russia investigation

Mueller’s Gone Quiet, But Expect Some Post-Midterms Surprises

Remember me? Photo: Chip Somodevilla/Getty Images

Aside from Robert Mueller and his direct supervisor, Rod Rosenstein, there’s probably no one who knows more about the deepest secrets of the Russia investigation than the chief judge of the federal district court in Washington. Since even before the special counsel went public with his first prosecutions a little over a year ago, Chief Judge Beryl Howell has been at the center of key aspects of the government’s sprawling criminal inquiry, like overseeing the federal grand jury investigating whether there was a conspiracy between the Trump campaign and the Kremlin to tip the 2016 election.

Last week Chief Judge Howell had the rare honor of unsealing a historic document from another high-profile investigation: the so-called “Watergate road map,” a grand jury report that special prosecutor Leon Jaworski drafted for the benefit of the House Judiciary Committee investigating wrongdoing by President Richard Nixon. Made public in response to a freedom of information request, the road map matters not just for historical purposes, but also because it is a devastating, play-by-play account of the investigative steps a special prosecutor in a different era took to expose the crimes of a sitting president.

The legal framework that gave Jaworski authority to do this no longer exists, and the regulations governing Mueller’s office only include very limited reports to Congress. Yet there has long been an expectation that the special counsel or Rosenstein will transmit to lawmakers a report on their investigative steps in the Russia investigation, including a breakdown of all the ways President Trump has attempted to obstruct justice by, say, firing FBI director James Comey or floating pardons for Michael Flynn and Paul Manafort. As flagged in Lawfare, what’s striking about the Watergate road map is how unpretentious and by-the-book it is; it is not the product of an overzealous, overreactive prosecutor in the mold of Kenneth Starr, but rather a modest document that is careful to simply present facts, avoid legal conclusions, and defer to Congress. That’s more or less Mueller’s style of doing things, so it wouldn’t be at all surprising if the special counsel has read the Watergate road map to inform his own thinking about how he’ll communicate his findings to lawmakers.

If Democrats take the House on Tuesday, it will be open season on all sorts of congressional investigations of the presidency, including strands of the Russia probe that have long been abandoned — if not outright ignored — by House Republicans. Independent of congressional politics, Mueller’s operation has kept a low profile but remained quite busy, clearly unburdened by Rudy Giuliani’s farcical 60-day rule against investigative steps in the lead-up to an election.

For instance, the federal grand jury out of Washington is still haunting Roger Stone — not by calling him to appear, but by summoning his allies and former associates, many of whom have gone on to testify about their preelection dealings with the longtime Republican operative and Trump loyalist. Stone, who otherwise seems convinced he is Mueller’s next target, isn’t doing himself any favors: He keeps changing his story about his contacts with WikiLeaks and his alleged role in the dissemination of Russian-hacked emails that proved damaging to the electoral prospects of Hillary Clinton.

So far, Stone has denied it all, choosing to defend himself in the court of public opinion even before a court of law gets jurisdiction over him (though he’s beefing up his legal team, too). “What I am guilty of is using publicly available information and a solid tip to bluff, posture, hype and punk Democrats on Twitter,” Stone declared in his latest column for the Daily Caller (he is listed as the site’s “men’s fashion editor,” but it’s also his preferred outlet for responding to the latest reports on Mueller’s work). “This is called politics. It’s not illegal,” he wrote.

What is or isn’t legal is not for Stone to determine, which is why there is an active grand jury probing his interactions. But his tune sounds an awful lot like that of the Trump campaign itself, which is in court in Virginia trying to dismiss a civil lawsuit accusing it of conspiring with Russia to disrupt the privacy and lives of a Democratic staffer and two Democratic donors whose personal information became public as a result of the hacks. The case has little to do with the Mueller investigation, but the Trump campaign is using it as a trial balloon of sorts to assert a sweeping First Amendment right to publish stolen emails under a theory that the campaign deserves similar constitutional protections as journalists doing their job.

“In effect, the Trump campaign’s lawyers are preparing to pivot from the claim that there was ‘no collusion’ to the claim that collusion is constitutionally protected,” wrote Just Security’s Ryan Goodman and Bob Bauer, both of whom worried that this under-the-radar case could, as a matter of constitutional law, shield campaigns that in the future decide to collude with a foreign power for political advantage. (The swamp is all over this challenge: The law firm representing the Trump campaign, Jones Day, happens to be the firm that gave us Donald McGahn, the onetime White House counsel, and Noel Francisco, the Justice Department official that could inherit supervision of the Russia investigation if Rosenstein is shown the door.)

In July, Mueller secured indictments against the Russian intelligence officers accused of scheming to hack and leak Democratic emails, but there has yet to be anything filed against Stone. Though Stone wasn’t mentioned by name, Mueller’s office did drop a hint in those indictments: there was an American intermediary in the enterprise “who was in regular contact with senior members of the presidential campaign.” The only remaining question is the extent of the links between Stone, WikiLeaks, and the Trump campaign, and whether they amount to a crime Mueller can charge. For Stone’s money, it’s all politics as usual.

(A corollary of grand jurors’ interest in Stone is that one of his former associates, Andrew Miller, is now mounting a challenge to the constitutionality of Mueller’s appointment, and he intends to go to the Supreme Court if necessary. In August, Chief Judge Howell upheld the appointment but held Miller in contempt of court for refusing to appear before the grand jury. On Thursday, lawyers for Miller and the special counsel will duke it out before a federal appeals court in Washington. I fully expect Mueller, who is sending consummate appellate expert Michael Dreeben to represent his office, to win.)

Apart from filing a report to Congress and addressing Stone’s fate, Mueller may have some other postelection surprises up his sleeve. The week before Christmas, Michael Flynn, Trump’s first and shortest-serving national security adviser, will go before a federal judge to be sentenced for lying to the FBI about the extent of his dealings with Sergey Kislyak, the Russian ambassador. When Flynn pleaded guilty last December, the special counsel included a clause in his plea agreement promising to ask the court for leniency at sentencing. The catch: In the course of his cooperation, Flynn must provide “substantial assistance in the investigation or prosecution of another person who has committed an offense.” If Flynn truly sang for federal prosecutors, Mueller’s holiday gift to the president may just be another indictment of a person close to him.

The popular imagination likes to place Mueller and Trump in a constitutional clash that could define the fate of the republic. Trump, for his part, likes to think of the special counsel and his team as a group of “angry Democrats” working to undermine a duly elected Republican chief executive. The true nature of what remains of the Russia mystery is neither of those things. In the same way that Mueller has declined to comment publicly on his work or dignify sleazy attacks on his person, he will continue to keep his head down and only go where the facts and the law lead him. To let his own work do the talking for him.

That’s what special prosecutor Leon Jaworski did with the Watergate grand jury and what Mueller is doing with the one that has quietly returned indictments against a constellation of Trump figures. As with those cases, whenever it’s time for the next hammer to drop, it will.

Mueller’s Gone Quiet, But Expect Post-Midterms Surprises