Eenie meenie, chili-beanie, the spirits are about to speak! The Washington Post does some reading of the Robert Mueller tea leaves today after a week in which the special counsel’s filings seem ever closer to threatening Donald Trump’s presidency. But is it really just getting closer to an anti-climax? Michael Cohen’s sentencing signals a potential end, even if it’s not the one Trump’s foes think:
In the cases of Cohen, former campaign adviser George Papadopoulos, former campaign chairman Paul Manafort, and former national security adviser Michael Flynn, Mueller has proceeded to the sentencing of each without first making him testify at trial against others.
That’s at odds with the common practice of prosecutors — which is to hold the stick of a tougher prison sentence over defendants until they have completed all of their cooperation, particularly any public testimony.
While the recent legal action has led to speculation that prosecutors are narrowing in on the president in anticipation of more criminal charges, Mueller’s sentencing timeline suggests a different outcome to some legal experts — that the accounts of those cooperating witnesses will appear in a written report, not in court.
That would come as no surprise to Andrew McCarthy, who’s been making this argument for weeks. Nor should it be a surprise to the rest of us, since the Department of Justice’s legal policy is that they cannot indict a sitting president. As special counsel, Mueller is bound by that finding, and Mueller is not the kind of person to go rogue, at least not in that sense. The special counsel probe wasn’t going to end in a presidential perp walk, no matter what the fantasies of the fever swamp might be.
Cooperators “usually go last,” former Whitewater independent counsel Robert Ray tells the Post, because they’ve usually been asked to testify in a trial. With Flynn, Papadopoulos, and now Cohen all cooperating and sentenced (Flynn’s sentencing hearing will come next week), Ray concludes that “we are nearing the end.”
What about Roger Stone and Jerome Corsi, though? The situations of those presumed persons of interest still have not been settled, or at least that’s what it seems. That might mean that we’re not quite nearing the end, but it’s a bit curious to see Mueller settle up with all of his cooperators — and to settle a score with Paul Manafort for not cooperating as agreed — before that point. Cohen wouldn’t likely have had much to do with Stone or Corsi, but Flynn and Papadopoulos theoretically might have, or at least have testimony that would be useful in a trial.
If Ray’s right, then it might be that Mueller will finish without trying anyone on the core issue of supposed Russia collusion. That would be an even larger anti-climax, with nothing but a report along with some process-crimes plea deals in hand. That is, however, the consistent track record of special counsels. And it would fit with McCarthy’s read of the situation before the Cohen plea deal was announced:
First, he is not going to indict the president, which would precipitate a trial at some point. The convicted liars are not going to be jury-trial witnesses, so Mueller is not concerned about their lack of credibility. The report will detail disturbing — and thus politically damaging — connections between Trump associates and Kremlin cronies. But there will be no collusion crime, and thus no charges and no need for witnesses.
Second, with the media as his biggest cheerleader (other than Jeff Flake), the false-statements pleas create the illusion of a collusion crime, and thus appear to vindicate Mueller’s sprawling investigation. As I’ve previously explained, the game works this way: The media reports that Mueller is investigating Trump–Russia collusion and that dozens of people have been charged or convicted; but the media omits that no one has been charged, much less convicted, of any crime involving collusion between Trump and Russia. The great mass of people who do not follow the news closely come away thinking a Trump–Russia collusion crime is an established fact; by now, Mueller must be tightening the noose around Trump because he’s already rolled up a bunch of the apparent accomplices.
Third, defendants convicted of making false statements are very useful because Mueller is writing a report, not preparing for a jury trial. Convicted liars never get cross-examined in a report. Nor do they give the bumpy, inconsistent testimony you hear in a courtroom. Instead, their version of events is outlined by a skilled prosecutor, who writes well and knows how to make their stories sing in perfect harmony. They will sound far better in the report than they would on the witness stand. We’ve already gotten a taste of this in the offense narratives Mueller has incorporated in each guilty plea. Read the criminal information in Cohen’s case and ask yourself whether Mr. Fixer could have recited matters with such clarity.
That doesn’t mean that Trump’s out of the woods yet. Mueller might still have some surprises up his sleeve, and the report might contain a lot of damning information that could prompt Congress to act. But at least based on what we’ve gleaned from the filings, that may just come down to questionable accusations of campaign-finance violations, far short of what people expected.
There’s another reason to think that the end is nigh. Don’t forget that William Barr will likely get confirmed as Attorney General very early next year, which will put him in charge of the special-counsel probe. Mueller probably feels a lot more comfortable handing his report to Rod Rosenstein rather than Barr, and Rosenstein will need to decide what to do with it before Barr becomes his boss. The clock is ticking loudly on that option, and Mueller knows it.