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receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it.

Modern Federal Jury Instructions summarizes the elements that the government must prove beyond a reasonable doubt to obtain a conviction under section 793(d):

First, that the defendant had lawful … possession of (or access to or control over) [describe document].

Second, that the [document] was related to the national defense.

Third, that the defendant had reason to believe that the document could be used to the injury of the United States or to the advantage of [name of foreign country].

Fourth, that on [insert date], the defendant willfully communicated (or delivered or transmitted or caused to be communicated, delivered, or transmitted or attempted to communicate, deliver or transmit) the document to [name of person], who was not entitled to receive it.[1]

IV. Background Facts and Prosecution Decisions

This section begins by providing factual information about the FBI’s New York Field Office (“NYFO”) investigation of Carter Page in the spring of 2016 (Subsection A.1); the text messages between certain FBI officials that on their face show a predisposition to investigate Trump (Subsection A.2); and the predication, opening, and conduct of the Crossfire Hurricane investigation (Subsections A.3 through A.5). This part concludes with a comparison of some of the FBI’s investigative decisions related to Clinton with some of those related to Trump (Subsection A.6). The remaining parts of this section each include a factual background and then describe the prosecutive decisions the Office made. The first addresses an investigative referral of a possible Clinton “campaign plan” (Subsection B). The next is an extensive discussion of the FISA applications targeting Page (Subsection C). The last part of this section covers conduct by private-sector actors in connection with Crossfire Hurricane and related subjects (Subsection D). In describing these matters, this section does not endeavor to repeat or restate all the information that the Office and others[2] have covered and made public. Instead, it aims to add to that body of information, include additional relevant facts, and explain the prosecutive decisions we made.

The Appointment Order authorized the Special Counsel “to prosecute federal crimes arising from his investigation” of the matters assigned to him.[3] What is stated in the Mueller Report is equally true for our investigation:

In deciding whether to exercise this prosecutorial authority, the Office has been guided by the Principles of Federal Prosecution set forth in the Justice … Manual. In particular, the Office has evaluated whether the conduct of the
  1. ↑ Modern Federal Jury Instructions-Criminal § 29.04 (2022).
  2. ↑ These include most notably the OIG in its comprehensive reports, the Mueller Report, the SSCI Russia Report, and the FBI Inspection Division Report.
  3. ↑ Appointment Order ¶ (b).

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