Midterms pose dilemma for Mueller

Special counsel Robert Mueller has a midterms problem.

With the elections less than three months away, Mueller is running out of time to issue more indictments or announce other major developments in his Russia probe without opening himself up to accusations of attempting to influence Election Day.

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It’s a challenge that has befallen previous federal prosecutors and law enforcement officials, to the point that they now typically refrain from taking prominent actions that could have political ramifications within 60 days of a major election.

But there are no clear-cut rules, and both action and inaction can be viewed in hindsight as being politically motivated, something former FBI Director James Comey knows all too well.

“It’s a double-edged sword,” said Stephen Vladeck, a University of Texas law professor. “There comes a point where you are damned if you do, damned if you don’t.” 

There is broad speculation that President Trump or someone in his inner circle — including his eldest son, Donald Trump Jr. — could be implicated in Mueller’s probe. The president, the White House and Trump’s allies have mounted a public campaign to discredit Mueller’s investigation, calling it a politically motivated “witch hunt.”

And taking public steps too close to Nov. 6 could give powerful ammunition to Mueller’s critics, according to some Republican operatives.

“It could be very easy to see the president of the United States at a rally four days before the election talking about fake indictments,” said GOP strategist Doug Heye. “That could be a challenge for the investigation.”

Ford O’Connell, another Republican strategist, argued that many of the White House tactics resemble those used by the Clinton administration to thwart Ken Starr’s investigation into the Monica Lewinsky scandal in the late 1990s. The ultimate goal, he said, is to move public opinion against potential impeachment.

“A lot of what the Trump folks were doing is similar to what the Clinton folks were doing back then,” O’Connell said. “You want to undergird the public opinion about the investigation because essentially you are assuming that there is not going to be an indictment of a president. But there will be a report to Congress.”

Recent polling from Politico and Morning Consult found that Mueller’s public image is at a record low, including among Democrats and independent voters, since he took over the investigation in May 2017.

Those who know Mueller say he’s not blind to the sensitivity of the midterms and the potential implications of unveiling charges against individuals in Trump’s orbit so close to the election.

“I think there is a growing political dynamic that Bob Mueller has to be attentive to,” said Ron Hosko, a former assistant director of the FBI’s criminal investigative division. “I would expect that he will figure out how to navigate this potentially tough water in the next couple of months here.”

Hosko, who worked under Mueller when he was FBI director, also noted the speed at which Mueller tackled previous investigations.

“There was always a sense of urgency with Bob Mueller as director, and certainly what applied to us back then applies to them now,” he said, referring to Mueller’s legal team investigating Russian interference in the 2016 election and possible collusion between Moscow and Trump’s campaign.

The special counsel’s office declined to comment for this article.

While there’s an unwritten rule against taking significant public steps within two months of an election, the fact that there’s no official policy means it’s often interpreted differently from one individual to the next.

Some argue that the guideline applies only when the case involves a candidate who is on the ballot or when the crime affects electoral matters; others say it includes any action that could have an impact on an election.

The Department of Justice explicitly forbids its employees from using their government authority to influence or interfere with elections, and it discourages officials from taking overt steps that could appear to be politically motivated.

“We must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship,” then-Attorney General Eric Holder wrote in 2012. “Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.”

U.S. attorneys general have occasionally issued memos reminding law enforcement officers and prosecutors to be mindful of timing major investigative actions so that they don’t affect an election. Those memos have encouraged Justice Department employees to consult with the Public Integrity Section of the agency’s Criminal Division when faced with questions about overt actions close to Election Day.

There’s also the question of whether inaction could also influence an election.

“The problem is either action has the ability to impact the election,” said Randall Eliason, a George Washington University law professor and former assistant U.S. attorney. “Either choice has an impact, and it’s not necessarily clear where the public interest is going to best be served.”

Comey has been heavily criticized for declining to publicly disclose the FBI’s probe into Russian interference before the 2016 election, particularly because he took the opposite approach with the agency’s investigation of Democratic presidential nominee Hillary Clinton’s private email server from when she was secretary of State.

There are distinctions between the 2016 presidential election and the 2018 midterms. Comey’s public disclosures directly affected a candidate who was on the ballot in 2016, while Mueller’s investigation has not ensnared any midterm candidates. November’s elections also will not include a nationwide vote on any one race.

“The lesson that we all ought to take away from 2016 is that inaction can be just as political as action in the run-up to an election,” said Vladeck. “That’s all the more reason for government prosecutors to not depart from their normal operating procedures.”

In 2016, just two weeks before voters went to the polls, Comey disclosed that he was reopening the investigation into Clinton’s private email use when she led the State Department. He cleared Clinton of wrongdoing — two days before the election — but Democrats argued the damage had already been done.

The Justice Department’s inspector general in June faulted Comey for making a “serious error of judgment” in revealing publicly that the investigation had been reopened. Comey has said his pre-election actions were driven by a desire for transparency.

Mueller’s team is currently prosecuting former Trump campaign chairman Paul Manafort on charges of bank fraud. They expect the trial to wrap up this week or next.

The special counsel is also locked in negotiations with Trump’s legal team over a potential interview with Trump, suggesting his investigation could be nearing its end.

But it remains unknown whether Mueller will announce any additional charges or secure more guilty pleas — before or after the November midterms.