How Robert Mueller could finesse his endgame

Sources: Trump not a target in Mueller probe
Sources: Trump not a target in Mueller probe

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Sources: Trump not a target in Mueller probe 02:35

Mark Osler is a professor of law at the University of St. Thomas Law School in Minnesota and is a former federal prosecutor. He is the author of "Jesus on Death Row," a book about capital punishment. Follow him on Twitter @Oslerguy. The opinions expressed in this commentary are solely those of the author.

(CNN)If you want everyone to like you, don't become a prosecutor. The job ensures that, in almost every case, at least one person will be unhappy with you, regardless of your choices. The best prosecutors tend not to care too much about popularity. That's good because public outcry, the wishes of defendants, and political pressures don't always run in the same direction as justice.

Mark Osler
In that sense, Robert Mueller, the special counsel overseeing the Russia investigation, appears to be a consummately good prosecutor. As his investigation has advanced, there have been few leaks and he avoids the media. When tidbits of information do emerge, he does nothing to address the questions raised.
Most recently, those tidbits included a report by the Washington Post that revealed two seemingly contradictory pieces of information: that Mueller's team is "continuing to investigate" President Donald Trump, but "does not consider him a criminal target at this point." How can both things be true?
    The answer probably lies in the rules governing the special counsel. They tell us that Mueller is charged with preparing a confidential report to the attorney general "upon conclusion of the special counsel's investigation," and that the attorney general then is to prepare his own report to Congress. The special counsel rules were changed after Kenneth Starr's 1998 report on Bill Clinton, with the express purpose of avoiding the problems associated with that very public publication.
    If Trump is not a criminal target, that does not necessarily mean that Mueller has insufficient evidence to charge Trump; rather, it may indicate that Mueller reads the Constitution to mean that impeachment rather than indictment is the appropriate remedy for any serious presidential malfeasance. He could be preparing a report that recommends impeachment even while he refrains from indictment -- and, thus, Trump could be under investigation while not a criminal target.
    As special counsel, Mueller's role is defined and limited by federal regulations: the mundane-sounding 28 C.F.R. §600.3-8. Those rules give Mueller the powers of a United States attorney, meaning that he can direct a criminal investigation, seek charges from a grand jury, negotiate pleas, and prosecute cases through to sentencing. He has done exactly that in charging some Trump associates and Russian operatives.
    Mueller's team questioning Russian oligarchs
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    Beyond that, 28 C.F.R. §600.8 makes a very specific demand of Mueller: that "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." In other words, there will be no blockbuster news conference. Rather, Mueller will finish his task by reporting privately to his boss (which, given the recusal of Attorney General Jeff Sessions, would be Deputy Attorney General Rod Rosenstein).
    Conceivably, such a report could include a recommendation of impeachment. Those same regulations tell us what happens next, too. Once Mueller reports to (in this case) the deputy attorney general, Rosenstein is then to report to the chair and ranking minority member of both the House and Senate Judiciary Committees, possibly while rejecting the special counsel's advice.
    To a strategist like Mueller, timing is going to be very important. His "final report" needs to come at the end of his work, and that means completing his prosecution tasks. Therein lies the rub -- and the possibility of another option.
    It seems quite possible that Mueller could end up indicting some of those in Trump's inner circle. Those charges might trigger one or both of two things: Mueller being fired, and some or all of these defendants receiving pardons. Both actions would be hugely controversial and would rattle the already-shaken faith of the American people in our political structures.
    To finesse that situation, Mueller might try to seek indictments and file his final report at once. That isn't true to his mission, though, which includes prosecuting to conclusion the cases he brings -- meaning that he is unlikely to submit a "concluding" report recommending impeachment (or not) until all of the defendants are -- potentially -- sentenced.
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    There is another possibility, and it might be the most likely: Mueller might try to submit a confidential impeachment recommendation prior to concluding his work, in the form of a "notification of significant events."
    The federal regulation, 28 C.F.R. §600.8, allows for that, noting that such a report needs to be "in conformity with the departmental guidelines with respect to urgent reports."
    "Urgent reports" are just as exciting as you might expect, too -- they are required when there is a law enforcement emergency, when national media attention is anticipated, or where there are "major developments in significant investigations and litigation."
    The finding of evidence supporting an impeachment recommendation certainly seems to fit this last description, and this route would allow Mueller to take the risky step of indicting the inner circle, making his recommendation, and going forward as long as he can.
    No matter what Mueller chooses, in action or inaction, some will be upset. Mueller, the good prosecutor, knows this well. Hopefully, he just doesn't care.