“If it rings true, it is true,” Wolff famously sniffed last year when pressed about inaccuracies in his last book about Trump. He’s been accused of printing got-it-from-a-friend-who-got-it-from-a-friend rumors and was once kicked off “Morning Joe” for outlandishly suggesting in “Fire and Fury” that Trump and Nikki Haley had had an affair — which he later insisted he hadn’t meant to imply, although obviously he had.
This is a guy who once described himself as “barely a journalist.” So he is capable of telling the truth, at least about himself.
He may not know how to fact-check but he knows how to sell books. He recognized that the insinuation about Trump and Haley would help move units and it did, with “Fire and Fury” becoming a mega-success. Go figure that the first tease from his sequel, “Siege,” features sensational Resistance-bait, the claim that Team Mueller not only seriously considered indicting Trump but went as far as to prepare some sort of document about it. What, precisely, that document is and where it came from are unclear. Wolff says he got it from sources close to Mueller’s office but Mueller’s spokesman told the Guardian that “The documents that you’ve described do not exist.” It’s possible that it was fabricated and pawned off on a credulous reporter, Rathergate-style. After all, “If it rings true, it is true” was also essentially CBS’s position in that debacle, you may recall.
The Guardian, which has seen the document (no doubt courtesy of Wolff, eager to build buzz for the book), describes it as an “indictment” in its headline but refers to it elsewhere as an “outline” of possible charges against Trump, albeit under the ominous title, “United States of America against Donald J Trump, Defendant.” More:
According to a document seen by the Guardian, the first count, under Title 18, United States code, Section 1505, charged the president with corruptly – or by threats of force or threatening communication – influencing, obstructing or impeding a pending proceeding before a department or agency of the United States.
The second count, under section 1512, charged the president with tampering with a witness, victim or informant.
The third count, under section 1513, charged the president with retaliating against a witness, victim or informant…
The justice department’s Office of Legal Counsel had said a sitting president could not be indicted. According to Wolff, Mueller’s team drew up both the three-count indictment of Trump and a draft memorandum of law opposing an anticipated motion to dismiss.
Susan Hennessey edits the website Lawfare, which has been relentlessly critical of Trump throughout Russiagate, but she smells something fishy here:
It's plausible the Special Counsel's office has some independent written product on whether president can be indicted (Ken Starr did) and it's possible there are memos on strongest obstruction arguments. But that's lightyears away from "draft indictments" that are "shelved."
— Susan Hennessey (@Susan_Hennessey) May 28, 2019
Notably, Peter Carr weighs in with an outright denial "The documents that you’ve described do not exist.” That doesn't mean there's nothing to it at all (see eg Buzzfeed denial), but it does mean we can presume that something is materially wrong in the reporting.
— Susan Hennessey (@Susan_Hennessey) May 28, 2019
One possibility is that someone on Mueller’s team drafted a memo about which statutes might be cited if, hypothetically, the special counsel were to proceed with an indictment. The Guardian may have confused that with an actual draft indictment and then went running to Carr about it: Isn’t it true that you guys wrote up an indictment for Trump and then stuck it in a desk drawer? And Carr could have answered, honestly and correctly, “Nope, not true at all. There’s no indictment.” It’s hard for me to believe, though, that the threshold question of whether a sitting president can be indicted would have remained so unsettled in Mueller’s mind for so long that the office might have reached the stage of considering what an indictment might look like before ultimately concluding that they couldn’t charge him. One would think that that would have been addressed early in the process. Can we charge him? If the answer was “no,” which is what the DOJ’s official position is, then why would this memo exist?
Did Mueller change his mind at some point, believing at first that Trump could be charged and only later concluding that he couldn’t be?
Assuming the memo is real, which is a big assumption given Wolff’s record, maybe it was an outline not for an indictment but for the obstruction section of Mueller’s report. The office may have proceeded this way: “We can’t charge Trump — but a future prosecutor might once he’s out of office, whether because his term is over or because Congress has removed him. Let’s draft the obstruction part of the report with an eye to the particular statutes he might be charged under and present the evidence we have supporting violations of each.” So they looked at Section 1505, analyzed the elements needed to show probable cause, and set out the evidence meeting each element in the report. It’s not their own “draft indictment” they may have had in mind, in other words, but someone else’s down the road. They were simply making sure that their report was maximally useful to President Biden’s DOJ circa 2021.
Anyway, I doubt this’ll remain in the news cycle for too long. Wolff’s book also quotes Trump as saying “The Jews always flip” after Michael Cohen, David Pecker, and Allen Weisselberg began cooperating with prosecutors. News about legal procedure can’t compete with dubiously sourced allegations of presidential bigotry.