A thread is making the rounds in progressive circles stoking fear that Congress can keep Mueller from indicting people. The thread is written by someone who's an excellent Russian Studies scholar but has no background in the law. Fact—Mueller can indict anyone he wants but Trump.
2/ There are more indictments to come over the next year (and I do mean *future* indictments; there's no reason at all to think there are any sealed indictments waiting to be unsealed). Sessions and Kushner aren't off the hook because they haven't been indicted yet—that's silly.
3/ Pence—or any VP—*can* be indicted while in office, per a 1970s advisory opinion by the late arch-conservative Robert Bork that has since been re-upped by the DOJ. So only Trump is immune from indictment, and he's only immune from indictment because impeachment must come first.
4/ Rosenstein is charged with overseeing Mueller, and it may be that he clears any indictments, but far more likely—given public testimony—is that he just confirms (as he has) that Mueller is acting within his purview (which is broad) and within *that* Mueller can do as he wants.
5/ Read Rosenstein's authorization letter appointing Mueller—Mueller's mandate is *very* broad, and will easily include both any action taken by Trump or Trump officials to cover up Russia contacts *or* any evidence that Trump was compromised by Russia due to past business deals.
6/ If Trump fires Rosenstein, his replacement will have to get through Congress, so the idea Trump can simply insert a stooge who will stop Mueller from issuing indictments is wrong. Likewise, saying that just because someone hasn't been indicted yet means they won't be is wrong.
7/ The chance that there will be "no consequences" for the criminal behavior of people like Sessions and Kushner is *not* coming from voices with any experience in investigation or trial advocacy. Mueller is—in a way that's genius—staging his investigation to maximize its impact.
8/ Kushner and Sessions are, as I've said many times, primary targets at the level of Manafort, Flynn, and Trump Jr. (and right below Trump and Pence). Mueller indicted Manafort and Flynn because Manafort is venal (thus flippable) and Flynn had *already publicly offered to flip*.
9/ The point is, Mueller didn't *need* to indict Sessions, Kushner, or Don Jr. yet because he knew he could roll other targets who'd be able to (a) deliver Sessions, Kushner, and (likely) Don Jr., and (b) simultaneously deliver his highest-value targets, Trump and (maybe) Pence.
10/ Note that Mueller hasn't spoken to Sessions yet, spoke to Kushner about things Flynn had allegedly said to him only after setting a "trap" for Kushner first—having Flynn's post-plea evidence in his pocket—and may not have spoken to Don Jr. extensively yet. It's all strategic.
11/ Not only is it strategic, it can't be stopped. The only person who can gain the protection of political processes is Trump—and only if the Dems don't take over in 2018 *and* Trump somehow gains re-election in 2020. If not, there'll be impeachment and/or a Mueller indictment.
12/ Fears that Trump wishes to create an autocratic government are *real*—and experts on autocracy like the person in question should be listened to on that score. But fears of autocracy stoked by a deep misunderstanding of the law and criminal investigations should be countered.
13/ We just learned Mueller will be investigating Trump and his aides "for most of 2018 and maybe beyond," per major-media reports. That's because there are more indictments coming, more pleas coming, more documentary evidence to be subpoenaed, more second-round interviews to do.
14/ I estimated Mueller's investigation would run for at least 12 to 18 months from his date of appointment, which means anywhere from half to all of 2018 or even beyond that. Do not believe non-attorneys implying that Mueller has shown us all he has evidence- or indictment-wise.
15/ Evidence-wise, all we have are leaks are a few charging and plea documents—a *fraction* of what Mueller has, as evidenced by the fact that every time we learn about an area Mueller is looking at it's one the media isn't yet reporting on. Indictment-wise, we have many to come.
16/ Right now the Republicans *benefit* from the *farcical* argument that we know exactly what Mueller has (or doesn't) and where he's going (or isn't) with his investigation. While legal professionals can make educated guesses, any claim we've seen all there is to see is a joke.
17/ Progressives have to be careful: yes, absolutely believe scholars with a background in Russian Studies and autocratic governments when they talk about stuff I and other attorneys don't discuss—the intricate inner workings of the Kremlin. But do leave the law to the attorneys.
18/ One reason I note—perhaps too often—I'm a member of the state and federal bars in my district, and worked felonies up to first-degree murder, and was trained at two top universities as a criminal investigator (work I then did for a federal public defender), is it *matters*.
19/ I don't put myself forward as an expert in the workings of the Kremlin or Russian history—I try to listen to Russian Studies scholars on that.
I don't put myself forward as an intelligence expert—we've got some great experts to listen to on that score.
But I know the law.
I don't put myself forward as an intelligence expert—we've got some great experts to listen to on that score.
But I know the law.
20/ So if the law is at issue, make sure you're listening to a criminal attorney or investigator, or someone *quoting* a criminal attorney or investigator. The same is then true for intelligence matters or Russian history. Be *especially* careful if a non-expert makes you afraid.
PS/ I'll add here what I've said in other threads—there are *some* legal scholars who say Trump can be *indicted* (that is, charged) while in office, but not *tried* (that is, prosecuted to plea or trial). I would not trust any opinion saying Trump can be *tried* pre-impeachment.
PS2/ In theory, *if* Mueller believes those who say he can *indict* (but still not *try*) Trump, it's true that that indictment could be used to initiate plea negotiations with Trump about resigning from office. But I'm in the camp that says Trump will fight to (nearly) the end.
PS3/ Some in the comments are mentioning Kenneth Starr. Starr was operating under a statute that no longer exists, and his investigation of Clinton is not generally taken as a model either legally, ethically, or investigation-wise. Mueller is unlikely to look there for guidance.
PS4/ Those who've read the Washington Post article—by Professor Rotunda—that others in the comments are pointing to will see even Rotunda sees complications with the argument that Trump can be indicted, and that the DOJ does not agree with her conclusions. washingtonpost.com/opinions/the-p…
PS5/ There is *no* evidence that Rosenstein would change the policy of the DOJ on presidential indictments (which is based on a theory of "exigency" established by conservative hero Bork in the 1970s) in order to permit the indictment of President Trump. So do *not* wait on that.
NOTE/ As an attorney, I'll say I find the Watergate-era argument that the head of the Executive Branch must not be incapacitated by a pending criminal case to be persuasive. Impeachment is the first remedy for good reason: to ensure the stability—and continuity—of the government.
