Part of the game we’re all playing right now (and let’s be clear: Our role in the game is “public opinion,” which means what we believe is insignificant except in the aggregate) is “Who are the targets of the Mueller Investigation?”
Rep. Trey Gowdy (R-Lame Duck) made headlines last week by talking on the TV Machine about how he’s talked to leadership at the DOJ, and they’ve made it clear that Donald J. Trump, President, “is not a target of the investigation.” This is, of course, true — but only in the narrowest technical sense.
Of course Trump is the target of the investigation. The person directing a criminal conspiracy and its cover-up is always the ultimate target of any serious criminal investigation. But when the target is also the Criminal in Chief of the United States of America, a certain amount of formal discretion is required. When you strike at a prince, you must strike to kill.
In this overlong post, I’m going to lay out why I suspect that everything we’re witnessing right now in the “Trump/Russia thing” is directly related to positioning the end game of this rapidly intensifying struggle between law enforcement and a criminal presidency. I will propose that Team Trump is seeking to shape that end game before the President is formally revealed as the No. 1 target, and that once the evidence of Trump’s involvement in crimes against the United States is revealed, what happens within the first news cycle will likely determine whether Trump resigns within days, or drags the country through what could be months of unprecedented acrimony.
WHAT THE PROSECUTION KNOWS
Trump may lack wisdom, but he’s certainly a cunning little con man. He knows, as everyone does, that Mueller is working up the chain, isolating and confirming, building an evidence-and-testimony-based case that points directly to the man behind the Resolute Desk. He knows, because his lawyers have certainly told him, that Mueller is pursuing him the way a prosecutor pursues a mob boss — and that a prosecutor doesn’t need to interview the Godfather in order to charge him.
Trump’s early calculations about this — that he could fire Comey and end the inquiries, that having a his Attorney General on his string would make all presidential criminality disappear — look pretty naive today. Last week’s news about the Jan. 29 letter from Trump’s attorneys to Mueller clearly suggests that everyone involved knows exactly what time it is.
Though his lawyers deny all accusations of their client’s criminality, their January letter implicitly confirms that Mueller is aware of Trump’s direct involvement in collusion with Russia and other criminal activities. It’s basically a 20-page letter that can be summarized down to one sentence: “When you come for Donald, he’ll take his chances on the most extreme Constitutional interpretation of Presidential power.”
We don’t yet know which reported development convinced Trump and his lawyers that the game was up. They appear to have crossed the Rubicon in December, so it could have been any one of several headlines. Ever since, Trump et al have been preparing the battleground: Carpet bombing conservatives with the Deep State conspiracy, saturating the airwaves with Rudy Giuliani’s strange public messages to Mueller, etc., and Tweeting claims to extraordinary Presidential power.
So here’s where I suspect things stand with the investigation:
- Mueller already possesses evidence and testimony sufficient to indict all the key players in Trump’s campaign with illegal conspiracy to defraud the United States through various acts of criminal collusion with Russia to influence the 2016 election. I suspect that evidence already includes testimony that confirms Trump was at least briefed on some of the illegal entreaties.
- There is, of course, public domain evidence sufficient to convict Trump of obstruction of justice, plus a Watergate-era precedent (not airtight, IMHO) that says the President is not immune to obstruction of justice.
- Since Trump is formally “not a target” of the investigation, Mueller’s negotiations with Team Trump appear to be predicated on the idea that it’s important that the Special Counsel be allowed to question the President about his “state of mind” about things like firing Comey, etc. Determining Trump’s intent is allegedly important in determining whether or not he deliberately obstructed justice.
- This is, I believe, theater. The articles of impeachment drafted for Richard Nixon didn’t require him to be interviewed on his “state of mind.” Mueller knows this. Trump’s attorneys know this.
- I suspect Mueller wants what the rest of us want: An unambiguous accounting of what happened between Russia and the Trump campaign/administration beginning in 2016. He knows what we know: The “easy” proof that Trump et al obstructed justice in 2017 is like convicting Al Capone on tax evasion. Mueller’s goal here isn’t just removing a corrupt President: It’s proving and repudiating Trump’s criminal disloyalty to the United States in 2016.
WHERE THAT PUTS TEAM TRUMP
If I’m close to right, then Mueller’s primary interest in interviewing the President is asking him, under oath, questions related to the criminal acts he directed or knew about before the election.
Giuliani has spoken on television about wanting to keep the President out of a “perjury trap,” and that’s a concern his attorneys should have. Trump is a serial liar, he’s lied about every aspect of this investigation, and if he speaks to Mueller under oath he’ll either commit multiple counts of criminal perjury, or he’ll be exposed as lying not only to Americans, but to American conservatives. It’s a no-win for them.
