Expectations are rising in Washington that, shortly after the midterm elections, special counsel Robert Mueller will do … something.
Some believe he’s gearing up to complete a report on Donald Trump’s conduct that will wrap up his probe. Others think he’s readying for major new indictments against high-level players in Trumpworld. And some conservatives say they see signs Mueller is “winding down” his efforts because he hasn’t found much else.
Whatever may be coming next — and Mueller, of course, isn’t commenting on what it might be — the post-election period has long seemed a very plausible time for it, for a few reasons.
First is that the Justice Department’s informal preelection “quiet period” — the norm that investigators shouldn’t rock the boat shortly before an election — will be over. Second, the special counsel asked a court to set key presentencing deadlines for Michael Flynn after the election, a process that could reveal new details about Flynn’s cooperation. Finally, once the election is done, Trump may finally act to push out top Justice Department officials like Jeff Sessions and Rod Rosenstein — so Mueller may have an incentive to make his next move quickly.
In the midst of all this speculation comes a new report from Bloomberg’s Chris Strohm, Greg Farrell, and Shannon Pettypiece, which cites “two US officials” saying that Mueller “is close to rendering judgment” on whether Trump’s campaign colluded with Russia to interfere with the election, and whether Trump tried to obstruct justice while in office. The Bloomberg team claims Mueller “is expected” to issue these “findings” shortly after the election, per their sources.
Now, we should take anonymous people’s claims to know Mueller’s plans with some grains of salt — his team has been remarkably leak-proof. But this is the buzz that’s currently going around. And if it’s accurate, the weeks following November 6 could be very eventful indeed. So here are a few scenarios for what the endgame might be.
Scenario #1: Mueller completes a report
Probably the most common theory of Mueller’s endgame is that he is planning to finish up with a big report.
This is what independent counsel Ken Starr did during the Clinton Administration: He sent a report to Congress, which Republicans then used as the basis for their impeachment push. The special counsel regulation mentions “a report” at the conclusion of the investigation. It’s widely believed that Mueller won’t indict a sitting president, so a report would seem to be an alternative to that.
Trump’s team has told journalists that Mueller has indicated to them that he will write a report, at least on the obstruction of justice question — though Mueller has, notably, never confirmed this is his plan.
But even if this is the plan, there are many major questions about what such a report would entail.
For one, Mueller does not have the same authority as Ken Starr did. Starr was appointed under the expired independent counsel statute. But Mueller’s special counsel regulation states: “At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”
First, note that this report is supposed to be “confidential,” raising questions about whether it would ever be disclosed to the public. And second, it’s submitted to the attorney general, not Congress. In this case, that would be Deputy Attorney General Rod Rosenstein, since Sessions is recused. Would Rosenstein give such a report to Congress?
I’d expect that, should Mueller finish up with a big report, it would end up becoming public one way or another. Still, there are many questions about how it would play out — not least of which is whether the report will be damning, exonerating, or somewhere in between.
Scenario #2: Mueller is preparing more big indictments
Alternatively, there’s the possibility that Mueller’s next move will look much like his previous moves — that it will be an indictment.
A new indictment could come in addition to a big report on Trump’s conduct. For instance, there’s still the unresolved matter of Roger Stone. Mueller’s team focused on him quite intently, hauling a plethora of his associates in to give grand jury testimony this year. Many have expected this was a prelude to a Stone indictment, but no charges have yet materialized.
Yet there’s also a theory that Mueller will finish up with big new indictments instead of a report. Independent journalist Marcy Wheeler has long been a vocal skeptic of the “report” talk and has made several interesting points about this at her site EmptyWheel.
For one, Mueller has seemed to “speak” through his indictments and plea documents so far, often seeming to use them to tell a story. This was particularly the case for his indictments of Russians, but many remarked that the criminal information document in Paul Manafort’s recent plea deal was unusually detailed (even including exhibits).
Wheeler has also pointed out that the lead charge Mueller has filed against Paul Manafort, Rick Gates, the Russian troll farm, and Russian intelligence officers involved in hacking has been the same: conspiracy.
So in response to the frequent refrain from the president’s defenders that “collusion” is not even a crime, Wheeler has suggested that Mueller is building up instead to “conspiracy” indictments of major Trumpworld figures who were involved to some extent in Russian interference — and that though Trump himself may not be indicted, these indictments may well lay out his own conduct.
And with the continuing cooperation of Rick Gates, the newfound cooperation of Paul Manafort, and voluntary help from Michael Cohen, perhaps investigators finally have the information they need for those big indictments.
Scenario #3: a quiet conclusion
The flip side of the previous scenario is the theory, popular on the right, that Mueller is actually building toward an anticlimactic end to his investigation because he’s come up empty on his central charge.
Despite charging 32 people with various crimes, Mueller has not yet charged any Trump aides with criminally working with Russia to interfere with the 2016 election. The right has seized on this as the glaring omission that justifies skepticism about the entire Russia scandal. “At this point, it does not appear that Mueller has a collusion case against Trump associates,” National Review’s Andrew McCarthy wrote last month.
These skeptics look at events like Paul Manafort’s plea deal and theorize that, far from delivering the goods to take down Trump, this is instead a predictable resolution to Manafort’s unrelated crimes — crimes that have nothing to do with Trump. And his cooperation doesn’t necessarily have to be about Trump; it could involve lawyers or lobbyists who worked with him on his Ukraine work, or even Russians.
Still, even in the rosy interpretation put out by Trump’s lawyers, in which Mueller has nothing on collusion, they say they still fear “a damaging report to Congress about whether the president obstructed justice” (as the New York Times characterized their thinking).
While there’s surely a bit of wishful thinking to all this, there is, of course, wishful thinking among Trump critics in the other direction, too. We should keep in mind that many past political investigations that partisans have put their hopes into — from Plamegate to the Clinton email probe — have ended up petering out without the hoped-for bombshell revelations.
And Mueller certainly hasn’t promised any bombshell revelations. For all we know, after the election, Mueller will announce he’s shutting down the probe with no further action. He simply isn’t saying.