The Mueller Report?

Make no mistake- Jennifer Rubin is a conservative, albeit a never Unidicted Co-conspirator Bottomless Pinocchio one, an ally of momentary convenience only.

Still her commentary on the impending end of the Mueller Investigation into the Russian Treason Plot, unconfirmed by Mueller and his Office and potentially taking many forms if true, is at least less breathless than the Henny Penny cries of doom heard in some quarters so I highlight it as being instructive.

Mueller’s ‘winding down’ may be less than it appears
By Jennifer Rubin, Washington Post
February 21, 2019

The Post reports, “Justice Department officials are preparing for the end of special counsel Robert S. Mueller III’s nearly two-year investigation into Russian interference in the 2016 election and believe a confidential report could be issued in coming days, according to people familiar with the discussions.” That report will go to Attorney General William Barr, who refused to promise during his confirmation hearings that he would release the entire report but has little reason to bottle up a report that Congress could subpoena anyway.

The Post report continues, “An adviser to President Trump said there is palpable concern among the president’s inner circle that the report might contain information about Trump and his team that is politically damaging, but not criminal conduct.” That would be the best-case scenario.

Let’s start with what will not be in the Mueller report: The findings from the Southern District of New York, which is exploring possible violation of campaign finance laws and Trump’s financial dealings. That could go on for years, and has always been a more serious concern for Trump’s inner circle. The report will also not contain the finding from any Roger Stone trial and/or plea deal, since that is being handled by the U.S. attorney for the District of Columbia, not the special counsel’s office. There could be other parts of the investigation Mueller has farmed out to other prosecutors involving Trump, his company, his foundation and his family members. That universe of legal activity will not stop even if Mueller’s part of the investigation does.

As for Mueller’s report, no one outside the special counsel’s team really knows what form it will take. Everything from a simple declination to prosecute to a Leon Jaworski’-like road map to impeachment to a Ken Starr-like potboiler is possible. The restriction on release of grand jury testimony could be lifted by Chief Judge Beryl Howell, the very same judge who recently approved unsealing the Jaworski road map.

I am less concerned than many that Barr, who is a respected lawyer and owes Trump no particular loyalty, will bury the report, especially if Mueller has obtained approval from the chief judge to release grand jury materials to Congress. Perpetuating rumors and speculation about what is in or not in the special counsel’s report serves no one’s interest.

Just as the form of the report is as yet unknown, no outside observer can predict what it will contain. Mueller — who was charged with overseeing both a criminal and counterintelligence investigation — has, with each indictment and conviction, provided previously unknown details, introduced new characters and enlightened us as to the extent of the Russian scheme to interfere with our election.

While court documents and news reports indicate that many members of the Trump team (Paul Manafort, Roger Stone, Donald Trump Jr., Jared Kushner) had contacts with Russians or the Russian cutout WikiLeaks during the campaign, what Trump knew about these and what actions, if any, he approved have not yet been revealed. He might have been privy to every move, utterly clueless or somewhere in between. Without knowing what a host of cooperating witnesses, including Cohen, Michael Flynn and Donald McGahn, has told Mueller, it’s foolhardy to speculate as to what Mueller has learned.

The only “collusion” by Trump we can definitively identify occurred in plain sight — his public request for the Russians to go find Hillary Clinton’s emails. WikiLeaks would later oblige, releasing the first emails within hours of the “Access Hollywood” tape’s release. (Trump’s efforts to pursue the Moscow Trump Tower deal despite Trump’s public denials provide a possible motive for Trump to cover up his Russian connections, but do not on their face appear to be illegal.)

More likely to be included in Mueller’s report is a catalogue of Trump’s efforts to disrupt and interfere with investigations into his and his campaign’s Russia contacts. Trump’s role in concocting phony cover stories (regarding the reason for firing James Comey as FBI director, to explain the June 2016 Trump Tower meeting), his offers to pardon witnesses, his efforts to influence the Manafort jury by publicly disparaging prosecutors, his attempts to get then-Attorney General Jeff Sessions to unrecuse himself, his attempt to persuade Comey to go easy on Flynn, and any potentially misleading written answers by Trump to Mueller’s written questions could be laid out so as to bring us to the inescapable conclusion that Trump obstructed justice.

