, a white collar defense lawyer at the firm Murphy & McGonigle. Bruce, a former federal prosecutor, served as a court-appointed independent counsel in the late 1990s.
Mueller has surrounded himself with lawyers who share the “same feeling of responsibility” to uphold their oaths as prosecutors, she said.
“When you see some offices where there are leaks that come out and some where they don’t, it all depends heavily on the culture,” Bruce said.
Charges under wraps
On Oct. 27, CNN reported that a federal grand jury had returned charges in connection with the special counsel's investigation. The report didn’t say who was charged, but noted that Mueller’s team had been looking into the activities of several people in Trump’s orbit, including Manafort.
The news finally broke on Oct. 30 that Manafort and Gates had been charged — the special counsel’s office announced the case in an email to reporters at 9 a.m. Manafort and Gates pleaded not guilty to the indictment, which included charges that they conspired to launder money and hide their work on behalf of the Ukrainian government.
But an hour later, as reporters were still digesting the indictment, the special counsel’s office sent out another email. It announced that not only had Papadopoulos pleaded guilty, but he had done so on Oct. 5 — nearly a month earlier. The court docket showed that charges were first filed against him in July, and that he’d appeared in court at a sealed hearing on Oct. 5 for his arraignment.
Earlier news reports noted that Mueller had asked for communications related to the Trump campaign’s foreign policy advisers, including Papadopoulos, but no information about the charges filed against him, his initial court appearance, or his guilty plea, came out in advance. He has not been sentenced yet.
Multiple news outlets reported that Flynn was a subject of Mueller’s investigation, but the fact of his plea deal with the special counsel’s office didn’t come out until the office announced it on Dec. 1. Flynn also pleaded guilty to lying to investigators, and has not been sentenced yet.
Deputy Attorney General Rod Rosenstein, the Justice Department official overseeing Mueller’s investigation because Attorney General Jeff Sessions is recused, announced Feb. 16 that a federal grand jury had returned an indictment against 13 Russian nationals and three Russian entities accused of interfering with US elections, including the 2016 presidential election. Russian interference in the election is at the core of Mueller’s mandate as special counsel, but there were no reports before that day that an indictment was coming. The Justice Department announced Rosenstein’s press conference in an email to reporters less than an hour before it was scheduled to start at 1:15 p.m.
The special counsel’s office on Feb. 16 also revealed the existence of a criminal case against a California man, Richard Pinedo, who was accused of running a company that circumvented the security features of online digital payment companies. His case appeared to be connected to the indictment of the Russian defendants, who were accused of buying credit card and bank account numbers from online sellers to evade security measures at PayPal.
Pinedo signed a plea agreement with the special counsel’s office Feb. 2. The case was filed in court Feb. 7, under seal. He appeared at the federal courthouse in Washington for an arraignment — also held under seal — Feb. 12. Nothing about his criminal case came out in advance of the Feb. 16 announcement.
Lawyers for the defendants charged so far either declined to comment or did not return interview requests.
Defense lawyers aren’t bound by the same confidentiality rules as prosecutors, but white collar defense lawyers who spoke with BuzzFeed News said it usually wasn’t in their interest to get ahead of prosecutors in disclosing that a client is about to be charged or is cooperating. Lawyers may hope to control a story about their client or place pressure on prosecutors by sharing information with reporters, they said, but that runs the risk of upsetting the prosecutors — or the judge.
“The reality is you’re going to someday be standing in front of a judge at sentencing,” said Patrick Cotter, a former federal prosecutor and white collar defense lawyer at Greensfelder, Hemker & Gale. “If they feel that you, the attorney, because you wanted to show off to a reporter or feel like a big man on a big case, you leaked something, that’s going to hurt your client.”