It is true, I have never investigated and prosecuted the President of the United States. Until recently, a special prosecutor, or formerly, the independent counsel, was usually a once-a-term appointment and far more often focused on those around the President.
No one in Washington D.C. is interested in a former public defender turned prosecutor leading a federal investigation into political elites, especially without the blessing of an Ivy League education. But the Law School of Twitter Punditry, combined with clueless legal punditry, has shamelessly indulged the progressive fantasy that the presidency of Mike Pence will start any day. Let’s take a trip through reality and examine some of the issues.
The major threshold issue is that the President has the power to pardon federal crimes, and this power is unreviewable. No doubt that Mueller and his team have considered this fact in their approach to the investigation. Indeed, some reports suggested that the federal prosecutors would attempt to get state prosecutors on board to circumscribe the scope of the President’s power. And it does appear that he has backstopped his investigation with state investigations. But let’s also be real, no federal law enforcement agent or prosecutor gets out of bed hoping to tee up a state charge.
With Trump’s recent comments about the possibility of pardoning Michael Flynn for his lying to the FBI, this recalls when a number of professors said a number of dumb things about the scope of the President’s pardon power. For all the noise about the inappropriate pardon of Sheriff Joe, the federal judge acknowledged the reality of the President’s power. So, Trump can throw major sand in the gears with his pardon power.
Unlike non-practitioners tilting at windmills, it’s more likely Mueller would accept that Trump can do this and figure that there wouldn’t be pre-emptive pardons, which would potentially remove Fifth Amendment rights of the suspects. Likewise, he’d probably assume if the President pardoned himself, it would likely be seen as a non-justiciable issue, which the Supreme Court would pass on—no matter what the OLC told Nixon. Plus, Mueller has surely considered that some process crimes, like obstruction of justice, might fail against President or possibly President-elect Trump. There’s just no way you can reasonably expect the Supreme Court to be the body to effectively remove a sitting President.
If you stop right here, you can see the chances of getting an indictment against the President are highly unlikely. Consider also that the scope of Mueller’s investigation is mostly confined to “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Assuming Mueller is staying true to his grant of authority, this significantly narrows the possibility of a state crime fitting any conduct Trump committed.
As unlikely as it was that Mueller would try to bring a President down on the Logan Act or honest-services fraud, analogs are also unlikely to be found in any state’s law. Even if fortune smiled on Mueller and there was a state law that covered the misconduct, that too seems unlikely to bring down the President. Federal prosecutors have argued the Supremacy Clause exempts them from state disciplinary rules; so, it seems likely there would be enough pre-trial litigation to prevent a single state prosecutor from removing a sitting President.
This means, in all likelihood, that the focus of the investigation is those people surrounding Trump during the critical time between the launch of his campaign and his election. These are the folks who might simultaneously commit a federal and state crime, meaning a presidential pardon would only be partially effective. If you develop sufficient cause to believe one of these people had a link to or coordinated with the Russian government, then you can lawfully investigate them. If this suspect turns out to have conspired with candidate Trump, then you can use that person to find documents or obtain a confession to use against the President. Again, that is if, hopefully, the President’s conduct was criminal under state law.
You see ‘if’ is doing a lot of work in this theory of the investigation. And the evidence thus far doesn’t suggest that such a strategy, if being deployed, will bear fruit. Two of the four people thus far indicted (at least among the four who have had their indictments unsealed) have only pleaded guilty to lying to the FBI about conduct that itself wasn’t criminal. And the other two have pleaded not guilty to conduct charges not involving the Trump campaign.
To other prosecutors, the charges against Flynn and the charges against Manafort suggest that Mueller isn’t finding evidence that Trump illegally used the Russian government to win the election. (When you’re done here, go read those links to pieces by Andrew McCarthy.) First, prosecutors usually prosecute the most serious form of the offense provable from the evidence. This is the standard in the U.S. Attorney Manual, and the NDAA standard is more equivocal but is usually going to lead to the same practical result as the USAM. In any event, we can presume that Mueller, who ran the DOJ criminal division, would largely follow the USAM, which suggests here that there’s smoke but not a lot of fire.
But the Trump haters are undeterred; the tin foil hat is simply too tight and confirmation bias is everywhere. So, let’s consider two more points.