Trump and his team are right in one respect: Mueller is highly unlikely to indict a sitting president in violation of Justice Department guidelines. (As a former Justice Department official who has worked with Mueller over the years told me, “He’s not a guy to color outside the lines.”) The immediate consequences for the president will be political. Once Mueller is done, the host of other investigations will continue while the focus moves to Congress. Congress and the voters get the last say as to when and under what conditions Trump’s presidency will end.

Personally I agree more with emptywheel who is less impressed by the rumors of “winding down”.

Questions to Ask before Reporting a BREAKING Mueller Report
emptywheel
February 20, 2019

Because a lot of people have asked me about this and because Williams (and some other journalists) don’t appear to know enough about the Mueller investigation to ask the proper questions to assess that claim, I’d like to lay out a little logic and a few facts. It’s certainly possible that a Mueller report is coming next week — I’d argue that one is assuredly coming on Friday. But I doubt that means what Williams thinks it does.

The conclusory report is not coming next week

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When Mueller is done, he has to submit a confidential report to the Attorney General (who is now Mueller’s friend William Barr) telling him what he did and didn’t do. Given everything Barr said as part of his confirmation process, we’re unlikely to see this report.

To assess whether this report is what Pete Williams thinks is coming, we should assess whether public evidence is consistent with Mueller being done.

The answer to that is clearly no. He’s still chasing testimony from Roger Stone flunkie Andrew Miller and from some foreign owned corporation (and has been chasing that, in the case of Miller, since last May).

Given that Miller already interviewed with the FBI for two hours and the foreign company is, by dint of being foreign, a no-brainer target for NSA, it’s quite likely Mueller knows what he’s getting from both of these entities. He just needs Miller on the record, so he can’t change his story to protect Stone, and needs to parallel construct the information from the foreign company. So it’s possible that as soon as Mueller gets both of these things, he’ll finish up quickly (meaning The Report could be soon). But there is no way that’ll happen by next week, in part because whatever the DC Appeals Court says in the Andrew Miller case, the loser will appeal that decision.

So it’s virtually certain that The Report is not coming by next week.

A report talking about “collusion” is coming this week

But maybe NBC’s sources are speaking metaphorically, and mean something else that isn’t the conclusory report but that will more closely resemble what everyone thinks of when they talk about The Report.

That’s likely to happen, but if it does, it’ll just be a partial report.

That’s because both Mueller and the defense have to submit a sentencing memo in Paul Manafort’s DC case Friday. As I noted back in November when Mueller’s prosecutors declared Manafort to have breached his plea agreement, this sentencing memo presents an opportunity for Mueller to “report” what they’ve found — at least with respect to all the criminal actions they know Manafort committed, including those he lied about while he was supposed to be cooperating — without anyone at DOJ or the White House suppressing the most damning bits. DOJ won’t be able to weigh in because a sentencing memo is not a major action requiring an urgent memo to the Attorney General. And the White House will get no advance warning because Big Dick Toilet Salesman Matt Whitaker is no longer in the reporting chain.

So, as noted, Mueller will have an opportunity to lay out:

1. The details of Manafort’s sleazy influence peddling, including his modus operandi of projecting his own client’s corruption onto his opponents
2. The fact that Manafort already pled guilty to conspiring with a suspected Russian intelligence asset
3. The details about how Manafort — ostensibly working for “free” — got paid in 2016, in part via kickbacks from a Super PAC that violated campaign finance law, possibly in part by Tom Barrack who was using Manafort and Trump as a loss-leader to Middle Eastern graft, and in part by deferred payments or debt relief from Russian-backed oligarchs
4. Manafort’s role and understanding of the June 9 meeting, which is a prelude of sorts to the August 2 one
5. The dates and substance of Manafort’s ongoing communications with suspected Russian intelligence asset Konstantin Kilimnik, including the reasons why Manafort shared highly detailed polling data on August 2, 2016 that he knew would be passed on to his paymasters who just happened to be (in the case of Oleg Deripaska) a central player in the election year operation
6. The ongoing efforts to win Russia relief from the American Ukrainian-related sanctions by pushing a “peace” plan that would effectively give Russia everything it wants
7. Manafort’s ongoing discussions with Trump and the Administration, up to and including discussions laying out how if Manafort remains silent about items two through six, Trump will pardon him

