3 Predictions for What Mueller Will Do Next


Robert Mueller’s investigation is now 1 year old. Watching the slow reveal of witnesses, search warrants and subpoenas, the president’s supporters and his opponents may despair that it will never come to an end.

But buckle your seat belts and grab the oxygen masks. It’s about to get interesting. From my vantage point as a former federal prosecutor, Senate Judiciary aide and White House lawyer, the special counsel’s path forward seems very clear—almost inevitable. With the caveat that the future is of course uncertain, here are three predictions for the dramatic weeks ahead:

Mueller will likely wrap up his investigation this summer. It is an ironclad principle that prosecutors should not take action that could influence an election. As George W. Bush’s attorney general, Michael Mukasey, told his prosecutors by written guidance in 2008, “Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” The Hatch Act, he continued, “prohibits us from using our authority for the purpose of affecting election results.”

Mukasey’s declaration was such a clear and obvious declaration of principle that four years later, President Barack Obama’s attorney general, Eric Holder, reissued it in virtually identical language. That guidance still stands.

Indeed, the bipartisan reaction among legal scholars and former officials to FBI Director James Comey’s public declaration in October 2016 that he was reopening the Hillary Clinton email investigation formed the bulk of Deputy Attorney General Rod Rosenstein’s justification for the Comey firing one year ago.

So Mueller must act fast to finish his investigation or he must wait until after the November 2018 elections. And if he waits, he knows every action he takes in those months leading up to the election will be scrutinized for political effect. Surely, he does not want to have to explain in his memoirs how his actions unintentionally affected the election.

How fast must he move? When does the window for action close? Kenneth Starr did not issue his report recommending the impeachment of Bill Clinton until September 11, 1998, also a midterm election year. The timing of that late move was widely criticized, and Starr argued that Clinton’s delaying tactics were to blame. In political terms, it had the unexpected consequence of boosting Clinton’s popularity and indeed, the Democrats very unusually won congressional seats in those midterm elections.

But Starr is not likely to be Mueller’s model. Here, Comey provides a positive example: In 2016, his team finished the bulk of its work on the Hillary Clinton email investigation by June, his agents interviewed the former secretary of state on July 2 and he publicly closed the investigation on July 5.

Another high-profile precedent is the indictment of former Senator Ted Stevens on corruption charges in a year when he was on the ballot. The date: July 29.

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