The phony, politically generated hubbub over release of the Nunes memo provided the latest chapter in President Donald Trump’s furious race to discredit Special Counsel Robert Mueller and the FBI before Mueller takes further action.
Polling shows the disturbing success of Trump’s attacks on law enforcement. Trump’s goal is to so discredit the people and institutions conducting the investigation that the fruits of their investigation – whether future indictments or a report to Congress – will be viewed as the suspect products of a biased investigation. A central question now is whether Mueller will act quickly enough for his investigation to prove effective.
While the memo brouhaha played out, important indications emerged that the Mueller investigation is moving forward with Trump in its sights. News stories involving Michael Flynn, Mark Corallo, and Rick Gates hinted that the investigation may soon produce significant new results.
Mueller requested and received an indefinite delay in the sentencing of Michael Flynn. In December, Flynn pled guilty to lying to the FBI regarding his conversations with Russian Ambassador Kislyak during the Trump transition and agreed to cooperate with Mueller’s investigation. The delay of Flynn’s sentencing was widely interpreted to mean that Mueller is still extracting information from Flynn. That may be true. But, the postponement also may mean that Mueller does not want Flynn sentenced until he has testified against others. Prosecutors generally do not want a final sentence imposed until all terms of the cooperation agreement have been fulfilled, which may include multiple rounds of testimony. That makes it possible that Mueller is pushing back Flynn’s sentencing because he expects to need his testimony. And that suggests indictments may be coming.
Anonymous sources revealed that Mark Corallo, former spokesperson for Trump’s legal team, has consented to an interview with Mueller. He is expected to talk about a conference call he participated in with Trump and Hope Hicks. The call occurred the day after Trump dictated the public statement on Air Force One regarding the Trump Tower meeting orchestrated by Donald Trump Jr. and involving Paul Manafort, Jared Kushner, and a cast of Russians. Emails subsequently emerged showing that Trump Jr. had arranged the meeting in response to an invitation to obtain dirt on Hillary Clinton as part of the Russian government’s effort to help the Trump campaign (no collusion!). The public statement drafted on Air Force One was a lie, asserting that the meeting participants discussed only Russian adoption. In the subsequent phone call, Corallo will say, Hope Hicks said that Trump Jr.’s emails would “never get out.” Corallo resigned shortly thereafter, and the expectation is that he will say that he thought Hicks was contemplating obstruction of justice through concealment or destruction of the emails. The report of Corallo’s statement suggests that Mueller is deeply into the obstruction of justice investigation, which may involve a conspiracy among a number of actors, including Trump and his son.
Three of Rick Gates’s four lawyers withdrew unexpectedly from their representation of him, stating only that their reasons would be filed under seal with the district court. Gates was indicted along with Paul Manafort on conspiracy, money laundering, and false statements charges. A Gates attorney said in December that he expected superseding charges against Gates, but they have not materialized. While it is common for lawyers to withdraw from representation, it is less common for the explanation to be kept under seal. While we don’t know the reason, one possible explanation is that Gates is negotiating a cooperation agreement that would involve his testimony against Manafort. The attorneys who withdrew may have cooperated with Manafort’s lawyers on elements of a common defense, which now creates a conflict of interest that requires their withdrawal. Gates’s cooperation would be significant. He was close to Manafort while Manafort was campaign manager, and stayed involved after Manafort left. He would have been privy to much of the contact between Manafort and Trump.
The furiousness with which Trump is fighting the investigation has renewed suggestions that Mueller will indict Trump. Once again, that will not happen, because both Mueller and Deputy Attorney General Rod Rosenstein (who has final say) will feel bound by Justice Department opinions stating that a sitting president cannot be indicted. Putting aside the Constitutional issue, that’s a good thing, on balance. Part of Trump’s emerging legal strategy – which is consistent with litigious tactics in his business career — is to embroil Mueller in protracted litigation. Trump will argue that the demands of his presidential duties (100 days on the golf course is taxing!) make participating in his criminal defense impossible. That separate and difficult legal question likely would generate a trip to the Supreme Court before the prosecution could proceed. The existence of that litigation would relieve Congress of any sense of obligation to act, and would distract the country from the underlying issues of collusion and obstruction of justice. Protracted litigation is Trump’s friend.
That calculation fuels the emerging reluctance of Trump to agree to a voluntary interview with Mueller. Trump’s lawyers wisely recognize that he cannot be put in a situation in which lying is a crime. He will lie. Mueller probably will respond with a grand jury subpoena, which Trump can challenge in court, launching litigation that will postpone his day of reckoning and divert Congress and the country from the substance of his lawbreaking.
Trump’s assaults on law enforcement and his maneuvers to avoid an interview project growing awareness that Mueller is closing in. The question now is whether Mueller will act with sufficient dispatch that Trump’s efforts to undermine law enforcement and divert attention will fail.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.