Monday, February 26, 2018

BTRTN: Four-Dimensional Chess: What Does Mueller Show, and When Does He Show It?

As Robert Mueller’s investigation surges forward on all fronts, a new question emerges: when should Mueller lay down all his cards? Steve is the rare progressive who is actually nervous that Mueller might be too moving quickly.

Yes, we can despair of a nation that protects gun manufacturers more aggressively than the children brutally slaughtered by their weaponry, a country that betrays and abandons its dreamers, and a society that appears more interested in the tell-all tales of paid-off porn stars than in the clear and present danger our President presents to our democracy and to the rule of law.

But for all the patriots who crave a daily cut of surging optimism directly into their antecubital vein, look no further than the investigation Robert Mueller is leading.

It is proceeding with a rapidly quickening pace without ever giving the appearance of being rushed. It is monumental in its scope, and it is scoring results in a spree of grand jury indictments and plea bargains. In a town with more and bigger leaks than the Titanic, critical information has no more chance of escaping Mueller’s lock-down than matter escaping a black hole. A man with high integrity, relentless focus, fearless direction, professional brilliance, and managerial acumen is in the exact right place at the right time. Maybe, just maybe, our democracy is actually working. Maybe our rule of law will actually save our country.

We’ll go this far: if Robert Mueller announces that everybody on earth named Trump is clean, we’ll believe him. We’ll drop everything and move on.

But that ain’t gonna happen.

Mueller appears to have his plea-bargainers singing like regional semi-finalists on The Voice. He’s following more money than Standard and Poor’s. He’s got more email than Gmail and the guy wearing Mueller’s biggest bull’s eye has already confessed at least one crime to Lester Holt on national television. Robert Mueller is not the kind of guy who allows an investigation to go this long and this deep if he isn’t convinced that there’s some justice – and some hard time -- that needs to be served. Perhaps most significant of all: many legal analysts believe that the filings in recent weeks reveal an intent to turn fully turn the screws on Paul Manafort. The significance? Manafort may be the only person (other than Trump family members) who knows enough to fry Trump on collusion and who has not yet copped a plea. If Mueller can line up both Flynn and Manafort to testify on a collusion charge, he would possess the potentially lethal prosecution weapon of corroborating witnesses. Mueller is big game hunting for the biggest game in town.

So enamored of Mueller is the team at MSNBC that they run a promo contrasting Mueller’s game of “three-dimensional chess” with a White House that is playing “whack-a-mole.” This, however, may not be enough. We all need to hope that Mueller is actually capable of playing four-dimensional chess.

Three D, as we all know, is defined by width, height, and depth. The fourth dimension is time. As we consider all the elements in the investigation, the matter of how he manages the clock may be as vital to the outcome as anything.

Our first observation is simple. If Robert Mueller comes to the conclusion that crimes have been committed against the United States of America, he will not be content to have spent these years of his life investigating and proving a case, only to Fed Ex it over to the Department of Justice, which – if under Donald Trump’s thumb – could elect to sit on the report and never even bother to send it to Congress for review. Robert Mueller is a prosecutor. If he feels crimes have taken place, he will want to prosecute the offenders and see justice fully served. He will want to win his case.

The reason that the timing of events – specifically, the delivery of the final report – is so crucial is that the impeachment process is a far more political than legal process. A criminal court may have very specific definitions of misdemeanors and felonies, but the vote on articles of impeachment and a subsequent trial rests purely and wholly on whether the legislators in Congress believe that the President’s actions rise to the utterly vague constitutional definition of an impeachable offense: “high crimes and misdemeanors.” While precedent and matters of law will certainly be weighed, the fact is that the technical definition of a “high crime or misdemeanor” is whatever individual federal legislators happen to believe it is.

In our pathetically partisan nation, the issue of Donald Trump’s guilt or innocence may well turn on which party holds each chamber of Congress and by what margin.  If Mueller’s report is delivered to a Republican House of Representatives, then a Republican-led House Judiciary Committee would have to determine whether there is even reason to draft articles of impeachment. In the unlikely event that were to happen, the articles would have to be approved by a majority of a Republican House of Representatives. Again, highly unlikely.

There are those who believe that the best possible timing for Robert Mueller to deliver his comprehensive chronicle of Trump misdeeds is right before the 2018 mid-terms, as this would increase the likelihood that the anticipated “Blue Wave” would be solidified and amplified by the chapter and verse detailing of allegations. The reasoning is that this would best ensure that a Democratic House is seated in 2019, creating a far higher likelihood that articles of impeachment would be passed and force a trial.

However, this is a gambit that carries great risk. The minute Robert Mueller turns over his final report to the Department of Justice, he is no longer in control of the investigation.  As soon as he turns over his findings to the Department of Justice, he has handed the authority for all subsequent steps to the Republican-led Department of Justice, then the Republican-led House Judiciary Committee, and then the Republican-dominated House of Representatives. The entire impeachment process could be shut down cold at any of these three stages… before it ever gets to trial.

Indeed, if Republicans were smart, they would tell Trump to stop threatening to fire Mueller -- a step which would create a raging firestorm of protest -- and instead call for Rod Rosenstein to impose a deadline on Mueller’s investigation. If Republicans argued that Mueller’s investigation is “dragging on” and “damaging the White House with no evidence of wrongdoing,” they could demand that he file his report by July. It would appear to be a far more reasonable step than firing Mueller.  Most important, it would give Republicans plenty of time to assess the charges and dismiss Mueller's the findings while they still control the House.

Were such a scenario to unfold, you reason, wouldn’t the Democrats simply re-introduce articles of impeachment after the mid-terms? This raises a fascinating question… can a sitting President be subject to such double jeopardy? Ordinary citizens are protected from being prosecuted twice for the same crime. If the Republicans were to bring articles of impeachment to the House floor and vote them down, would that effectively preclude the Democrats from re-litigating the matter in 2019? Sure, Democrats could rewrite the articles of impeachment and submit a new brief for evaluation to the House, but a weary public could decide that such a Democratic maneuver was purely political and demand that Congress move on.

While preparing this post, I discussed these issues with my college classmate Peter, a veteran attorney who closely follows our unfolding national narrative. Peter cautioned me that the world of prosecuting crime is one that must proceed on its own pace, governed only by the prosecuting attorney's sense that all necessary evidence has been collected, as many documents as possible have been reviewed, all interviews completed, all theories examined, all witnesses heard. He notes that there are inevitably many moving parts and unpredictable turns. In a case with the astonishing complexity of this one, it may be simply impossible to try to factor in the realpolitik of timing into the process. But I take some comfort in the implication that that this means Mueller's work is not likely to be resolved soon.

Yes, my college friend is correct: Robert Mueller must manage his case, his witnesses, his disclosure of critical information, and his process of reaching conclusions at the methodical pace required to lead to the right answer for our nation.

But our hope is that he is weighing the sad reality that if he delivers an undeniable case to a Republican House of Representatives, they will quickly find a way to deny it. Due to the ridiculous polarization of our politics, there is the very real possibility that Republicans in the DoJ or House could slam the door on his work.

We hope we see Mueller’s grand finale only after a new Congress is sworn in. As eager as we all are to see that justice is done, it may have a far greater chance of being done when the calendar shifts to 2019.

There may be Republicans who read this piece and are angered at what they perceive as cynical advocacy... an attempt to stall and manipulate the calendar in a way that twists what should be a non-partisan process for political ends.

Please do tell them to send Mitch McConnell and Neil Gorsuch my very best. 

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