Some different scenarios for the big finale
by digby
Now that it seems the Russia investigation is starting to get real, it’s tempting to assume that we are going to know “the whole story” very soon.
Maybe. But this piece by Garrett M. Graff at Wired shows there are a number of scenarios that might unfold:
The tea leaves around Mueller in recent weeks seem especially hard to read—and they’re conflicting at best. CNN’s special counsel stakeout has spotted prosecutors working long hours, through snow days and holidays—just as they were in the days before Michael Cohen’s surprise guilty plea last fall for lying to Congress—yet there’s also been no apparent grand jury movement since Roger Stone’s indictment. So even as CNN’s stakeout spotted DC prosecutors entering Mueller’s offices—the type of people who Mueller might hand off cases to as he winds down—and the special counsel’s staff carting out boxes, there’s also recent evidence that Mueller still has a longer game in mind. The Roger Stone prosecution is just getting underway. Mueller is still litigating over a mystery foreign company. And he’s pushing forward trying to gain testimony from a Stone associate, Andrew Miller.
What does “wrapping up” even look like?
In fact, the list of loose threads at this point is, in some ways, longer than the list of what Mueller has done publicly. There’s conspiracy theorist Jerome Corsi’s aborted plea deal; would-be Middle East power broker George Nader’s lengthy cooperation with Mueller, which has resulted in no public charges; the mysterious Seychelles meeting between Blackwater mercenary founder Erik Prince and a Russian businessman; and then—of course—the big question of obstruction of justice. Add to that the host of recent witness testimony from the House Intelligence Committee that representative Adam Schiff has turned over to Mueller’s office, in which other witnesses, Schiff says, appear to have lied to Congress. And besides, there are a host of breadcrumbs that Mueller left in the more than 500 pages of his court filings that would all prove superfluous if further action didn’t lie ahead.
Open questions remain, too, about bit characters like Carter Page. The seemingly hapless, hat-wearing onetime foreign policy aide was one of the starting points of the entire Russia probe—and the controversial FISA warrant that targeted him was renewed twice, in 2016 and 2017, meaning that investigators found evidence at the time that he was still being targeted by foreign agents. And yet he’s nearly disappeared from the public radar of the Russia probe. Does he reemerge—or is Page merely destined to become the Rosencrantz or Guildenstern of the Russia probe?
Or what about the odd communications between a Trump organization computer server and a server belonging to Russia’s Alfa Bank, which The New Yorker’s Dexter Filkins dove into last October?
There remain many open questions, even as the consensus around Washington appears to be zeroing in on Mueller “wrapping up.” But what does that really mean? Are we just hours away from a sweeping indictment that makes public the pee tape and explains every intimate detail of a years-long plot to co-opt Donald Trump as a Russian intelligence asset that dates all the way back to 1987, as Jonathan Chait has argued? Or are we heading to what the president’s lawyers have argued all along—that, as awful as all the unrelated criminality of Michael Flynn, Paul Manafort, and Michael Cohen was, none of it amounted to “collusion,” and this entire enterprise has been a worthless Witch Hunt by 13 Angry Democrats?
And what does “wrapping up” even look like? Robert Mueller has written a “Mueller Report” once before, examining the Ray Rice domestic violence incident for the NFL, one of his first projects after leaving as FBI director. It was a 96-page report that overwhelmed with the tenacity and thoroughness of Mueller’s investigation. Five pages of the report focused on how packages were signed for in the NFL mailroom, and Mueller’s team tracked down all 1,583 telephone calls that went in or out of NFL headquarters during the period in question. Yet its conclusions were narrow, and left many critics of the league frustrated. Mueller stopped well short of the sweeping pronouncements and indictments that many had hoped he’d bring against the NFL’s culture of coddling alleged abusers.
In some ways, that report helps illustrate just what we might expect in the hours, days, weeks, or months ahead as Mueller “wraps up.” In broad strokes, there are seven scenarios that “Mueller wrapping up” could really mean:
1. Mueller sends the attorney general a simple “declination letter,” telling Bill Barr that he’s concluded his work as special counsel, the related grand jury has charged all identified crimes worthy of prosecution, and that there are no further cases to come. In some ways, a letter this simple—which itself would represent a stunning anticlimax to the most politically charged investigation in modern American history—would be the most “Mueller-like,” an understated and quiet end to the probe by a man who has always preferred to let his work speak for itself. If Mueller stops here, with no further meaty comment or additional charges, his probe will still rank as one of the most significant and eye-opening counterintelligence probes in American history—even though it would have failed to identify any direct “collusion” between Trump and Russia.
2. Mueller compiles a detailed “roadmap,” providing Congress with an annotated bibliography or index of sorts outlining impeachment-worthy presidential “high crimes and misdemeanors.” Lawfare’s Benjamin Wittes and others pried out of the National Archives the analogous document that the Watergate special prosecutor created to help Congress charge President Nixon, a detailed guide to evidence and grand jury testimony that could inform an impeachment trial. This might be the most compelling conclusion for Mueller if he’s abiding by the Justice Department policy that the sitting president can’t be indicted but he has identified criminal behavior by the president himself. It may be similarly attractive if Mueller has found compromising actions by the president that fall short of a chargeable federal crime but that nonetheless represent political behavior or collusion that a healthy democracy cannot abide in its leaders or candidates.