Next, if a prosecutor hammers out a plea deal with the defendant, making the suspect a confessed liar makes him a terrible witness against a future co-defendant. And if you’re the National Security Advisor lying to the FBI and conceivably lying to the President or Vice-President about lying to the FBI, the defense’s cross-examination will be brutal and the jury will likely end up hating the witness and possibly the prosecution for putting the witness on the stand.
Finally, a plea agreement doesn’t mean that a defendant has been granted the legal equivalent of a hall pass. In fact, the USAM states that the selection of charges for a plea are to be based on similar considerations as when charging in the first instance. If you believe that Flynn committed crimes on the same level as Manafort, it is a grave injustice to allow him to plea to charges that in no way reflect the seriousness of his actual criminal conduct.
Moreover, if you want to use him as a cooperating co-defendant, the fact he’s admitted to his part in the crime and will face sentencing for those crimes is thought to play better with the jury. No one really likes tattletales. On the other hand, an appropriately chastened and humbled co-defendant usually plays alright. Never mind that if at the end of this, Mueller spends millions of dollars and years prosecuting folks who only get house arrest, it will look like a serious failure. See also, Ken Starr (especially before the blue dress).
While the progressive wet dream of quickly dispatching the Trump presidency is seeming about as likely as your middle school friend’s hot Canadian girlfriend* whom he met at summer camp, Mueller’s investigation is beginning to see charges of political bias stick. As it turns out, the FBI agent who interviewed Flynn and was involved in the Hillary email server investigation was a vocal anti-Trumper and Hillary supporter. We know this because he used his government phone to text his feelings to his mistress, a DOJ lawyer who had some connection with Mueller’s investigation.
This is compounded with previous reports of the political donations Mueller’s team had made to Hillary and Democrats. Now news has come out that a different DOJ official’s wife was possibly involved in the fake Trump dossier, which may have been used to obtain FISA warrants. In response, the other political team has cried foul about the timing of disclosures and demotion of those under investigation.
By far the most legitimate Monday morning quarterbacking of Mueller so far was his decision to stack the team with prosecutors who might seem like active Democrats. This is not because prosecutors and law enforcement officials are incapable of bringing wrongdoers of the same party to justice. Nor is it because having a political affiliation should automatically disqualify you from investigating or prosecuting someone. By unnecessarily stacking the team with apparent Democrats, it left him with little margin for error when someone inevitably did something dumb. It was unnecessary here because most of Trump’s advisors were political outsiders and there were truckloads of federal prosecutors who likely had no connection to any of the targets.
But the fact that a key investigator did something to burn himself is just stuff that happens. The longer a prosecution goes, the more likely it becomes that something will go wrong for trial. Once Mueller found out, he made the right call to contain the damage and move the agent off the case. But the reality is that it doesn’t retroactively taint everything the prosecution and other investigators have done. Although you may not be able to use the agent as a witness any more, it’s not an automatic fact that the investigator’s investigation was rigged.
And neither should the fact that the Obama DOJ did things that call into question its investigation into Hillary, or the lack of an investigation into the Clintons, impute wrongdoing to the appointment of Mueller or his investigation. The DOJ is inherently a political animal because at the end of the line the President is the chief cop and chief prosecutor. That recognition is why special counsels are appointed. It would be great if the AG had more independence from the President, but the DeLorean trip back to 1787 ain’t happening.
The failure of the Obama DOJ to appoint a special counsel or the failure of the Trump DOJ to do so doesn’t mean it was wrong to appoint Mueller to look into the folks running the Trump campaign. These actions can exist independently.
But ultimately, if it all begins to put pressure on the DOJ, which expects to be around after President Trump, all bets are off if its credibility and power are called into question. Under the old independent counsel statute, the DOJ could say “not my problem.” But that’s not the case now. So, Mueller could see the political cover that the DOJ has provided wane over time.
In sum, you’re of course welcome to dwell in the land of fantasy where Mueller indicts President Trump, but I won’t be joining you there. Mueller may finally crack the case and demonstrate beyond a reasonable doubt that the President conspired with the Russian government to do an illegal act, which can’t be thwarted by a pardon. But you’d do better to bet on impeachment. Yet, the Senate has twice shown no desire to remove the President, who was from a party opposite the majority. So, not a great bet either. Trump will likely be there after Mueller. And remember, if you come to kill the king, you best not miss.
*Ed. Note: This is not a reference to David Meyer-Lindenberg, even though it probably should be.