The smoke is clearing from an explosive Mueller investigation weekend of charges, chattering, and tweets. Before the next aftershock, it might be helpful to make three points about where things stand. In ascending order of importance, they are:
1.) There is a great deal of misinformation in the commentariat about how prosecutors build cases.
2.) For all practical purposes, the collusion probe is over. While the “counterintelligence” cover will continue to be exploited so that no jurisdictional limits are placed on Special Counsel Robert Mueller, this is now an obstruction investigation.
3.) That means it is, as it has always been, an impeachment investigation.
Building a Case
Many analysts are under the misimpression that it is typical for federal prosecutors to accept guilty pleas on minor charges in exchange for cooperation that helps build a case on major charges. From this flawed premise, they reason that Mueller is methodically constructing a major case on Trump by accepting minor guilty pleas from Michael Flynn and George Papadopoulos for making false statements, and by indicting Paul Manafort and an associate on charges that have nothing to do with Trump or the 2016 election.
That is simply not how it works, strategically or legally.
As I’ve tried to explain a few times now (see here and here), if a prosecutor has an accomplice cooperator who gives the government incriminating information about the major scheme under investigation, he pressures the accomplice to plead guilty to the major scheme, not to an ancillary process crime — and particularly not to false-statements charges.
Strategically, and for public-relations purposes (which are not inconsequential in a high-profile corruption investigation, just ask Ken Starr), a guilty plea to the major scheme under investigation proves that the major scheme really happened — here, some kind of criminal collusion (i.e., conspiracy) in Russia’s espionage operation against the 2016 election. The guilty-plea allocution, in which the accomplice explains to the court what he and others did to carry out the scheme, puts enormous pressure on other accomplices to come forward and cooperate. In a political corruption case, it can drive public officials out of office.
Justice Department policy calls for prosecutors to indict a defendant on the most serious readily provable charge, not to plead out a case on minor charges to obtain cooperation. The federal sentencing guidelines also encourage this. They allow a judge to sentence the defendant below the often harsh guidelines calculation. This can mean a cooperator gets as little as zero jail time or time-served, no matter how serious the charges. This sentencing leniency happens only if the defendant pleads guilty and provides substantial assistance to the government’s investigation. That is what enables the prosecutor to entice an accomplice to cooperate; the prosecutor does not need to entice cooperation by pleading the case out for a song.
The practice of pressuring a guilty plea to the major charges makes the accomplice a formidable witness at trial. The jury will know that he is facing a potential sentence of perhaps decades in prison unless he discloses everything he knows and tells the truth in his testimony. That is what triggers the prosecutor’s obligation to file the motion that allows the court to sentence under the guidelines-recommended sentence.
Trading a plea on minor charges for cooperation is a foolish gambit that badly damages the prosecutor’s case. It suggests that the cooperator must not have disclosed details about the major scheme. Otherwise the prosecutor would have charged him with it. It implies that the prosecutor is so desperate to make a case on a major target that he gave bad actors a pass on serious charges — something experienced prosecutors know that juries hate.
It is even worse to plead accomplices out on false-statements counts. This establishes that the main thing the jury should know about the accomplice is that he is not to be trusted. That is not how you make someone a strong witness. And unlike the accomplice who pleads guilty to the major scheme, an accomplice who pleads guilty to false statements is looking at a maximum sentence of just five years and a more likely sentence of no time even before he has cooperated — not much of an incentive to disclose everything and tell the truth. A good prosecutor does not front-load the benefits of cooperation; he makes the accomplice earn sentencing leniency by full disclosure and testimony.
Bottom line: If the FBI had a collusion case of some kind, after well over a year of intensive investigation, Flynn and Papadopoulos would have been pressured to plead guilty to very serious charges — and those serious offenses would be reflected in the charges lodged against Manafort. Obviously, the pleas and the indictment have nothing to do with collusion because Mueller has no collusion case.
It’s Now an Obstruction Investigation
Since there is no collusion case, we can safely assume Mueller is primarily scrutinizing President Trump with an eye toward making a case of obstructing an FBI investigation. This also makes sense in light of the pleas that have been taken.
Obstruction itself is a process crime — i.e., it relates to interference in the investigation of an underlying transaction that may or may not be criminal. In the first point, above, we noted that prosecutors generally do not let a cooperator settle a case by pleading guilty to a mere process crime. But if the main case the prosecutor is trying to build is itself a process crime, such as obstruction, then it is not all that damaging that the witnesses have pled guilty only to process crimes. The theme of such a prosecution is that the investigative process must be protected, not that some terrible underlying crime (like an espionage conspiracy) has been committed. Witnesses such as Flynn and Papadopoulos would therefore not be made to look like they had gotten a pass on serious offenses; they would look like they had owned up to corrupting the process and are now helping the prosecutor against the principal corruption target.
