How Robert Mueller could finesse his endgame

If you want everyone to like you, don't become a prosecutor. The job ensures that, in almost every case, at least one...

Posted: Apr 5, 2018 1:33 PM
Updated: Apr 5, 2018 1:33 PM

If you want everyone to like you, don't become a prosecutor. The job ensures that, in almost every case, at least one person will be unhappy with you, regardless of your choices. The best prosecutors tend not to care too much about popularity. That's good because public outcry, the wishes of defendants, and political pressures don't always run in the same direction as justice.

In that sense, Robert Mueller, the special counsel overseeing the Russia investigation, appears to be a consummately good prosecutor. As his investigation has advanced, there have been few leaks and he avoids the media. When tidbits of information do emerge, he does nothing to address the questions raised.

Most recently, those tidbits included a report by the Washington Post that revealed two seemingly contradictory pieces of information: that Mueller's team is "continuing to investigate" President Donald Trump, but "does not consider him a criminal target at this point." How can both things be true?

The answer probably lies in the rules governing the special counsel. They tell us that Mueller is charged with preparing a confidential report to the attorney general "upon conclusion of the special counsel's investigation," and that the attorney general then is to prepare his own report to Congress. The special counsel rules were changed after Kenneth Starr's 1998 report on Bill Clinton, with the express purpose of avoiding the problems associated with that very public publication.

If Trump is not a criminal target, that does not necessarily mean that Mueller has insufficient evidence to charge Trump; rather, it may indicate that Mueller reads the Constitution to mean that impeachment rather than indictment is the appropriate remedy for any serious presidential malfeasance. He could be preparing a report that recommends impeachment even while he refrains from indictment -- and, thus, Trump could be under investigation while not a criminal target.

As special counsel, Mueller's role is defined and limited by federal regulations: the mundane-sounding 28 C.F.R. -600.3-8. Those rules give Mueller the powers of a United States attorney, meaning that he can direct a criminal investigation, seek charges from a grand jury, negotiate pleas, and prosecute cases through to sentencing. He has done exactly that in charging some Trump associates and Russian operatives.

Beyond that, 28 C.F.R. -600.8 makes a very specific demand of Mueller: that "at the conclusion of the special counsel's work, he or she shall provide the attorney general with a confidential report explaining the prosecution or declination decisions reached by the special counsel." In other words, there will be no blockbuster news conference. Rather, Mueller will finish his task by reporting privately to his boss (which, given the recusal of Attorney General Jeff Sessions, would be Deputy Attorney General Rod Rosenstein).

Conceivably, such a report could include a recommendation of impeachment. Those same regulations tell us what happens next, too. Once Mueller reports to (in this case) the deputy attorney general, Rosenstein is then to report to the chair and ranking minority member of both the House and Senate Judiciary Committees, possibly while rejecting the special counsel's advice.

To a strategist like Mueller, timing is going to be very important. His "final report" needs to come at the end of his work, and that means completing his prosecution tasks. Therein lies the rub -- and the possibility of another option.

It seems quite possible that Mueller could end up indicting some of those in Trump's inner circle. Those charges might trigger one or both of two things: Mueller being fired, and some or all of these defendants receiving pardons. Both actions would be hugely controversial and would rattle the already-shaken faith of the American people in our political structures.

To finesse that situation, Mueller might try to seek indictments and file his final report at once. That isn't true to his mission, though, which includes prosecuting to conclusion the cases he brings -- meaning that he is unlikely to submit a "concluding" report recommending impeachment (or not) until all of the defendants are -- potentially -- sentenced.

There is another possibility, and it might be the most likely: Mueller might try to submit a confidential impeachment recommendation prior to concluding his work, in the form of a "notification of significant events."

The federal regulation, 28 C.F.R. -600.8, allows for that, noting that such a report needs to be "in conformity with the departmental guidelines with respect to urgent reports."

