Is Mueller on the Election Clock? Should he Be?

By James A. Kidney

Texas hosted the first primary election of 2018 on March 6, kicking off the race for the entire House of Representatives and one-third of the Senate.  The contested Senate seats are mostly owned now by Democrats in pink or red states.  Another big state, Illinois, holds its primary March 20.  There is some electoral relief until May 8, when four states, including barometer states North Carolina and Ohio, hold their primaries.  Thirteen states hold primaries in May with 17 more in June.

Hello, Bob Mueller?

Is time running out?

Most prognosticators of the Mueller investigation believe there is still a long way to go before final indictments and a confidential report to the acting attorney general complete the actions of the special counsel.  The predictions are based on known grand jury subpoenas and named cooperating witnesses.  The Mueller team itself seems pretty much inoculated against the D.C. disease known as leaks, so everything you know about Mueller’s deadline, if there is one, is speculative.

Meanwhile, voters are weighing options in primaries.  Candidates are staking out positions on their support or opposition to President Trump, or, in some cases, trying without much success to avoid mention of our president entirely.

Despite wishful thinking by Democrats, there is no assurance of a big midterm sweep sufficient to regain

The clock is ticking.

the House majority, much less to take control of the Senate.  Republicans can, so far, run on a good economy and, in some of the most industrial states, perhaps even persuade voters that Trump tariffs are good for them.

As in 2016, large segments in the middle of the country will vote Republican in part to spite coastal liberals and to further broadcast their economic  and social resentments. Democrats, meanwhile, have failed to establish a strong counter-image other than being anti-Trump and, as always, to be identified with divisive cultural, racial and gender issues, as well as abortion.  If history holds, gun regulation will fail as a litmus test among most voters, though still be one for gun owners.

There is an even chance the GOP will keep the House, narrowly, and a better chance it will keep the Senate.

Which brings up Mueller.  What if Mueller’s investigation has found, or is on the verge of concluding, that the president of the United States committed a crime?  It could be money laundering, unlawful campaign funding, or paying off a blackmailer in the currency of executive policies or practices.  Or something else.  The crime could be a moral one, such as theft, fraud or treason, or it could be one involving breaking important regulations, such as campaign finance or ethics. Or Mueller could conclude that Trump knowingly accepted non-cash help from Russia, which may or may not violate a law, but certainly would offend large numbers of Americans.

At what point does the voting public have a right to know?

[If Mueller has evidence that our president is subject to Russian control via blackmail or debt, then he should report that to intelligence services and the intelligence committees of the House and Senate post haste.  That would seem a clear-cut obligation.  Crimes not involving treason are a closer case addressed herein.]

What if Mueller finds crime among Trump’s family and associates (as is already clear with Manafort and Flynn indictments), but insufficient evidence that Trump himself was a conspirator? Is that a subject for voter consideration?  Probably, but perhaps not sufficient to endanger the investigation with a public report.

In other words, Trump could be dirty, or he could be personally clean and surrounded by crooks.  It would not be too surprising if Mueller concluded some violated the law for personal gain or misplaced political loyalties, but were careful not to implicate their candidate and leader.

In a perfect world, Mueller would report his findings and indict all wrongdoers in time for voters to consider the allegations during the primaries and the general election.  Candidates would be forced to answer with their own views on the seriousness of any allegations and how they intend to proceed if elected.  If Mueller finds wrongdoing sufficient to include Trump, the congressional class of 2019 would have to consider whether to impeach and convict the president.  If nothing was found to implicate Trump in the wrongdoing of his associates, Democrats would be forced to run against Republicans more on policy issues (while still attacking Trump’s character and his criminal associates) and the GOP could be a little more smug about its chances.

Clearly, these are issues warranting public debate as voters consider their choices.

News flash:  It is not a perfect world.  Mueller would be satisfying his responsibilities if he continued to investigate through November, letting the electorate fend for itself in ignorance of his findings except as those he chose to make public regarding lesser figures than the president.

But should he?  Should Mueller instead submit a report to the assistant attorney general by mid-summer or earlier identifying what evidence he has, if any, of involvement of the president in illegal activities?  Should the assistant attorney general make at least a version of the report, redacted as to sources, as necessary, available to the public?   The report could be clearly labeled an interim one, rather than a conclusion to the investigation.  In this way, the voting public and the candidates asking for their vote could address the implications of what the special prosecutor finds as the investigation continues to a conclusion.

Such a process results in the elusive “informed voter.”  If the special prosecutor reports there is a fire in the Oval Office, impeachment sentiment can be tested, and voters cast their preference accordingly.  Republican fans of Trump would have to defend their position or change it based on the information in the interim report.  Trump would be pressured to explain himself.

Or, the country could vote in near-total ignorance of what the special prosecutor is finding.

As noted, the best solution is for Mueller to conclude his investigation in the next three or four months by issuing indictments and a report.  If the evidence shows the president to have committed a federal crime, Mueller should indict him and let the courts and the political process decide if a sitting president can be indicted.

But what if he can’t do this?  What if he knows to a moral certainty, supported by substantial evidence, that Trump should be indicted, but he has not completed the investigation to his satisfaction?  He is surely aware of the old phrase that “if you shoot to kill the king, you had better not miss.”

If he issues a report, through the assistant attorney general, without a completed investigation, Republicans will accuse him of political bias and of trying to influence the mid-term primaries and elections.  They would be correct, but Mueller would act out of concern for the country, not because he favors one party or set of candidates.  He would be Paul Revere, with a persuasive case, not James Comey, with only suspicions.  Democrats will call him a responsible servant of justice.  Trump will deny, deny, deny.

Whether the interim report becomes just another political football, chewed upon incessantly by cable news and then spewed into history without much impact, will depend on the strength of the evidence.  So, leaving the public ignorant while firming up the case could arguably be a better plan on grounds it is better to let the clock run through election day rather than present a partial case which would be merely fodder for a campaign.  But a strong case, with substantial evidence to display, could be worth the risk.

Is the election season going to act as a timeclock on Robert Mueller?  Should it?  Again, that should depend on the evidence.  If it is strong that Trump is a crook, Mueller should issue a report, if only an interim one, telling us so in time to effect campaigns for the mid-term seats and risking his reputation for being above the fray.  This logic applies equally if the evidence is strong that Trump was not involved in any unlawful activities.

The problem is if the evidence is somewhere in the middle of these conclusions. If it is inconclusive, there is nothing to report until the end of the investigation.  Doing otherwise would truly mimic the unfortunate late-campaign action of Comey.

Mueller surely is conscious of this responsibility to inform the public when voters can have an effective voice.  We are, after all, still a democracy. But he may find the needs of the investigation outweigh those of the voters.

The easiest course is to proceed secretly with an investigation to its conclusion, damn the electoral process.

But is it right?

So what's your view on these issues? Send a comment.

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