3. Mueller authors a detailed novelistic narrative, akin to what the 9/11 Commission wrote or what Ken Starr authoredat the conclusion of his Whitewater hearing, a document that could stretch to hundreds of pages and provide in rich, narrative detail—with footnotes aplenty—the be-all and end-all story of the Russian attack on the 2016 election and the role that Trump associates may or may not have played in helping it. While this document is most similar to what many Americans have long believed the “Mueller Report” would look like, in some ways this seems the least likely outcome simply because it’s the most sweeping, which would go against Mueller’s inherent instincts.
4. He offers both a final round of “his” indictments as well as a detailed report like #2 or #3. Mueller’s existing court filings point to the idea that he’s considering or building toward a final overarching conspiracy indictment, one that connects Americans to the Russian attack on the election—either via WikiLeaks, Russian intelligence asset Konstantin Kilimnik, or other avenues. If this is the final outcome, it’s possible that Mueller has already told us precisely what he’s doing. After all, last summer’s GRU indictment began with the charge that “GRU officers … knowingly and intentionally conspired with each other, and with persons known and unknown to the Grand Jury (collectively the “Conspirators”), to gain unauthorized access (to “hack”) into the computers of U.S. persons and entities involved in the 2016 US presidential election, steal documents from those computers, and stage releases of the stolen documents to interfere with the 2016 US presidential election.” That language could easily encompass Americans who participated, and since both the GRU indictment and the IRA indictment are “conspiracy” cases, Mueller could wrap up by simply filling in some more of those “persons known … to the Grand Jury,” e.g., Americans who participated in the plot.
5. He offers a report, but not the report, something more akin to a progress report rather than a single, definitive one. This scenario could also include multiple reports—concerning perhaps not just the Russian probe but broader investigations into foreign influence in Washington. The Daily Beast hinted in December that Mueller was preparing a special report on Middle Eastern influence in the 2016 election, which might or might not be separate from the question of Russian influence in the campaign. This progress report could also announce that’s he finished investigating the “Big Question” (e.g., Russia’s role in the 2016 election) but that he intends to continue sorting through ancillary matters—like, for instance, the Roger Stone case, the House witness transcripts, or the foreign mystery defendant—for perhaps months or even years.
6. He closes up shop but refers numerous active cases to other prosecutors—similarly ensuring that his probe lives on for years to come. Again, this could be because he feels like he’s answered his main charge—Russia—even though he’s uncovered much ancillary criminality. Schiff has begun hinting in recent weeks that he feels Mueller has been too narrow in his investigation, and that he intends to dive deep into Trump World’s money laundering and past business deals. The special counsel construct and mission was never perfect—and Mueller, if the Ray Rice case is a guide, may indeed have interpreted his charge narrowly, leaving big and worthy questions to be examined by prosecutors in DC, New York, Virginia, New Jersey, and elsewhere. The US Attorney for the Southern District of New York, and counterparts in DC and Virginia, have already picked up at least half a dozen ancillary cases among them.
7. Mueller unseals one or more long-standing sealed indictments. The media and bloggers have regularly trackedthe abnormally large number of sealed indictments filed over the last year in DC federal court, the jurisdiction where Mueller has been worked, including 14 added between August and November—a period where Mueller was theoretically “quiet” around the midterm election—and four recent sealed indictment that seemed to parallel the Stone indictment. Whether any relatee to Mueller remains to be seen, but in some ways the idea of piling up sealed indictments would have been the smartest way for Mueller to ensure that if he was fired, his case lived on.
While the seven scenarios above capture the broad outlines of what the end of his probe might look like, the truth is that he could choose some of one and a bit of another, meaning that there are almost infinite variations of how the case could unfold from him in the days ahead.
Yet it’s also worth noting that the Mueller probe—however it ends—represents a shrinking percentage of Trump’s potential legal troubles, as a total of at least 18 investigations surround Trump’s world, led by at least seven different prosecutors and investigators. (Since WIRED’s original tally of 17 distinct investigations in December, we’ve seen news of a state and federal probe looking at undocumented workers at Trump’s New Jersey golf club.) And all of that doesn’t count any of the work by the new Democratic-led House Intelligence Committee, the Senate Intelligence Committee’s ongoing work, nor any of the other probes led by other House committees. Even a complete and total clean exoneration by Mueller on the Russia question would represent only a tiny ray of legal sunshine for the president.
And yet there’s good reason to believe that Trump won’t get that total exoneration, as Mueller’s conspicuous silences in court filings on the collusion question seem to indicate he’s building toward something. Indeed, there have only been two immutable truths thus far in the Mueller probe: First, every move has surprised us, both in timing and content; second, every court filing has been more informed, detailed, and insightful than anyone imagined, and shown us that what we knew publicly was only the tip of the iceberg. There’s no reason to think that Mueller’s denouement will be anything different.
At this moment, we really have no idea what is going to come down but it does seem that something is.
Keep in mind that Cohen will be testifying in public next week as well. And we have Roger Stone facing the judge he threatened on Instagram and Manafort’s sentencing on Friday which may lay out the contours of the conspiracy case.
As I read this piece I was also reminded of this timeline from the Watergate scandal:
The congress and the Nixon White House fought over the tapes for a while, but the writing was on the wall from the moment that happened.
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