"Urgent reports" are just as exciting as you might expect, too -- they are required when there is a law enforcement emergency, when national media attention is anticipated, or where there are "major developments in significant investigations and litigation."

The finding of evidence supporting an impeachment recommendation certainly seems to fit this last description, and this route would allow Mueller to take the risky step of indicting the inner circle, making his recommendation, and going forward as long as he can.

No matter what Mueller chooses, in action or inaction, some will be upset. Mueller, the good prosecutor, knows this well. Hopefully, he just doesn't care.

Indiana Coronavirus Cases

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Cases: 613228

Reported Deaths: 9728
CountyCasesDeaths
Marion846851338
Lake45676687
Allen32980552
Hamilton29649315
St. Joseph27531382
Elkhart24478345
Vanderburgh19610250
Tippecanoe18108141
Johnson15191295
Porter14944169
Hendricks14485250
Madison11044222
Clark10811144
Vigo10795181
Monroe9458113
Delaware9170134
LaPorte9145164
Howard8292144
Kosciusko810183
Warrick680299
Hancock6782104
Bartholomew6640100
Floyd6507110
Wayne6177162
Grant6027116
Dubois558680
Boone556468
Morgan548695
Henry511464
Marshall506984
Cass486964
Dearborn486545
Noble475659
Jackson427747
Shelby420781
Lawrence393780
Clinton375044
Gibson374459
Harrison353045
DeKalb349864
Montgomery347654
Knox336239
Miami324544
Steuben315046
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Jasper291734
White275143
Daviess271774
Jefferson266238
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Fayette248648
Greene242262
Posey241028
Wells236951
LaGrange230062
Scott226839
Clay224332
Randolph215248
Jennings200636
Sullivan193533
Spencer193022
Washington188023
Fountain184927
Starke176444
Jay168623
Owen167637
Fulton164830
Orange160935
Carroll159715
Rush156318
Perry155929
Vermillion149734
Franklin149333
Tipton133133
Parke13088
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Blackford111822
Pulaski97837
Newton92021
Brown88335
Benton87110
Crawford8099
Martin74913
Warren6857
Switzerland6695
Union6297
Ohio4977
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Ohio Coronavirus Cases

Data is updated nightly.

Cases: 868656

Reported Deaths: 10768
CountyCasesDeaths
Franklin102154707
Cuyahoga865201153
Hamilton64744448
Montgomery43516419
Summit35250762
Lucas31663631
Butler31268232
Stark26096443
Warren19830142
Lorain19296229
Mahoning17471339
Lake16250154
Clermont16128112
Delaware1453680
Licking13326137
Fairfield1294981
Trumbull12920317
Greene12174141
Medina11732168
Clark11058265
Wood10457158
Allen9988127
Portage9454111
Miami924473
Richland9236118
Marion7486113
Tuscarawas7440183
Columbiana7409124
Pickaway732150
Wayne7111172
Muskingum710342
Erie6221130
Ross5558100
Hancock555292
Scioto542764
Geauga515955
Darke473492
Lawrence460658
Union456928
Ashtabula456473
Sandusky439562
Mercer435089
Seneca433866
Huron432841
Auglaize424164
Shelby422522
Jefferson422469
Belmont421145
Washington394240
Athens38389
Putnam378075
Madison358129
Knox356122
Ashland349038
Fulton340443
Defiance334486
Crawford325774
Preble322737
Brown315821
Logan312132
Ottawa296543
Clinton291543
Williams280367
Highland279018
Jackson265845
Guernsey257126
Champaign253428
Fayette239530
Morrow23464
Perry233718
Holmes226774
Henry221953
Hardin215533
Coshocton206922
Van Wert203445
Gallia199826
Wyandot196751
Pike178017
Adams177715
Hocking173224
Carroll157616
Paulding145321
Noble121040
Meigs109724
Monroe102232
Harrison89921
Morgan83931
Vinton71314
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