Does the Special Counsel, Robert Mueller, have an October surprise ready to unveil before the midterm elections? No, almost certainly not – not if he’s following Department of Justice guidelines, anyway. There aren’t hard and fast rules or detailed instructions to Mueller – none that have been made public – but the DoJ’s policy on investigating electoral fraud says prosecutors should ‘carefully evaluate’ whether their actions have ‘the potential to affect the election itself’. And what is the whole Russia inquiry, if not an investigation of electoral fraud? The DoJ’s guidance warns against ‘the significant risk of interjecting the investigation itself as an issue’.
Too late for Mueller on that count. But it would at the very least be against the spirit of this advice for the Special Counsel’s office to announce new indictments, or his report to Congress, during campaigning for the midterms. That hasn’t stopped feverish speculation that he might do just that. ‘ROBERT MUELLER COULD HAVE AN OCTOBER SURPRISE FOR THE GOP,’was the block capitals headline in Vanity Fair. ‘The special counsel is expected to reach a conclusion—and produce possible indictments—right around the midterm elections this fall.’ A Fox Business anchor, Stuart Varney, also raised the possibility of ‘last minute revelations’ from Mueller: ‘Politics…it’s about to get even nastier. Trump himself has predicted as much, tweeting that the ‘13 Angry Democrats working on the rigged Russia Witch Hunt’ – as he calls Mueller’s team – were planning to ‘meddle’ in the midterms. But: ‘There was no Collusion, except by the Democrats!’
The 13 Angry Democrats (plus people who worked 8 years for Obama) working on the rigged Russia Witch Hunt, will be MEDDLING with the mid-term elections, especially now that Republicans (stay tough!) are taking the lead in Polls. There was no Collusion, except by the Democrats!
— Donald J. Trump (@realDonaldTrump) May 29, 2018
Of course, Mueller has learned the lesson of James Comey’s dramatic last minute intervention in the presidential election (when he publicly reopened the inquiry into Hillary’s emails). The Special Counsel will not make the same mistake. So will there be a November surprise, once the votes are counted? No doubt Mueller will have been piling up indictments during his elections purdah. There may be a great deal to announce after November 8 has rolled around. But don’t expect any indictments to include President Trump. Opinion is divided over whether it is possible to criminally indict a sitting president. The DoJ looked at this question in 1973 and again in 2000. Their answer: ‘Probably not’. A former prosecutor tells Cockburn that Mueller at one point sought academic opinions from scholars on both sides of the argument. But according to Rudy Giuliani – now one of the President’s lawyers – Mueller finally came down on the ‘No’ side. ‘All they get to do is write a report,’ Giuliani told CNN back in May. ‘They can’t indict…after some battling, they acknowledged that to us.’
Some of the President’s enemies have taken to calling him an unindicted co-conspirator after his former personal lawyer, Michael Cohen, pleaded guilty to campaign finance violations (among other charges). Cohen admitted to paying $130,000 hush money to a porn actress, Stormy Daniel, two days before the election. He says Trump told him to do this. That doesn’t matter, according to Alan Dershowitz, the Harvard lawyer who has become Trump’s unlikely defender. You can only be named an unindicted co-conspirator by a grand jury and Cohen never appeared before one, simply admitting a statement of facts put before him by prosecutors – so there can have been no grand jury to name Trump as Cohen’s co-conspirator. ‘Before this claim is repeated so often that people assume it is true, let me state categorically that Trump is not an unindicted co-conspirator and that it is wrong to characterise him as such.’
Trump’s former election strategist (and casino lobbyist) Roger Stone says he – Stone — expects to be indicted. Stone says that Don junior will be charged as well. There’s been speculation about the president’s son-in-law, Jared Kushner, too. All of this would be damaging to Trump in a way that Paul Manafort’s admissions of guilt were not – in Manafort’s case, the President could argue, the offences were all committed before the 2016 campaign had even begun. But with indictments of members of the president’s family, the Russia scandal – or witch hunt, take your pick – would start to seep under doors of the Oval Office. There would also be, if the polls are even half right, a Democratic House, with Democrats in charge of committees, ready to issue subpoenas and – who knows – articles of impeachment. Perhaps, then, the surprise on November 9 will come from Trump himself, a Saturday night massacre of Mueller, his boss Rod Rosenstein, and, for good measure, Rosenstein’s boss, Jeff Sessions.
A Democratic House Judiciary Committee might well declare such firings an obstruction of justice – the charge that was the first article of impeachment against President Nixon. It would be crazy for Trump to give the Democrats the rope with which to hang him. Still, a former Watergate prosecutor, Jill Wine-Banks, thinks Mueller’s people will be preparing for the possibility that a security guard will bar the entrance to their building in Washington DC on November 9. ‘Hopefully, they are planning for this horrible possibility,’ she told MSNBC. ‘They may be doing what we did…we took copies [of everything] home, just in case we got fired and were not allowed to have our documents ever again.’
Get the popcorn ready, whatever happens, November is going to be big month for the Russia inquiry.