The Mueller Factor in the Upcoming Midterms

Someone familiar with Trump’s legal team obviously talked to Carol Leonnig and Robert Costa about discussions that have taken place recently with the Mueller team. It is important to keep the likely source in mind when assessing last night’s bombshell in the Washington Post. Here is the major news from that story:

The special counsel also told Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations.

Costa elaborated last night on MSNBC.

If this reporting is correct, Mueller is planning to send a report on the obstruction investigation to Deputy Attorney General Rod Rosenstein in June or July. It will then be up to Rosenstein to decide whether or not to make that public.

The other news from this report is that Mueller’s team informed Trump’s lawyers that the president is currently a subject in the investigation, but not a target. Here’s the difference:

A “target” is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant …

A “subject” of an investigation is a person whose conduct is within the scope of the grand jury’s investigation.

As many people are speculating, letting Trump know that he is not a target at this point is probably an attempt to lure him into an interview with the investigators. It might be working.

The president has privately expressed relief at the description of his legal status, which has increased his determination to agree to a special counsel interview, the people said. He has repeatedly told allies that he is not a target of the probe and believes an interview will help him put the matter behind him, friends said.

All of that leads us to imagine what might be coming this summer, just as candidates hit the campaign trail for the November midterms. If Mueller sends a report to Rosenstein, the first question will be whether he releases it publicly. The second will be how Mueller interprets the Justice Department regulations under which he was appointed, especially in terms of their restrictions on his reports.

Mueller was appointed by Deputy Attorney General Rod Rosenstein last May under little-used Justice Department regulations that seem to limit the possibility of a far-ranging report on the special counsel’s findings. The rules do require reporting to Congress in the event that Rosenstein were to block a proposed prosecution by Mueller, but without such a disagreement it’s unclear that lawmakers would be automatically notified.

Congress might try to subpoena whatever written summary Mueller’s team gives to Rosenstein, but the regulations suggest that would only come at the end of the special counsel’s probe, which seems certain to continue until the end of this year and perhaps well into 2019.

For those who might be interested in taking a deep dive into the legal questions raised, competing theories about what all of that means have been written at Lawfare. A more generous interpretation of Mueller’s options comes from Quinta Jurecic and Benjamin Wittes, while Jack Goldsmith and Maddie McMahon emphasize the limits.

Those are the legal questions, but based on what we’ve seen from Mueller so far, we should have a lot of confidence in the fact that he will have thought through all of the options and crafted a strategy.

The other considerations about what could be coming this summer are political. It is worth keeping in mind that not only will candidates have to address the possibility of a president accused of obstructing justice, two separate cases against Paul Manafort are scheduled to go to trial in July and September. If those go forward, Mueller’s team will be publicly prosecuting the president’s former campaign manager right before the midterm elections.

The election prognosticators have all been busy telling us how the November midterms are shaping up. They have two tools with which to make their predictions: polls and historical precedents. I’d go out on a limb to suggest that it is very possible that the latter will be meaningless this time around. Given what we are likely to experience from July on through to the election, this one is shaping up to be unprecedented.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.