Because those items are all within the substance of the crimes Manafort pled guilty to or lied about during his failed cooperation, they’re all squarely within the legitimate content of a sentencing memo. And we should expect the sentencing memo in DC to be at least as detailed as the EDVA one; I expect it, like the EDVA one and like Manafort’s plea deal, will be accompanied by exhibits such as the EDVA one showing that Manafort had bank accounts to the tune of $25,704,669.72 for which suspected Russian intelligence asset Konstantin Kilimnik was listed as a beneficial owner in 2012. Heck, we might even get to see the polling data Manafort shared, knowing it was going to Russia, which was an exhibit to Manafort’s breach determination.

The only thing limiting how much detail we’ll get about these things (as well as about how Manafort served as a secret agent of Russian backed Ukrainian oligarchs for years) is the ongoing sensitivities of the material, whether because it’s grand jury testimony, SIGINT collection, or a secret Mueller intends to spring on other defendants down the road.

It’s the latter point that will be most telling. As I noted, thus far, the silences about Manafort’s cooperation are — amazingly — even more provocative than the snippets we learned via the breach determination. We’ll likely get a read on Friday whether Mueller has ongoing equities that would lead him to want to keep these details secret. And the only thing that would lead Mueller to keep details of the conspiracy secret is if he plans to charge it in an overarching conspiracy indictment.

We may also get information, however, that will make it far more difficult for Trump to pardon Manafort.

So, yeah, there’s a report coming out this week. But it’s not The Report.

Any overarching conspiracy indictment will not be coming this week

It’s possible Mueller is close to charging an overarching conspiracy indictment, laying out how Trump and his spawn entered into a quid quo pro with various representatives of the Russian government, getting dirt on Hillary and either a Trump Tower or maybe a bailout for the very same building in which Manafort met with Konstantin Kilimnik on August 2, 2016. In exchange for all that, Trump agreed to — and took steps to deliver on, with some success in the case of election plot participant Deripaska — reversing the sanctions that were such a headache to Russia’s oligarchs.

Such an indictment, if Mueller ever charges it, will look like what Trump opponents would like The Report to look like. In addition to naming Don Jr and Jared Kushner and Trump Organization and a bunch of other sleazeballs, it would also describe the actions of Individual-1 in adequate detail to launch an impeachment proceeding.

But that indictment, if Mueller ever charges it, won’t be coming on Friday or Monday, as Williams predicts, because it likely requires whatever it is Mueller is trying to parallel construct from that foreign-owned company. And even if SCOTUS denies its appeal today, it’s unlikely that evidence will be in hand in time for a Friday indictment.

Mueller could ensure a report gets delivered to Jerry Nadler next week … but that’s unlikely

There’s one other possibility that would make Williams’ prediction true: if Mueller deliberately triggered the one other way to deliver a report, by asking to take an action William Barr is unlikely to approve, and if Mueller was willing to close up shop as a result, then a report would go to Congress and — if Barr thought it in the public interest — to the public.
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The only thing that Mueller might try to do that Barr would not approve (though who knows? maybe what Mueller has is so egregious Barr will surprise us?) is to indict the President.

I think this is unlikely, for all the reasons the first possibility laid out here is unlikely: that is, Mueller is still waiting on two details he has been chasing for quite some time, and I doubt he’d be willing to forgo that evidence just to trigger a report. It’s also unlikely because Mueller is a DOJ guy, and he’s unlikely to ask to do what he knows OLC says he should not do.

Still, it’s hypothetically possible that Mueller believes Trump is such an egregious criminal and national security risk he needs to try to accelerate the process of holding him accountable by stopping his investigation early (perhaps having the DC AUSAs named on the Miller and Mystery Appellant challenges take over those pursuits) and asking to indict the President.

But if that’s what Williams is reporting, he sure as hell better get more clarity about that fact, because, boy would it be news.

All of which is the lesson of this post: If you’re being told — or telling others — that Mueller’s report is imminent, then you’re either being told very very big news, or bullshit. Do yourself and us a favor of learning the base level regulations to understand which it is.