Everyone is saying it: The Mueller investigation is winding down. The acting attorney general declared the investigation “close to completion” during a press conference. His wife, Marci Whitaker, has also insisted that the special counsel’s investigation is “wrapping up.” President Donald Trump’s nominee for attorney general, William Barr, testified before the Senate Judiciary Committee that, given his public actions, Mueller is “well along” in his investigation.
The press is buying it. NBC says we could be looking at “mid-February” for a delivery of the so-called Mueller report; that would be, well, now. Yahoo! News reported that the probe could be “coming to its climax potentially within a few weeks”—a few weeks ago.
Other sheep entrails and tea leaves are signaling the end as well. Certain investigators in the special counsel’s office are being reassigned to other offices within the Justice Department. There are now only 12, as the president has said, “angry Democrats” (translation: lawyers) working on the Mueller team. (Peter Carr, a spokesman for Robert Mueller, listed the 12 lawyers on Mueller’s staff in an email this morning, along with two attorneys who are still representing the special counsel’s office on specific matters, despite having been reassigned to other Justice Department components.) We are also seeing a migration of investigations into the president’s conduct from the special counsel’s office to other Department of Justice offices, most notably the U.S. Attorney’s Office in the Southern District of New York, and the proliferation of new investigations entirely outside the special counsel’s domain.
Yes, some of the sheep guts are pointing in other directions, too. In January, Mueller extended the grand jury investigating l’affaire russe for an additional six months. The prosecutors are dealing with pending litigation, most notably the Andrew Miller and the mysterious Sealed v. Sealed grand-jury cases, not to mention ongoing prosecutions such as the newly filed Roger Stone case. And there are likely outstanding, yet-to-be-filed criminal matters in the Mueller probe as well; Jerome Corsi—who, by his own admission, was offered a plea agreement by the special counsel in November and proceeded to disclose that agreement to the press—has not yet been charged. Of course, remember that Mueller was going to be finished “shortly after Thanksgiving”—that is, Thanksgiving 2017—before he was going to be finished by or around January 1, 2018, before he was going to be finished by June 2018, before he was going to be finished by mid-February.
But there’s actually a bigger problem than the possibility that all this eager Mueller-is-wrapping-up chatter may be wrong, just the latest instance of overly hasty anticipation of the Muellerpocalypse: No one knows what Mueller’s “wrapping up” actually means.
Consider your own reaction to the news: When you learned that Mueller was wrapping up, did you immediately assume that meant things were coming to a confrontation, or did you assume it meant the president was getting away with everything? Did you assume it meant that Mueller’s investigation was petering out and that he would file some kind of report? That he would “clear” the president? That he would produce a dramatic spree of final indictments? Or did you assume it meant that Mueller was getting ready to issue some kind of devastating written work product that ends up driving an impeachment? All of these are consistent with “wrapping up,” but they are radically different outcomes.
It seems a bit weird to speculate breathlessly that we are careening toward some kind of finality without actually knowing either whether the endpoint is near or what we mean when we say that we are reaching it. But for what it’s worth, here are a few possibilities of what it could mean that Mueller is winding down—assuming that he is, in fact, winding down.
First, there’s a kind of commonsense understanding of the term, under which the scope of the work is nearly complete, with the exception of a few investigative loose ends that will take a little bit of time to tie up. The scope of the investigation, as stated in the appointment order issued by Rosenstein on May 17, 2017, includes:
(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matter that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a) [which governs the jurisdiction of special counsels]
Rosenstein issued a second memorandum, a partially redacted version of which has become public, that clarified that Mueller’s mandate includes allowing him to investigate and prosecute certain activities of the former Trump-campaign chairman Paul Manafort.
So if you imagine that “wrapping up” means this first option, then Mueller and his team have largely finished probing the story of the links and coordination between individuals associated with the Trump campaign and the Russian government. They have largely finished investigating efforts to obstruct the probe. And they are probably spinning off the matters that arose in the course of investigating these core things. Yes, there are still issues to be resolved, but those issues are squarely within the realm of what can be gleaned from filed documents. Some of these might include examining newly seized evidence from Roger Stone; waiting to see whether investigators will learn anything truly significant from Andrew Miller, a matter that is currently before the U.S. Court of Appeals for the D.C. Circuit; and resolving the mystery grand-jury case, which pertains to some foreign-government-owned institution. In this iteration of “wrapping up,” the team largely knows where it is heading, and it’s just a question of getting there. Think of James Comey’s comments about the Hillary Clinton email investigation; by the time the FBI sat down to interview her, he has said, it was quite clear there wouldn’t be a case unless she lied. But the interview had to happen anyway. The FBI was wrapping up.
The problem is that this explanation doesn’t answer the question of how significant those loose ends are to the investigation or how long they will take to tie off—putting aside the fact that it is now mid-February and the investigation still shows no signs of ending. The famed biographer Robert Caro has been wrapping up the fifth volume of his five-volume biography of Lyndon Johnson—the first volume of which was published in 1982—for years. The scope of work is known. He presumably knows what he’s going to say. And yet, as Caro has said, he is “still—at the age of 83—several years from finishing it.” Countless Game of Thrones fans have been waiting since 2011 for George R. R. Martin to wrap up The Winds of Winter, the next volume in his “Song of Fire and Ice” series.
There’s another plausible way to understand Mueller’s “wrap-up” phase. It could mean that the investigative phase of the probe is nearly complete—with or without significant loose ends—but that major decisions are still to come. In other words, if the Mueller team has all or almost all the information it needs, it may still have to decide exactly what to do with that information. Will there be more indictments when the investigation “wraps up,” or will prosecutors ride off into the sunset, leaving a report on Bill Barr’s doorstep?
To say that the investigation is done, in other words, doesn’t answer the question of investigative outcome. If you’re one of those people who have invested a great deal in the Mueller investigation, you might—quite plausibly—see in this decision point the great cataclysm, the moment in which Mueller reveals all in a set of climactic charges. Conversely, if you’re one of those people who think the premise is wildly overstated and the whole thing is a “witch hunt,” you’re waiting for the emperor to be revealed as naked. But the point either way in this iteration is that “wrapping up” is not necessarily the end; it’s merely the end of the investigation.
There’s a third possible explanation: Perhaps both the investigative and prosecutorial decision-making dimensions of the probe are nearly complete, and “wrapping up” means that the special counsel’s office is in the process of drafting a report. In this version, there will be no more indictment fireworks, no more Friday news surprises—or perhaps just a few more. The wrap-up is the writing of some kind of accounting.
But again, that leaves the question of what that accounting will say. It’s rather different if it contains explosive allegations of presidential misconduct that the prosecutor contends would be indictable if committed by someone other than the president than if Mueller slinks off into history with a report that simply says he found insufficient evidence of any crime to bring a case. Assuming this third explanation is accurate, we also don’t know what form such a report would take or how much the public or Congress would see of it. Will it be made public, as congressional Democrats have advocated? Will Congress even be sent the unredacted version of the report? Or will Mueller submit a document directly to Congress, as Watergate Special Prosecutor Leon Jaworski did with his Road Map? So to say that Mueller is wrapping up in this sense says very little about the outcome of his work.
But consider a final possibility: All three of these processes could be taking place simultaneously. Mueller could be on an investigative downslope that will take a bit more time; he will then have decisions to make; and he is in the meantime completing his report.
To sum up, we don’t know how long Mueller will be working; we don’t know whether or how many indictments are left to come, or for what; we don’t know what any report will say; and we don’t know when any of this will happen.
It’s a good thing we know that Mueller is wrapping up.
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