Thursday marks the one-year anniversary of the appointment of special counsel Robert S. Mueller III. The milestone has emboldened White House critics of the probe to declare, as Vice President Mike Pence did on NBC News, that “it is time to wrap it up.”
Never mind that the Mueller investigation is, comparatively, in its infancy. The Whitewater probe of Bill and Hillary Clinton, for example, began in 1994 and ended more than six years later. Mueller’s 12 months of work has turned up more clear wrongdoing than Kenneth Starr ever did: There have been 20 indictments and 5 guilty pleas, including prominent senior members of the campaign and administration, and that doesn’t take into account the wealth of information that Mueller has yet to make public.
Some Republicans suggest that public opinion is shifting, that Trump’s refrain of “witch hunt” may be gaining purchase. As the president’s latest mouthpiece Rudolph W. Giuliani crowed, “We’ve gone from defense to offense.”
“Wrap it up” advocates can point to a slight uptick in Trump’s approval ratings, and a downtick in public support for the investigation. They seem to think that if Mueller doesn’t close up shop soon in response to political pressure, Trump’s position is strong enough that he could put an end to it, perhaps by firing the special counsel or the special counsel’s boss, Deputy Atty. Gen. Rod Rosenstein, and weather any storm the move occasions.
The probe isn’t going to end soon, simply or painlessly for this president. Trump remains in great peril.
They’re wrong. The probe isn’t going to end soon, simply or painlessly for this president. Trump remains in great peril.
Anyone paying attention over the last year knows Mueller will not yield to political pressure. His investigators haven’t leaked; they have ignored vicious personal attacks; they haven’t veered in the slightest from prosecutorial professionalism.
So to “wrap it up,” Trump would have to make a move, but will he?
The president and his lawyers are strategizing about whether he will agree to be interviewed by Mueller, either voluntarily or under subpoena. If he were to refuse, as the current swing of the pendulum suggests, and then try to end the probe, he would only seem more guilty and undermine his support even among Republicans. If his refusal were to lead, as expected, to a court battle, we would expect the Supreme Court to settle the issue. Any move by Trump to preempt it would again only undermine his credibility.
In addition, the president and his circle are well aware of how fast the midterm election is approaching and what effect an attempt to fire Mueller could have on the outcome. They want to avoid any action that would help the Democrats flip the House. Such a shift would change every calculation, not least because a Democratic majority could move to impeach the president early next year.
Of course, Trump may calculate that he could get away with firing Mueller now, if he moved quickly and the Republican leadership rallied to his side. But it is equally possible that Congress would respond with legislation to reinstate Mueller. Again, the field of battle would shift to the courts.
Most importantly, even a successful ouster of Mueller would not derail the investigation at this point. Too much evidence has been gathered, and too many prosecutors, who have surely considered and planned for the contingency, stand ready to carry on. Should Trump try to shutter the entire special counsel’s office, a much graver and politically and legally riskier act than firing Mueller or Rosenstein, other divisions in the Department of Justice, in particular the Southern District of New York, would also be ready to take up the charge.
The strength of all that evidence, the careful work done thus far, and the indictments already filed are the special counsel’s protection against “witch hunt” tweets and protestations that the investigation is already over with nothing to show for it.
In the course of the past year, we’ve learned not to underestimate what Mueller knows and what bombshell he may have prepared. It may involve the Russians and the campaign, it may involve obstruction of justice, but there are other relevant threads as well: the true motive behind the Seychelles meeting between Trump associate Erik Prince and the head of a Russian wealth fund, the hacking of Democratic Party emails and its links to Trump political advisor Roger Stone, the recent sale of Russia’s state owned oil company to Qatar.
Last week we discovered that Mueller was way ahead of us on the huge payments made to Trump’s personal lawyer Michael Cohen for access to the president. We don’t yet know what he’s found out from cooperating witnesses, including Michael Flynn and Rick Gates, that might point directly at the president. And there is still the possibility that Paul Manafort or Cohen could decide to cooperate with the investigation.
None of these threads signals Trump’s removal from office. A conviction in the Senate, no matter what happens in the midterm, would require a good number of Republicans to turn against the president, which seems remote absent a smoking gun that proves grave criminal conduct. But it is more than plausible that the probe and associated investigations will result in additional indictments of Trump associates — including Jared Kushner and Donald Trump Jr. — and will leave Trump seriously wounded, an untenable candidate in 2020. Once he leaves office, his legal exposure, both civil and criminal, would skyrocket.
The “wrap it up” crowd is indulging in wishful thinking. The first anniversary of the Mueller investigation is unlikely to be the last.
Harry Litman teaches constitutional law at UC San Diego. He is a former U.S. attorney and deputy assistant attorney general.
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