Law & the Courts

Robert Mueller’s Plan

Robert Mueller on Capitol Hill in 2013. (Larry Downing/Reuters)
Special Counsel Mueller is building a report, not a case.

Right after Special Counsel Robert Mueller racked up yet another guilty plea to a false-statements charge on Thursday, a friend asked me, “Doesn’t this destroy Michael Cohen’s credibility as a witness?”

Easier to destroy Satan’s conscience, I thought. Cohen would have to have some credibility before it could be destroyed, and how much could reside in a self-described “fixer” who openly compared himself to Tom Hagen, the lawyer-gangster in The Godfather? (I’ll stipulate that he has a law degree, but Cohen has always struck me as the Fredo of Trump World.)

Nevertheless, the flaw in my friend’s question was not the assumption that Cohen had some smidgeon of value as a witness until it was extirpated by his plea of guilty to lying to Congress (after he had already, in August, pled guilty lying to a financial institution, among other fraudulence). The real flaw was the assumption that Special Counsel Mueller is lining up witnesses and building a criminal case, as prosecutors do.

He is not.

No prosecutor builds a case the way Mueller is going about it. What prosecutor says, “Here’s our witness line-up: Michael Flynn, George Papadopoulos, Alex van der Zwaan, Rick Gates, Paul Manafort, Michael Cohen. And what is it that they have in common, ladies and gentlemen of the jury? Bingo! They’re all convicted liars.”?

For a prosecutor, like any trial lawyer, what the jury thinks is at least as important as what the law says. If the most memorable thing the jury takes into the deliberation room is that no one should believe a word your witnesses say, you are not going to convict the lowliest grifter, much less the president of the United States of America.

As a prosecutor, you build a case by having your cooperating accomplice witnesses plead guilty to the big scheme you are trying to pin on the main culprit. After all, what makes these witnesses accomplices, literally, is that they were participants in the main culprit’s crime. That’s the scheme you’re trying to prove. So, on guilty-plea day, the cooperator comes into court and admits guilt to the same conspiracy on which you are trying to nail the lead defendant.

That gets you 90 percent of the way home. “Yes, I am guilty of the conspiracy charged in Count One. I was a member of the drug cartel. A was the boss. B and C were the distributors. D organized the couriers and kept an arsenal to protect the drugs and the money, and to make sure we got paid. My job was to keep the books and supervise the money-laundering operation.”

This kind of guilty plea signals to the world, including to all the other suspects, that the accomplice is ready to testify that the criminal scheme existed — it is not a figment of the prosecutor’s fevered imagination. The accomplice is ready to describe what he did and what everybody else did. Virtually every appellate opinion reviewing conspiracy convictions notes the principle that once a conspiracy is shown to exist, only slight evidence is needed to tie a conspirator to it.

In short, you build a case by first establishing the foundational criminal offense. Juries do not convict people because they like or trust the prosecution’s witnesses. They convict because they are persuaded that justice demands redress for a real crime.

Note that word: crime. There are many wrongs that are not crimes, activities that are immoral, mendacious, unseemly. If we are talking about cosmic justice, all these wrongs should be made right. But prosecutors do not operate in a cosmic-justice system. They are in the criminal-justice system. The only wrongs they are authorized to address — the only wrongs it is appropriate for them to address — are crimes.

This is why, from the beginning of the Trump-Russia investigation, and certainly since Mueller’s appointment on May 17, 2017, we have stressed that the probe is a counterintelligence investigation, not a criminal investigation. The idea was not to dizzy you with Justice Department esoterica. The point is that we don’t want prosecutors involved until it has been established that a crime was probably committed, warranting use of their awesome, intimidating investigative powers. Our main interest is in the crime we authorize prosecutors to investigate; we are not looking to have prosecutors manufacture crimes through the process of investigating — even if we agree that people should not be permitted to lie to investigators with impunity.

With respect to the president and “collusion,” Mueller does not have a crime he is investigating. He is investigating in hopes of finding a crime, which is a day-and-night different thing.

The lack of a crime means the “accomplices” are not really accomplices. To take a couple of stark examples, collusion pours off every page of the narrative statements Mueller submitted to the courts in the cases of Papadopoulos and Cohen. They consult with Russian operatives, plan meetings for themselves and Trump with Russian officials, and — in Papadopoulos’s case — discuss the possibility of obtaining campaign dirt against Hillary Clinton from Russians. Yet, though these activities are the laser focus of his investigation, Mueller did not charge them as crimes because they are not crimes. Papadopoulos, Cohen, and the rest got jammed up, not for what they did, but for lying about what they did.

That brings us to the “where there’s smoke, there must be fire” talking-point Mueller fans have been trying out: If all these people are lying to cover something up, that something must involve some egregious criminality. That’s ridiculous. We know from our own daily lives that crimes account for only a very small percentage of the things people lie about. Indeed, throughout the 1990s, Democrats insisted that prosecutors should leave Bill Clinton alone because everybody lies about sex. People lie about things that they are embarrassed or ashamed about.

Politics is a seamy business. Pols want to think of themselves as public servants, but they spend lots of time with their hands out, either pleading for money or collecting information that might compromise an opponent. Successful politics requires horse-trading and compromise, so pols are forever explaining how they could actually be against something they voted for. A lot of this is embarrassing stuff. Consequently, when people in and around politics get caught practicing politics, they often lie about what they’ve done.

Politics is not a crime, of course. Consequently, if you criminalize politics — if you turn a prosecutor loose to investigate political campaign activities — you are apt to find unsavory conduct that is not criminal but that some people will lie about.

Mueller is turning such lies into guilty pleas, for three reasons.

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.

Here, moreover, there is a bonus for the special prosecutor. He knows that the legitimacy of his investigation is under attack, allegedly driven by politics rather than evidence of crime. But the convictions he has amassed, even if they are only for false statements or are otherwise unrelated to the Trump-Russia rationale for the investigation, prove that many people Trump brought into his campaign were corruptible and of low character. Mueller, the career Justice Department and FBI man, will deftly use this fact to argue that suspicions about these people, and hence the investigation, were fully justified even if — thankfully — there was no prosecutable Trump–Russia conspiracy.

Trump’s Republican and conservative critics will cheer, figuring the president and his rogues’ gallery had it coming. Democrats will cheer, knowing this would never happen to Democrats.

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