Richard Levick, Esq., Chairman and CEO, LEVICK
Veterans of high-profile prosecutions are marveling at the button-down discipline being exhibited by Special Counsel Robert Mueller in unearthing the Trump inner circle’s dealings with Russia. Yet within its methodical modus operandi, the Mueller team has managed to inject just enough intrigue and human drama into the proceedings to make them easier to follow for laypeople and the media.
In documenting former National Security Adviser Michael Flynn’s December 1 guilty plea, Mueller’s team chose to include a “road map” that identified, without naming names, a series of interactions between Flynn and “very senior officials” that took place during the presidential transition in late 2016 and early 2017 at Mar-a-Lago, Trump’s Florida resort.
It wasn’t compelled by law or tradition, so why include such detail in Flynn’s guilty plea? What would Mueller’s motivation be in telegraphing part of what his team had already established in its negotiations with Flynn?
“Mueller knows who his audiences are – and he’s playing to them,” maintains Jeffrey Cramer, a long-time federal prosecutor who now serves as managing director of the Berkeley Research Group, LLC, a strategic advisory consultancy. The prosecutor’s primary audience, Cramer notes, is the president and his phalanx of current and former aides. But keeping the press and public engaged also matters to Mueller’s team.
“It’s Prosecution 101,” Cramer adds. “Mueller used the Flynn plea to tell his other targets, ‘Look, I’ve got a flipper who’s telling me what I need to know’ about what transpired in these discussions with Russia. Lack of cooperation or lying to the FBI will bring severe consequences.”
Getting 30-year-old George Papadopoulos to flip was one thing, but Flynn’s guilty plea represents a far greater existential threat to the Trump White House, Cramer points out.
“Papadopoulos could be brushed off as a kid who got out of control. With Flynn, the dynamics have changed. He was a very senior foreign policy adviser. Put politics aside for a moment. Most objective observers would say, ‘This is a serious problem for Trump’,” Cramer says.
My colleague Randall Samborn, the head of LEVICK’s Chicago office and a former assistant prosecutor and spokesman for the Chicago U.S. Attorney’s office, observes that Mueller’s approach, e.g., the Papadopoulos arrest and guilty plea and now the Flynn guilty plea, “is playing exactly by-the-book with little or no deviation. Mueller and his team are laser-focused on Russia. They’re charging crimes and fashioning pleas that reflect an investigation that is on track and not on a detour such as charging prior financial crimes – as some critics of the (Paul) Manafort and (Richard) Gates indictment have claimed.”
If Mueller’s team is adhering to a conventional prosecutorial playbook, then Trump’s legal team is cobbling together its own blueprint – and it’s got experts scratching their heads.
Cramer characterized as “boneheaded” Trump’s December 2 tweet acknowledging, in effect, that the president knew his former national security adviser had lied to the FBI when Trump urged FBI Director James Comey to drop his investigation.
The Trump team’s gaffe was “huge,” Cramer says, pointing as evidence to the “incredible machinations” White House lawyers have undertaken in recent days to distance themselves from the damaging tweet. Trump’s personal attorney, John Dowd, an experienced and respected criminal counsel, has performed all manner of verbal gymnastics to claim the tweet was somehow his fault, not the president’s. Either way, it went out on the president’s Twitter account. Trump’s offending tweet may have strengthened the obstruction of justice case against him and his aides, but that doesn’t mean the president can be criminally indicted for obstruction, Cramer argues. The president is not above the law, as recent statements from Dowd and others insinuate, but legal and constitutional scholars differ as to whether a sitting president can be indicted.
Sitting presidential aides can certainly be indicted, however; it’s almost guaranteed that more members of the Trump inner circle will be charged in the days and weeks to come. Mueller’s Mar-a-Lago road map meant that it took analysts a matter of seconds to conclude – and have it confirmed by sources close to the investigation – that one of the “very senior officials” from whom career military officer Flynn was taking orders was Jared Kushner, the president’s son-in-law.
Who else is likely to draw indictments? Mueller will let us know soon enough.
There’s no shortage of candidates, but Samborn warns not to fixate on a “whodunit” checklist. “We know that any number of people – from Flynn to Papadopoulos to Kushner to Donald Trump, Jr., to Carter Page and even to Attorney General Jeff Sessions – that they all had direct contact with various Russians during the campaign and transition. In that sense, ‘they all did it,’” Samborn asserts.
“The questions go to state of mind: what did they understand they were doing, what was their subjective intent? Did they intend to collude with a foreign government to influence the election or were they naively meeting with anyone who came their way?” he asks.
It also doesn’t help that the White House’s talking points would appear, as columnist Dana Millbank of the Washington Post points out, to be evolving (or is it “devolving”?) from “we had no contact with Russia,” to “we had no collusion with Russia,” to “the president cannot be charged with a crime.” That’s not a good trajectory.
Mueller is going to pick and choose; no indictment will be issued unless he’s convinced it’s going to materially strengthen the investigation.
No one knows how this is all going to turn out. We’re much closer to the beginning than we are to the end.
If Mueller issues indictments or secures guilty pleas in the coming weeks – and the betting here is that he will – look for the next road map in the details. He could be leaving a trail of bread crumbs.
Is Mueller so button-down that his buttons have buttons? Yes. But is he impervious to the needs of our fast-moving media world? No.