Special counsel Robert Mueller is widely thought to be on the brink of issuing his findings — in the form of indictments, a report, or both — related to the most significant allegations against Donald Trump.
According to Bloomberg reporters Chris Strohm, Greg Farrell, and Shannon Pettypiece, “Mueller is close to rendering judgment” on whether there was collusion between Russia and Trump’s campaign and whether Trump obstructed justice — but he’s planning to wait until after the midterms to act on his findings.
This is presumably at least in part due to Justice Department tradition (rather than a firm guideline) that prosecutors avoid dropping politically-sensitive bombs close to elections. The intent is to maintain the appearance that law enforcement is entirely free of political considerations. And while that may sound quaint in this day and age, it remains very much the case that for prosecutors to act with the intent of influencing an election would be a dangerous and deeply troubling abuse of power.
But if Mueller has collected overwhelming evidence that the Republican Party and/or its leader have been complicit in serious crimes, doesn’t the public deserve to know now, before the election?
So consider this possibility: Republicans retain the Senate in the midterms, giving them the power to confirm any Trump appointee they want, and when Mueller finally decides to share the information he has collected, it is so profoundly damning that it might indeed have tilted the election.
In that case, isn’t not acting actually the worse sin?
The specter of former FBI director James Comey is surely haunting Mueller and affecting his thinking. But there are actually two takeaways from Comey’s unprecedented, unilateral decision to share his take on the Hillary Clinton email case four months before the election – and then announce a new review with only 11 days to go.
One takeaway is what a catastrophic error it is to think you know better than everyone else. Comey’s self-appointment to the role of Only Trusted Man in Washington backfired spectacularly and caused enormous damage to the FBI’s reputation – and of course Hillary Clinton’s campaign.
But the other takeaway is that there is in fact a need for a “public interest exemption” of sorts, when law enforcement is keeping secret important information that the public deserves to know.
Sen. Elizabeth Warren, for instance, wrote a letter to Comey after his initial announcement noting his view that “the American people deserve those details in a case of intense public interest” and asking him to extend this new standard to the criminal investigation of the 2008 financial crisis.
I would argue that a public interest exemption could be especially appropriate before a critical election.
In Mueller’s case, it wouldn’t even be a matter of releasing potentially inappropriate investigative material, it would just require him not to delay the exercise of his duties.
And most people don’t seem to recognize that Mueller’s big reveal is likely to be epic, because he’s not simply pursuing a criminal matter, he’s also running a counterintelligence investigation. (Read my article about that.)
Counterintelligence investigations are vastly more expansive –as are the reports on their findings. In a criminal investigation, the only goal is indictments. In a counterintelligence investigation, the goal is to tell the whole story of what happened, to prevent it from happening again.
Mueller’s decision reminds me of a spectacularly bad one by the editors of the New York Times, before the 2004 presidential election. They suppressed the story by James Risen and Eric Lichtblau exposing George W. Bush’s warrantless wiretapping program until well after the election. Imagine if they hadn’t.
And Mueller’s move could also prove particularly problematic given that Trump has his own midterm calculus. He’s telegraphed quite clearly that he is prepared to get rid of Attorney General Jeff Sessions after the elections. And that alone could easily hamstring, derail, or end Mueller’s investigation.
Sessions recused himself from overseeing the Mueller investigation because he had an obvious conflict. But his replacement, once confirmed by the Senate, presumably would not have any such conflict — and would therefore take control of the Mueller investigation back from Deputy Attorney General Rod Rosenstein.
In Trump’s case, not pulling the trigger is the best of both worlds. He avoids a pre-midterm mobilization of a progressive base that is literally ready to take to the streets on a moment’s notice, should he overtly interfere with the Mueller investigation.
At the same time, he and Republican enablers like Sen. Lindsay Graham have done enough advance work that Trump’s firing of Sessions – at the very least – is considered a foregone conclusion by the political media.
The result is that when Trump does fire Sessions, it will be widely covered as an “I told you so” story more than a “this is outrageous” story – even if it puts Mueller’s investigation in great jeopardy.
Mueller’s decision to keep silent until after the election has elicited almost no criticism in the mainstream media, presumably because “serious people” consider it the “responsible” thing to do.
So thank goodness we have the Onion to put the move in its proper perspective, asking “regular Americans” what they think of it: