Mueller’s Investigation Cannot Be Stopped So Easily

What does the meteoric rise of Matthew Whitaker to the position of acting Attorney General mean for the Russia investigation? That’s still unclear, but Charlie Savage at the New York Times does a good job of spelling out the possibilities:

The acting attorney general establishes the special counsel’s jurisdiction and budget. He could tell Mr. Mueller to stop investigating a particular matter or could refuse any requests by Mr. Mueller to expand his investigation. He could also curtail resources to the Office of the Special Counsel, requiring Mr. Mueller to downsize his staff or resources.

Moreover, Mr. Whitaker could block Mr. Mueller from pursuing investigative steps, like subpoenaing Mr. Trump or issuing new indictments. When Mr. Rosenstein appointed Mr. Mueller, he decreed that the Justice Department’s regulations for special counsels would apply to the Russia investigation.

Among other things, that regulation says that while the special counsel operates with day-to-day independence, the attorney general for the inquiry can require him to explain “any investigative or prosecutorial step,” and may overrule any moves that he decides are “inappropriate or unwarranted under established department practices.”

Under the regulation, if Mr. Whitaker were to block any of Mr. Mueller’s steps, Congress must be notified.

The last point there is a critical one. If there is any check on what steps Whitaker can take to obstruct justice, it’s the requirement that he notify Congress when he blocks a request from Robert Mueller. While there’s certainly no reason to assume Whitaker would comply with this requirement, he knows that Mueller could easily tell Congress on his own. That raises the price of every obstructive step, because ultimately those choices cannot be made in the dark.

We should be clear that Whitaker was chosen for a reason. He’s not in the natural line of succession at the Department of Justice. He was Jeff Sessions’s chief of staff. The deputy is Rod Rosenstein, and he was already overseeing the Russia investigation. In fact, he was the one who authorized it in the first place. Rosenstein should take over the DOJ now that that Sessions has resigned, but Trump circumvented that possibility.

Whitaker is expected to do what Jeff Sessions could not once he recused himself, which is to protect the president from Robert Mueller. We don’t know how he plans to do this, but we can be sure that he has a plan and that it has been developed over a period of time.

At the Washington Post, Philip Allen Lacovara, a former president of the District of Columbia Bar and counsel to the Watergate special prosecutors, is raising alarm bells and blaming Mueller for taking too long and missing his chance to have any impact with his investigation. I agree with most of what Mr. Lacovara has to say, but I think he’s too certain in a couple of areas. For example, the following isn’t really solid analysis. We don’t know what Mueller has uncovered, so we can’t say whether it could reach the admittedly high threshold that would force a significant fraction of Republican senators to tell the president he would lose an impeachment trial.

It is almost inconceivable that Mueller would be able to uncover the kind of smoking-gun evidence that, in 1974, led key Republican senators to warn President Richard M. Nixon that he would lose an impeachment trial in the Senate, thus forcing his resignation. Even an incriminating recording such as the one that helped bring down Nixon would not suffice. Recall how Trump, during the presidential campaign, finessed the infamous “Access Hollywood” tape revealing his bragging about groping women — his imaginative suggestion that the voice on the tape might not be his seems to have been accepted by many of his credulous supporters.

Given Senate Republicans’ ardent support for Trump, and their fortified majority, House Democrats likely would face an impossible task in pursuing an effective impeachment, no matter what Mueller uncovers.

There’s a lack of imagination in asserting that it’s “almost inconceivable that Mueller would be able to uncover … smoking-gun evidence.” He’s been at this investigation for a long time, and has had tremendous investigatory resources at his disposal. In Mueller’s July 2018 indictment of 12 Russian GRU officers, it became obvious that he’d gained insight into the key strokes of Russian military intelligence officers who were working at computers at Unit 26165 in their offices at 20 Komsomolskiy Prospekt Street in Moscow. He has not been playing tiddlywinks.

Where Mr. Lacovara is on more solid ground is in asserting that the bar just got higher after the midterm elections failed to turn control of the Senate over to the Democrats and, in fact, increased the Republicans’ majority instead.    He’s also correct when he says that the current crop of Republicans would not have forced Nixon out.  But what Trump is suspected of having done is several orders of magnitude more serious than what Nixon did, so this isn’t an apples to apples comparison.  It is indeed possible that Mueller will produce a report that absolutely warrants impeachment and removal from office, essentially a totally convincing and compelling proof of the conspiracy complete with firsthand testimony from participants and substantial corroborating technical and electronic evidence, and that the Republican spin machine will shrug and say it was just politics.  They may swat away an additional rock-solid obstruction of justice case. But it’s hardly inconceivable that Mueller could clear the bar and force a substantial number of Republican senators to admit that what Trump has been accused of all along is true and that he cannot remain in office.

Whitaker’s job isn’t to spin Mueller’s report but to prevent him from completing it to his satisfaction or from sharing it with Congress or the world.  But the problem here, in additional to the congressional disclosure requirement mentioned above, is that Mueller could just leak the document and destroy all Whitaker’s plans in an instant. In fact, once the public has read the report, no amount of complaining about foul play would help, and it would actually make matters worse as it would bolster the impression that the administration was guilty of all the charges and intent on covering the whole thing up.

It would take much stronger measures to keep this cat in the bag, like a pre-dawn raid of Mueller’s offices to confiscate all his materials, probably accompanied by Mueller’s arrest along with his members of his investigatory team. But, even there, it’s not safe to assume that Mueller hasn’t taken measures to protect and preserve his evidence and provide for its dissemination in case of emergency.  Some of his evidence is in the possession of judges who have it under seal.  I don’t think it would be possible to quash his investigation without taking measures that would amount to a military coup.

What Whitaker absolutely can do with almost no difficulty is to get a full briefing on the state of the investigation and report back on it to the president and his legal team.  He can also force Mueller to take actions that are legally questionable, like leaking to Congress or the public, which could be used to undermine his credibility or justify his termination.  Something like this is likely to happen now, because the gloves have come off.

The word is that Donald Trump Jr. expects to be indicted for lying to Congress and to Mueller’s investigators, and that would create an unprecedented spectacle. It would completely reshape the political landscape and reshuffle people’s assumptions, but it is no longer “almost inconceivable.”

Whitaker is in place to deal with these kinds of coming events but it’s very conceivable that his actions will do less to cover them up than to make them worse.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.