Editor’s Note: Elie Honig is a former federal and state prosecutor and currently a Rutgers University scholar. The views expressed in this commentary are his own. View more opinion articles on CNN.
Special counsel Robert Mueller’s office has been busy interviewing witnesses, running a grand jury and moving along its cases during the pre-election quiet period that Justice Department rules specify, CNN reported Wednesday.
Bloomberg reported, citing two US officials, that Mueller “is expected to issue findings on core aspects of his Russia probe soon after the November midterm elections,” including “two of the most explosive aspects of his inquiry”: whether Donald Trump’s 2016 campaign colluded with Russia, and whether the President’s actions constitute obstruction of justice.
Given political uncertainty over who will lead the Department of Justice after the midterms, Mueller would be wise to issue a report to preserve his findings and to prevent his work from being watered down or concealed from Congress or the public. Regardless, Mueller’s investigation is – or at least should be, if it is properly insulated from political interference – far from over.
While it remains unclear what the political world will look like after November 6, one thing seems nearly certain: Attorney General Jeff Sessions is a goner. Trump has berated Sessions publicly, calling him “weak,” “beleaguered” and “scared stiff and Missing in Action.” Trump’s primary complaint is that Sessions recused himself from the investigation into Russian interference in the 2016 election – a move Trump has called “very unfair to the President.”
As a result, Sessions has not been able to influence Mueller’s investigation – much to the dismay of Trump, who has explicitly called on the attorney general to reverse his recusal and “stop this Rigged Witch Hunt right now.” The future of Deputy Attorney General Rod Rosenstein, who oversees the Mueller probe in light of Sessions’ recusal, also hangs in the balance following reports he considered secretly recording Trump and invoking the 25th Amendment.
If Trump replaces either Sessions or Rosenstein, then Mueller will have a new boss. While there is no way to predict how that person would handle the special counsel, Trump has made it perfectly clear through tweets and public statements that he wants Mueller’s “Rigged Witch Hunt” to be either curtailed or terminated. To safeguard against this possibility, Mueller needs to preserve the work he has done and the findings he has made, which surely extend beyond the indictments and other court filings that have been made public.
By filing a report on the investigation thus far, Mueller can put a message in a bottle for Congress and the public, should his ship be upended by political forces. (It’s not clear that such a report would be made public; the decision whether to do so is up to Rosenstein.)
While Mueller has already issued criminal charges against more than 30 people – including Paul Manafort, Michael Flynn, Rick Gates and George Papadopoulos – he still has plenty of work ahead. In September, Manafort pleaded guilty to two counts of conspiracy and reached a cooperation agreement with Mueller.
Prosecutors do not hand out cooperation agreements casually, particularly to defendants like Manafort who have already been convicted at trial. Mueller, therefore, must believe that Manafort can provide valuable information leading to new indictments of major players. Mueller will be particularly interested in any knowledge Manafort has regarding the June 2016 Trump Tower meeting he attended with Donald Trump Jr., Jared Kushner and a team of Russian emissaries who offered the Trump campaign damaging information on Hillary Clinton.
CNN reported that Michael Cohen met Wednesday with state and federal law enforcement officials investigating President Trump’s business and charitable foundation. According to Vanity Fair, which cited two sources familiar with the matter, Cohen has spent more than 50 hours meeting with federal investigators. (While Cohen has been charged by the Southern District of New York, based on a referral from Mueller, there is no impediment to the Southern District sharing Cohen’s cooperation with Mueller; in fact, federal agencies commonly share information from cooperators that might relate to overlapping investigations).
Cohen has made it abundantly clear that he will cooperate, and no prosecutor would spend 50 hours debriefing a witness unless that witness has valuable and actionable information about significant targets. Prosecutors are likely to focus on Cohen’s guilty plea to campaign finance violations relating to efforts to pay hush money to Stephanie Clifford and Karen McDougal.
During his guilty plea, Cohen stated under oath that he had committed the campaign finance offenses “in coordination with and at the direction of a candidate for federal office.” Prosecutors are likely working with Cohen to develop corroborating evidence relating to Trump and others who may have been involved in the illegal campaign payments.
Finally, Mueller does not seem ready to walk away from Trump himself just yet. While Mueller is reportedly willing to accept written answers from the President in lieu of grand jury testimony on Russian collusion, it does not appear the special counsel is willing to settle for written answers regarding obstruction of justice. If Trump’s team resists Mueller’s efforts to question the President in person, the special counsel could issue a subpoena – which could kick off a lengthy legal battle that is likely to wind up at the Supreme Court.
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Trump’s defenders have tried to convince the public that Mueller’s investigation has taken too long. Former Trump attorney Ty Cobb played this card as early as August 2017, when Mueller was only four months into the investigation.
In June 2018, Congressman Trey Gowdy told Rosenstein to “finish the hell up.” The fact is, Mueller’s investigation – which is not yet a year and a half old – has not remotely approached the duration of other politically volatile special counsel or independent counsel investigations, including Whitewater, Scooter Libby and Iran-contra.
Given the dynamic political situation that is rapidly approaching with midterm elections, Mueller might decide to protect himself – and his investigation – by filing a formal written report memorializing his findings to date. But such a report should not be mistaken for the end of Mueller’s probe. Mueller still has plenty of work to do, and his most consequential prosecutorial actions likely still lie ahead.