Muellers Endgame

https://slate.com/news-and-politics/2018/01/how-robert-mueller-can-ensure-congress-sees-any-case-against-donald-trump.html


Mueller’s Endgame
How he can ensure that Congress sees any case against Donald Trump.

By Frank Bowman
Jan 31, 2018
6:50 PM

This article first appeared on the blog Impeachable Offenses.


One of the biggest open questions about the Russia investigation is what Robert Mueller might do if he were to find legal wrongdoing on the part of the president of the United States. A problem for Mueller, sometimes acknowledged but more often ignored or glossed over, is that he has no independent authority to secure an indictment against a sitting president.

A still more fundamental problem, at least if one hopes that any criminal behavior committed by Trump and uncovered by Mueller might result in the former’s removal from office, is that even a felony conviction would not eject the president. Only impeachment performs that trick. So, if Mueller concludes that Trump did commit a crime and he wants Congress to know about it, he needs a way to present his conclusions to Congress. Unfortunately, he has no independent authority to release the results of an investigation that doesn’t produce an indictment.

However, there are at least two ways Mueller can force the DOJ’s hand, or at least make it easy for Congress to do so. Both approaches would comply fully with Mueller’s limited mandate and the department’s internal rules. First, Mueller could prepare a report and recommendation that Trump be indicted after he leaves office and trust that Congress would find means of obtaining the report. Alternatively, Mueller could recommend immediate indictment, fully expecting rejection of that recommendation, and rely on the technicalities of the Justice Department’s own rules to ensure transmission of his recommendation and reasons to Congress.

Let’s begin with a quick refresher on the limitations of Mueller’s office:

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I like to think that, as both an undoubted patriot and a career public servant not unaccustomed to harnessing formalism to larger ends, Mueller would not be averse to engaging in a bit of bureaucratic Kabuki theater in the interests of revealing Trump’s conduct to Congress while there is yet time to do something about it.

We shall see.