But here’s the point: Trump’s future depends on his ability to claim that he’s innocent of the primary crime: Quid pro quo collusion between him and the Russians, trading U.S. government favors to the Kremlin for help during the campaign. And since Mueller is unlikely to accept an “interview” with the President that restricts from asking questions about collusion, it’s unlikely that any interview will occur.
Here’s where I suspect that leaves the Trump defense team:
- They cannot, under any circumstances, allow President Trump to testify under oath. Ever.
- They understand that this won’t stop Mueller from delivering a report that outlines Trump’s criminality.
- Since the seemingly inevitable result of the Mueller probe is a slew of criminal indictments for both collusion and obstruction, Team Trump is now focused on shaping public opinion in preparation for that day, and competing with the Special Counsel’s influence over potential witnesses.
- They’re competing for witness loyalty in two ways that I can see: First, by signalling that the President will offer political pardons without participating in judicial review, and second, by contending that the Constitution explicitly gives the president “unlimited power to pardon” while simultaneously implying that the President cannot be convicted of obstruction. In other words, every witness who remains loyal to Trump will be pardoned — before or after testimony.
- If it boils down to it, Trump says, he can always pardon himself. But let’s not go too far down that rabbit hole. In the first place, it’s not clear that he can. Beyond that, once the report is out, it’s not clear that a self-pardon would matter. If Trump nukes the Rule of Law by pardoning himself and all his co-conspirators, Republican lawmakers will face some pretty stark consequences when it comes to impeachment.
WHAT HAPPENS WHEN THINGS HAPPEN?
In summary, I suspect that we’ll learn that Trump is formally a subject of Mueller’s investigation on the day that the Special Counsel delivers his report to Deputy Attorney General Rod Rosenstein, and not before.
I suspect that if Trump learns in advance that Mueller has presented his report to Rosenstein, or is about to do so, Trump will seek to confirm whether Mueller has named him as a conspirator. Once he’s confirmed this, Trump will attempt to prevent Rosenstein from giving the report to Congress or sharing it with prosecutors. Failing to do either one of these things, Trump would then begin firing people at the Department of Justice.
But since Mueller and Rosenstein must both anticipate this scenario, it stands to reason that they’ll seek to preempt it. As I understand the watered-down special counsel statute, the law requires only that Mueller submit a report on his investigation to Rosenstein. Rosenstein is not required to do anything with the report, but it stands to reason that if the report recommends criminal actions, he would be expected to share it with federal prosecutors and Congress.
Therefore, I suspect that the Trump White House will learn that Mueller has submitted his report to Rosenstein in the same way the rest of us will: On television.
I suspect that Trump will attempt to prevent Rosenstein from delivering the report to Congress, but that the report will be simultaneously arriving in the hands of senior Capitol Hill Republicans and Democrats as the news breaks on cable television. Whether Trump will attempt to fire Sessions and Rosenstein once the report is in the hands of Rep. Adam Schiff (D-Calif.) and Sen. Mark Warner (D-Va.) is anyone’s guess.
So there’s your end game: Multiple criminal indictments against Trump associates and family members, while the President, like Nixon, is cited as an “unindicted co-conspirator.” A flurry of news about negotiations over how criminal defendants in the White House will be taken into custody, followed quickly news that the Special Counsel has presented multiple requests for search warrants to judges in the District of Columbia and Manhattan.
And as that drama unfolds, we’ll finally see whatever Berlin Bunker scenario gambit Trump’s attorneys have prepared for their worst-case scenario.
If Mueller has nailed down the key elements of his primary collusion and corruption case — documents, tapes, confessions, testimony — things will happen quickly. The GOP will be taking a huge risk if it lashes itself to a man who has been caught red-handed in a series of treasonous acts. It will be in many people’s interests to bring things to a quick conclusion.
If he has not — if the thrust of the case is perjury or obstruction — then we could be looking at the Constitutional Law equivalent of trench warfare. Trump’s supporters are well prepared to defend their President against a “Deep State coup d’etat” based on evidence of “NCAA Recruiting violations,” just “minor procedural infractions.” And with its own captive media and a 5-to-4 stolen majority on the Supreme Court, Republicans might be persuaded to roll the dice on winning a war of attrition.
Will Trump preemptively pardon all those indicted? Will Republican leaders strike a deal with Trump that allows him to resign with some promise of protection from federal prosecution? What role will Pence play?
Who knows? But I think we can see the outlines of a few possible futures coming into focus, and the best hope I can offer is “It’s going to get worse before it gets better.”