Last night, the media was thrown into a frenzy with news that special counsel Robert Mueller has secured the first charges in his investigation into Russian election interference. Despite the fact that the name or names of those indicted have not been released and the specific charges were not disclosed, the report was heralded as a breakthrough moment in the Russian investigation. CNN contributor David Gergen stated “Well, it certainly looks like the dam is starting to break now.” It could be and then again it might not be. Again, the breathless desire among some commentators is out-stripping the available information. For months, many of us have been saying that it was extremely unlikely that Mueller would assemble this huge prosecutorial team and spend millions without charging someone on something. The core question is whether he is going to move on the two primary allegations in the Russian investigation — collusion and obstruction — that might implicate Trump or his family. In other words, we may have to wait for the arrest or surrender to know if Mueller has unveiled a mountain or a molehill.
If Mueller were to start with a core and major charge against a high-ranking official, it would be a seismic event. My expectations are low. Even if Mueller expects to charge Trump or his inner circle, he would not likely start with those charges. For my purposes, the most important thing is to take a look at the indictment and the underlying facts asserted by the prosecutors. The charge might be minor but the underlying factual context could show a far more serious foundation laid by prosecutors on other crimes or individuals.
As I have previously discussed, Michael Flynn and Paul Manafort are the most obvious targets of charges. However, the violations raised against them are more collateral to the main allegations. They include violations of the Foreign Agent Registration Act (FARA). Only a handful of such cases have been prosecuted since the revision of the Act and these violations are uniformly address administratively. However, that does not bar a prosecution.
If the first charges are under FARA, it would be a relatively weak first showing by the team and would clearly be designed to add pressure for the target to flip as a cooperative witness. To me, it would be a rather anemic start in prosecuting for the regulatory version of jaywalking. The reason that FARA is rarely prosecuted is that most prosecutors do not view it as a good use of their time or public money.
Nevertheless, prosecutors will often target low-lying fruit in building a case toward high targets. The problem for Mueller is that the challenges in his investigation are not simply factual but legal. The theories that has been tossed around often involve some novel (and in my view unsustainable) interpretations. It would be far better for Mueller to build a case toward a more recognized and conventional set of charges rather than adopting massive expansions of election law terms.
We have also discussed the always present threat of an 18 U.S.C. 1001 charge for lying to investigators. Once again, it is a collateral charge and proves not the merits of the core allegations but the evasion of a target. It is an easy charge to bring and it is a favorite of prosecutors, particularly when they cannot establish charges on the core allegations. It is also a charge often used to pressure witnesses.
Manafort has long been my view of the “designated defendant.” Manafort has a rather free-wheeling reputation (to put it in the best light) in Washington as someone engaged in a wide range of financial dealings. He is clearly being investigated for banking and money laundering allegations that are removed from the collusion and obstruction matters. It is another example of the old adage “one day on the cover of Time, next day doing time.” Of all the people who would have least appreciated a spotlight on all of his financial dealing, Manafort would be near the top.
Even collateral charges like FARA and 1001 would mean that prosecutions would likely go into 2018 if not 2019.
The specifics on the charges will be telling in a couple of respects. One will be how close the targets are to Trump. Another will be the how far Mueller if willing to go in bending and twisting the existing law. Many have advocated extreme interpretations of obstruction and election laws that would present problematic cases for appeal. However, Mueller selected a couple senior prosecutors with high controversial records of being reversed in major cases where they twisted federal law or cases beyond recognition.
So, while not to be a buzz kill, we might just want to wait for actual charges before hyperventilating over the latest development in this controversy. Moreover, Mueller could start with minor or modest charges that fact singling a lack of evidence of more serious crimes. While we could gain an insight from the indictment on what he has, we might not.