Earlier today — “today” being 3 April 2018, just to be clear — the Washington Post put out that Robert Mueller has gone on record saying that as of right now — “right now” being the early months of 2018 — he isn’t looking at naming the President as a direct target of his investigation. This of course strikes as supremely contradictory given what we already know about shenanigans (putting it very politely, of course) that went on within the Trump Campaign, some of it going all the way back to 2013, if not earlier.
This in turn has led to a diary (www.dailykos.com/...) or two (www.dailykos.com/...) asking if this means all hope of justice is lost? I paraphrase naturally and the tone of the diaries in question are more inquisitive than hysterical (something better left to our friends on Right). It has nevertheless clarified — to my mind, anyway — that there exist some serious misunderstandings about what the Mueller Investigation is, where its going, and what it will likely result in.
Full disclosure: I’m not an attorney, but I do read the work of professional attorneys as it pertains to this subject. What follows is my understanding of the situation and the applicable laws involved; there’s a good chance I’m missing something important, so take it for what it is.
First misunderstanding I see is the expectation that Mueller can/will indict Donald Trump for something, be it Obstruction of Justice or outright Treason.
A second misunderstanding follows from this, that being thinking Mueller is acting in the capacity of an Independent Counsel (a la Ken Starr).
Third, and again flowing from the above two, Mueller is supposed to be focusing his attention upon activities conducted by Trump himself, and automatically sees the President as a “target”.
Fourth, related to these three but not a direct offspring, this investigation should have bagged Trump by now, yet he’s still in office; why is that?
Finally, there seems to be a sense this article by the Post means the Mueller Investigation is wrapping up, or at least closing investigative avenues that would lead to the President.
That all said, let me knock down each misunderstanding in turn:
Number one, Mueller — arguably -- cannot indict the President. Current legal theory — admittedly untested in Court, but enjoying significant backing in established legal circles — holds that the President of the United States cannot be subject to a criminal indictment while in office, if only on practical grounds lest the Executive Branch become paralyzed by nuisance suits. This isn’t saying the Presidency is an automatic "get out of jail free" card, but merely that most legal thinking is very reluctant to go down that path. UPDATE: several comments have pointed out the opposite line of thinking has been put forth, particularly the Starr Memo from the 1990s, that a sitting President can indeed be indicted in a criminal investigation. That line of thinking, while perhaps sound, quickly runs into some pretty serious practical issues that have major ramifications for the country, and thus far has never been tested in Court. Mueller doesn’t strike me as a legal trail-blazer, so I can’t see him going this route anyway unless he uncovers something incontrovertibly treasonous that leads directly to Trump himself (a long shot, true, but a possibility all the same).
Number two, Mueller is a Special Counsel, not an Independent Counsel (like Ken Starr). The two are not synonymous and its a critical distinction to understand. The key point is that Mueller is acting as an investigator, admittedly one facing the most complex and intricate criminal investigation to face the country in our entire history, and has significant layers of oversight that can conceivably limit his inquiry. What we know to date, which is likely only 10 to 20% of what Mueller and his staff know, sees this thing touching on computer crimes, sophisticated media strategies, financial manipulations, data breaches, and who-knows-what-else. This isn't so much one investigation as 10 or 12 separate investigations whose principals and effects overlap one another, and each of those overlaps potentially opens new avenues of investigation. Criminal indictments were always likely to result from all this, but issuing them was not Mueller’s original focus. The fact there’ve been so many already — 19 at last count, with possibly as many still unsealed — tells us there’s a lot of criminal activity involved.
Thirdly, the Mueller investigation is not focusing solely upon Trump, indeed not targeting Trump at this time, precisely because that’s not his job. Unlike a fishing expedition that focused on finding criminal behavior of a sitting President — as the Starr investigation ultimately was/became — Mueller is working to reconstruct the various parties and manipulations that swirled around the 2016 Presidential election and determine what crimes (if any) were ultimately committed and by who. That means he’s looking more at the conduct of the campaign staff and principals than the candidate himself. Hence names like Paul Manafort, George Papadopoulous, Roger Stone, Sam Clovis, Rick Gates, Carter Page, Hope Hicks, and George Nader get significantly greater air-time than the likes of Steve Bannon, Jeff Sessions, Jared Kushner, and even Trump himself. That just means Mueller is following the trail of evidence to the appropriate parties, and allowing us to see only what he wants us to right now.
Fourth, Trump is still in office because the only way to remove him — short of his decision to resign or become medically incapacitated per the 25th Amendment — that has been tested over time is through Impeachment, which is absolutely NOT Mueller’s job! Appalling as Trump’s behavior is, and as venal and corrupt as his Administration is proving, it needs to be re-emphasized that Impeachment is a political process, not a legal or judicial one. It is not within the regulations governing the Special Counsel to arrest, never mind indict, a sitting President. At the end of the investigation, Mueller will likely be referring impeachable offenses to DAG Rosenstein (who he ultimately answers to) in the form of his official report; it will then be on Rosenstein to refer those charges on to the House Judiciary Committee, and they in turn will have to decide whether to refer them on to the House floor. For all of Trump’s demonstrated criminality, everything turns upon the temperature of the House majority and its leadership being willing to initiate Impeachment proceeding against the sitting President, which is so far outside of Mueller’s purview it might as well be on Mars. UPDATE: Mueller has been making noises about releasing individual reports on the various strands of his investigation to “answer public's questions", and there’s reason to think this is being done with Rosenstein’s blessing else he wouldn't be suggesting it in the first place. I can't say whether this would be kosher with the regulations governing Special Counsels, but you can be sure he (Mueller) isn't going to risk his investigation with irresponsible stunts.
Finally, the only person who says when this investigation is finished is Robert Swan Mueller III! Today’s article by the Post merely reiterated a current sentiment by Mueller’s investigation on one element of it, and should be taken as such. Nowhere does it say anything about the investigation nearing its end — indeed, given the sheer number of avenues, crimes, and players, one could see this investigation taking a decade to establish all the contours involved — nor does it say the President will never be a direct target of the investigation’s attention. Keep in mind this investigation will be ongoing for the foreseeable future, so the President’s status as a target is subject to change at any second. Until Mueller says he’s finished, take it as good odds the investigation will continue to close in on Trump and his family. UPDATE: I’m not saying here that the investigation will take a full decade to reach its conclusion; neither Mueller nor the country have that kind of time. He’ll likely finish his investigation and issue his report to DAG Rosenstein (or whoever is in charge of him by then) later this year.
For further perspective on this last point, I’d recommend this thread by Seth Abramson:
So, that all said, I can only recommend patience and not fall into the trap of thinking today’s news is the be-all/end-all of this affair. Its not, any more than Papadopoulous’s guilty plea last year or van der Zwaan’s sentencing today were. These are markers on the side of a road that stretches a good ways ahead before we reach its end.
Have patience, and trust the guy leading this knows what he’s doing. He had no difficulty facing down the Bush43 gang over warrantless wiretapping and ‘enhanced interrogation methods’, so I doubt he’ll let something as vile as Donald Trump walk away clean.
UPDATE: “Rec List”? Thank you all, I’m honored.