Mueller’s theory appears to be straightforward: The FBI was investigating Russian meddling in the election and the possibility of Trump-campaign complicity in it. Even though Flynn’s interactions with Russian ambassador Sergei Kislyak did not amount to Trump-campaign collusion in Russia’s perfidy, they did show that the Trump transition was dabbling in foreign relations with the Putin regime (among other foreign governments) and was attempting to undermine the policy of the incumbent Obama administration — at least on the U.N. resolution condemning Israel. (On the sanctions Obama had imposed on Russia, Flynn made no commitments and encouraged his Russian counterpart not to escalate matters in retaliation, which, if anything, was supportive of Obama’s policy.)
Here, we should consider the specter of the Logan Act. This provision, more than two centuries’ old, is almost never invoked (and never has been successfully). It’s constitutionally suspect and essentially ignored. It was not a viable basis for prosecution. But the Trump transition may not have appreciated this, particularly given reported speculation at the time of Flynn’s communications with Kislyak that the Obama Justice Department was considering Logan Act charges against Flynn.
Even putting the Logan Act aside, we have only one president at a time. It is unseemly for an incoming administration to undermine the sitting president. If revealed, such behavior would be politically damaging enough. Here, that damage of Trump-transition interference with President Obama’s foreign relations would have been magnified by Russia’ involvement, given that Democrats were accusing Trump of colluding with Putin to throw the election. This made any conversation about the sanctions between Flynn and Kislyak look terrible, no matter how innocent they were and no matter how normal for a transition period.
Consequently, Mueller would theorize, Flynn had a motive, for legal and political reasons, to lie about his contacts with the Russian ambassador. And because Flynn was taking direction from Trump-transition officials in connection with those contacts, President Trump had a motive to make the FBI’s Flynn investigation disappear. This motive, the theory goes, explains why Trump pressured Comey to drop the Flynn investigation, and why he ultimately fired Comey — a move that, the very next day, he told Russian diplomats was related to the pressure Trump had been facing “because of Russia.”
That’s where we’re headed.
So, It’s an Impeachment Case
Assuming I am correct about Mueller’s theory, its fatal flaw as a vehicle for prosecution is the same as it has always been: As president, Trump had incontestable power to exercise prosecutorial discretion and to fire the FBI director.
Because of more ill-advised tweeting this weekend, there is now a suggestion that when Trump fired Flynn in February — and when he allegedly asked Comey to let the Flynn investigation go — he knew that Flynn had lied to the FBI. There are factual disputes here: The tweet was apparently written by a Trump lawyer, not Trump himself; Trump apparently denies knowing Flynn had lied to the FBI (just that he had lied to Vice President Pence); and Trump continues to deny former FBI director James Comey’s sworn testimony that Trump pressured him to drop the Flynn investigation.
For argument’s sake, let’s assume the worst: Trump knew Flynn had lied to the FBI (i.e., that Flynn had committed at least one felony), and he leaned on Comey to close the FBI’s probe. Even with those assumptions, there is still no obstruction case.
The FBI and the Justice Department are not a separate branch of government; they are subordinates of the president delegated to exercise his power, not their own. Even on Comey’s account, Trump did not order him to shut down the Flynn investigation, even though he could have. Trump could have ordered an end of the Russia counterintelligence investigation, but he did not. He could have pardoned Flynn, which would effectively have ended the FBI’s criminal investigation — beyond any possibility of review. We can stipulate that these would have been sleazy things to do, potentially damaging to national security, and still grasp that the president had the undeniable power to do them.
Similarly, the president had undeniable power to fire the FBI director. You can argue that his reason was corrupt, but the truth is that he didn’t need a reason at all — he could have done it because it was Tuesday and he felt like firing someone; he could have done it because he figured that the Justice Department’s criticism of Comey’s handling of the Clinton emails investigation gave him the political cover he needed to dispense with a subordinate he found nettlesome. The point is that even if the president hoped that cashiering Comey would derail an investigation he was addled by, it was wholly in Trump’s discretion to fire the director. Moreover, firing the director did not derail the Russia investigation; it has proceeded apace under the director whom Trump appointed to replace Comey.
The president may not be prosecuted in a criminal judicial proceeding for exercising his discretion, however objectionably, in executive matters over which the courts have no power of review. If Mueller tried to indict him, Trump would have unfettered discretion to fire Mueller and to direct the Justice Department to drop the case.
You may not like that, but that’s the way it is. It is not, however, the end of the matter.
Any powers can be abused. When executive powers are abused, Congress retains the constitutional authority to impeach and remove the president. Obstruction of an FBI investigation may not be realistically prosecutable in court, but there is congressional precedent — in the Nixon and Clinton situations — for obstruction to be a “high crime and misdemeanor” triggering impeachment. Undoubtedly, abuse of the pardon power would also be an impeachable offense, even though it is not reviewable by the courts.
I continue to believe that this is the real danger for President Trump: A report by the special counsel, either through the grand jury or some other vehicle, concluding (a) that the president had obstructed the FBI’s investigation of Flynn and of Trump-campaign collusion with Russia, and (b) recommending that the matter be referred to Congress for consideration of next steps, potentially including impeachment and removal.