Earlier this week the Atlantic published a piece arguing that there was simply no way Special Counsel Robert Mueller would indict President Trump. Author Paul Rosenzweig was emphatic about it, writing, “Mueller will not indict Trump for obstruction of justice or for any other crime. Period. Full stop. End of story.” He added, “Speculations to the contrary are just fantasy.” Having presented that perspective I now feel obligated to present, well, speculations to the contrary. In a piece at Politico today, two unnamed attorneys argue Mueller might indeed indict Trump even if he thinks the case would ultimately get thrown out by the courts:
Neither attorney claimed to have specific knowledge of Mueller’s plans. Both based their opinions on their understanding of the law; one also cited his interactions with the special counsel’s team, whose interviews have recently examined whether Trump tried to derail the probe into his campaign’s Russia ties.
“If I were a betting man, I’d bet against the president,” said one of the lawyers.
The second attorney, who represents a senior Trump official, speculated that Mueller could try to bring an indictment against Trump even if he expects the move to draw fierce procedural challenges from the president’s lawyers – if only to demonstrate the gravity of his findings.
“It’s entirely possible that Mueller may go that route on the theory that, as an open question, it should be for the courts to decide,” the attorney said. “Even if the indictment is dismissed, it puts maximum pressure on Congress to treat this with the independence and intellectual honesty that it will never, ever get.”
Rep. Ken Buck, who is a former federal prosecutor, tells Politico an indictment of Trump, “would create a constitutional crisis.” Trump is within his rights as president to fire the FBI Director. So an indictment for obstruction based on the firing would amount to Mueller’s assessment that Trump fired Director Comey for the wrong reasons, something Rep. Buck says would be “unique in the history of the country.” Of course, we’ve seen courts interpreting Trump’s executive orders on immigration in a similar way, i.e. not arguing the president lacks authority but that his prior statements prove his motives were unconstitutional.
This more important question may be: Is this something Mueller wants as part of his legacy? One of the arguments Paul Rosenzweig made in his piece for the Atlantic (against the likelihood of Mueller indicting Trump) is that it would be out of character. “If we know anything about Mueller, we think we know that he follows the rules—all of them,” Rosenzweig wrote. Since an indictment of Trump probably wouldn’t stand, it would ultimately be seen as a piece of political theater, i.e. an exclamation point on Mueller’s investigation. That doesn’t sound like Mueller’s style, though it would undoubtedly be applauded by many on the left.
This is pure speculation on my part, but I wonder if Mueller is watching that battle over the release of the Nunes memo and weighing a decision about how much of a rule follower he wants to be at this moment. It would really be something if an effort to discredit Mueller’s probe wound up pushing his buttons so much that he decided to do something a little out of character, just this once.