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| PHOTO ILLUSTRATION BY 731 / BLOOMBERG |
(PORTIONS OF THIS POST WERE ORIGINALLY PUBLISHED IN MAY 2018)
It has been 15 months since Robert Mueller was named special counsel and took over the Russia election interference investigation begun by ousted FBI Director James Comey. What does Mueller have to show for his labors? Will the powerful Forces of Evil lined up behind Donald Trump be able to derail him and save the president? Or not?
Herewith the answers to those questions and more at a time when, as critical junctures go, we're approaching an awfully big one.
WHERE DOES MUELLER GO FROM HERE?
Even with 31 indictments, including four Trump associates, 25 Russian nationals and three Russian companies, the special counsel arguably is not close to wrapping up since none of the indictments include Trump campaign associates who colluded with Russia, which after all is the heart of the matter.
There have been five guilty pleas and four cooperation agreements, while the first of two trials on tax and bank fraud charges against former campaign manager Manafort is playing out in Alexandria, Virginia. (If the outcome is bad for Manafort, he could decide to cooperate before his trial on money laundering charges begins in Washington on September 17.)
Possible future perps include Michael Cohen, Hope Hicks, K.T. McFarland, Donald McGahn, Carter Page, Reince Preibus, Roger Stone, Donald Trump Jr. and Javanka -- Jared Kushner and Ivanka Trump. This noted, one or more of them -- and Cohen in particular -- could flip.
But the biggies, of course, are whether Trump's lawyers will agree to an interview, and regardless of that outcome, whether Mueller will recommend that articles of impeachment be brought against the president.
DOES MUELLER NEED TO TALK TO TRUMP?
Not really.
Despite all the sturm und drang about a face-off, smart prosecutors -- and Mueller certainly qualifies as one -- don't need the guy at the top to make their cases. That said, Trump is uniquely positioned to have relevant information about the scandal that no one else may have.
WILL THERE BE AN INTERVIEW OR SUBPOENA?
No and yes.
Trump and his lawyers have been playing an eight-month game of Truth or Dare. Even if Trump believes he can outfox Mueller, in the end he will not agree to an interview because, as Trump lawyer and mouthpiece Rudy Giuliani notes, it would be a perjury trap. In other words, Trump would be in as much trouble for telling the truth as continuing to lie.
The prima facie evidence against Trump (obstruction of justice, perjury and multiple violations of his oath of office, for openers) is so overwhelming that it is difficult to rationalize that Mueller, who is not called "Maximum Bob" for nothing, will take a powder.
WHEN WILL ALL THIS HAPPEN?
Possibly not until after the midterm elections on November 6, which sets up several interesting dynamics.
When the White House definitively rejects an interview or Mueller runs out of patience, his grand jury would subpoena Trump to appear for the interview his lawyers have quashed just as the fight over Brett Kavanaugh's confirmation as a Supreme Court justice gets underway.
The Trump administration's unrelenting efforts to destroy Obamacare will be the major midterm election issue with Trump's conduct, including creating the appearance he has something to hide by not playing ball with Mueller, is a close second.
Because of all that and more, it is probable that the Democrats will take back the House if not the Senate, as well, in the midterms and begin impeachment proceedings after the 116th Congress convenes on January 3. That is if the Russians don't once again screw with the gear works.
WHAT DOES IT MEAN IF KAVANAUGH IS CONFIRMED?
It is a lead pipe cinch that Kavanaugh will be confirmed.
This means he could end up being the deciding high court vote on the question of whether Trump can be compelled to obey a grand jury subpoena as were Thomas Jefferson (for Aaron Burr treason trial documents), Richard Nixon (for Watergate-related tapes) and Bill Clinton (for testimony in the Paula Jones case).
Then there is the question of whether Kavanaugh will ignore those cases requiring sitting presidents to obey grand jury subpoenas and defer to executive privilege. Unlike some pundits, I do not believe that is a foregone conclusion just because of Kavanaugh's conservative credentials and it is possible that either he or Chief Justice John Roberts, or possibly both, will side with the court's liberal minority against Trump.
CAN THE FORCES OF EVIL STOP MUELLER?
Effectively, no.
They are pretty much in full panic mode because they know Trump and many of his associates are guilty as sin and they're madly scrambling to find new ways to define collusion. Their claims that Mueller is engineering a deep-state coup to overthrow Trump will get no leverage beyond the Fox News sycophancy, while their efforts to pervert the nation's investigative machinery -- the Justice Department, FBI and other investigative agencies -- will backfire.
Trump's tweetstorming aside, Mueller has all the leverage, as well as the element of surprise since we know what Trump and his legal eagles will do but can't say the same about the special counsel.
CAN TRUMP FIRE MUELLER?
Effectively, yes.
But even if Trump finds a way to do so, which would take us from a slow-motion constitutional crisis to a full blown one, Mueller's work product -- the indictments and plea agreements -- will stand, while it is a virtual certainty that the investigation will continue in one form or another, especially if Democrats retake the House and pick up at least a Senate seat or two and Congress can then leverage a renewed investigation that has the force of Mueller's.
There also is the possibility that Mueller could appeal his ouster to a federal court on the grounds that his investigation was prompted by a national emergency and must be allowed to continue.
WHAT IF A MUELLER SUBPOENA SURVIVES A CHALLENGE?
Trump is screwed.
Grand jury testimony is under oath, the president would be examined by Mueller or one of his prosecutors without his attorneys being present, and lying (the crime in this context is called "making false statements") opens him to additional legal jeopardy.
CAN MUELLER INDICT TRUMP?
Justice Department legal opinions say a sitting president cannot be indicted criminally while in office. Giuliani is correct for once when he claims Trump won't be indicted, but that is because Mueller won't even try. Trying to break new legal ground would waylay his investigation. This takes Mueller's options for Trump out of the criminal realm and plops them squarely into the political realm.
SAY WHAT?
Impeachment.
HOW WOULD MUELLER RECOMMEND IMPEACHMENT?
Under the regulations governing appointment of the special counsel, Mueller would provide a confidential report explaining his conclusions to the attorney general -- or, in this case, Deputy Attorney General Rod Rosenstein since AG Jeff Sessions kept lying about his contacts with Russians during the Trump campaign, and to the president's everlasting anger, recused his sorry self. If Mueller believes he has the goods on Trump, the report might lay out the case for impeachment.
WHAT WOULD HAPPEN THEN?
Rosenstein would decide whether to make the report public, but in any event he must provide the chairmen and ranking members of the House and Senate judiciary committees with an explanation about any decision to conclude the investigation, or at least an initial phase of it, whether in the form of a memo about the report or the report itself.
WHAT WILL ROSENSTEIN DO?
Rosenstein has aggressively pushed back against the Forces of Evil. He almost certainly will make the report public, which would lay the groundwork for impeachment.
WHEN WOULD IMPEACHMENT HAPPEN?
Not until when and if Democrats regain control of the House in January.
The new Democratic majority on the House Judiciary Committee would approve articles of impeachment, but the likelihood of a two-thirds majority of the entire House then voting to send the articles to the Senate for trial is slim baring a sensational new development that would compel Republicans to flee Trump in droves.
SO HOW THEN ARE WE GOING TO GET RID OF TRUMP?
Stormy Daniels?
Click HERE for a comprehensive timeline of the Russia scandal
and related developments.
1 comment:
Thanks for another concise summation, Shaun.
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