Renato Mariotti is a former federal prosecutor who handled many obstruction cases. He is now a partner at Thompson Coburn LLP.

What is Robert Mueller up to?

Although the scope of the special counsel’s investigation is vast, public reporting of his activities indicate the direction his investigation is taking and gives us a good sense of the types of charges that could result. But most of the breathless speculation about what he will ultimately do is likely wrong—the result of a misunderstanding of how the law works, a misreading of the public evidence we’ve seen so far or wishful thinking by those who would either like to see the president driven from office or see everyone on his team exonerated.


As a starting point, it’s important to keep in mind what prosecutors do: They investigate discrete crimes. Although the media often throw around phrases like “Russian collusion,” that term has no legal meaning whatsoever. Mueller won’t charge one grand conspiracy involving everyone he’s looking at. If he brings charges, expect to see individuals charged separately unless they committed a crime together.

Top focus: Paul Manafort and Michael Flynn

The person in the greatest legal jeopardy, given what we know from media reports, is former Trump campaign chair Paul Manafort, whose home was searched by the FBI. When the bureau executes a search warrant at your home, that means the prosecutor has already convinced a judge that there is good reason to believe a crime was committed and that evidence of that crime was at your house. That’s bad news for Manafort.

But that doesn’t mean Mueller’s search warrant application alleged that Manafort is or was conspiring with Moscow. There are crimes that are much more straightforward to prove, such as false statements in disclosures made by Manafort. It’s more likely that Mueller is focused on easy wins like this.

The same is true of Flynn, the former national security adviser who is under scrutiny for failing to disclose income from Russia-related entities. Proving that Flynn lied on a form is much more straightforward than proving an agreement between him and foreigners. Recent news that Flynn’s son is also in Mueller’s sights suggests that the former FBI chief might be developing a case against the son in the hopes that Flynn will cooperate to obtain leniency for his son, which is called “vicarious cooperation.”

Neither of these two pieces of the Mueller investigation has any apparent connection to the rest of what his team is investigating, and if either results in charges, they would be contained in stand-alone indictments that are unconnected to the other matters they are looking at.

Obstruction of justice

The other aspect of Mueller’s investigation that appears to be fairly advanced is his obstruction investigation. We know Mueller is looking at obstruction related to the firing of FBI Director James Comey for many reasons—most recently, the Justice Department refused to permit a Senate committee to interview two FBI officials who were witnesses on this issue, and when asked about the matter, referred questions to Mueller. This indicates that Mueller believes the FBI officials are potential witnesses. (If Mueller thinks he might use their testimony later, he would want to reduce the risk that potential defendants and their counsel can learn about it in advance. He also doesn’t want to generate inconsistent accounts from witnesses that can be used to undermine them at trial.)

Mueller also has set up interviews with White House officials who were reportedly involved in the decision to fire Comey, and Trump lawyers reportedly sent a memo to Mueller making legal arguments about obstruction and claiming that Comey is not a credible witness. This suggests Trump’s legal team believes Mueller is focused on obstruction. They wouldn’t waste their time otherwise.



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The strength of the obstruction case against the president is still an open question, however. On the day Comey testified before the Senate Intelligence Committee, I told the New York Times that “a prudent prosecutor would want more facts before bringing this case against a president.” Since then, many more facts have been disclosed, including Thursday’s revelation that the president erupted at Attorney General Jeff Sessions when he learned of Mueller’s appointment, calling him an “idiot” and demanding his resignation.

The intensity of Trump’s reaction to the appointment is unusual and will prompt questions about why he cared so deeply about losing control over the Russia investigation. Moreover, former White House aides Steve Bannon, Reince Priebus and Vice President Mike Pence will likely be questioned about what they told the president to persuade him not to fire Sessions, and what he said in response. The president’s words could be used by Mueller as evidence of his “corrupt” intent, which he would need to prove obstruction of justice.

The most significant testimony could come from White House Counsel Don McGahn, who reportedly looked at a letter justifying Comey’s firing that was drafted by White House aide Stephen Miller at Trump’s direction. McGahn made numerous deletions and comments in the draft and also discussed his concerns verbally, according to the New York Times, but it was never published. Mueller has that letter, the Justice Department has confirmed.

McGahn’s comments could be extremely important. If McGahn counseled Trump that firing Comey for the reasons he originally stated could create legal liability for the president, that could be powerful evidence for Mueller. Alternatively, if McGahn’s concerns were focused solely on the tone or language used by Miller, Trump would have an “advice of counsel” defense—he could say that the fact that his lawyer did not raise these concerns led him to believe there was no legal jeopardy associated with firing Comey.

At this point, too little is known to evaluate the strength of the obstruction case, particularly against anyone other than the president himself. Because most legal scholars believe a sitting president cannot be indicted, any legal liability for Trump himself would likely come via impeachment proceedings, a political process that would require votes from a GOP House majority as well as at least votes from 19 GOP senators—assuming Democrats vote in lockstep—to convict. For that reason, any legal action by Mueller on the obstruction front would likely come against others who aided an obstruction effort, not against the president. While some legal scholars—including one who provided an opinion to then-independent counsel Kenneth Starr—believe the president could be indicted while in office, Mueller would likely follow Starr’s approach of presenting a report for Congress to consider.

What we’ve discussed so far is consistent with a September 6 email that White House lawyer Ty Cobb sent in reply to someone who used a spoof email account to pretend to be his colleague. Cobb indicated that Manafort and Flynn have “issues” but he believes the president and White House would be cleared. That could be spin, but it acknowledges that—based on what he knows, which is more than we do—the Manafort and Flynn issues are distinct.

Another person facing his own distinct liability is the president’s son-in-law Jared Kushner, who has come under scrutiny for failing to disclose contacts with foreign individuals. The government would need to prove that those omissions were made “knowingly” and “willfully,” and as I’ve analyzed elsewhere, Kushner’s legal team asserts that the omissions were inadvertent.

The Trump Tower Meeting

Another major aspect of the Mueller investigation is the meeting at Trump Tower that was attended by Donald Trump Jr., Kushner and Manafort. Trump Jr.’s many statements about the meeting, one of which was highly misleading and allegedly dictated by the president, have created problems for him that could result in a charge if his statements to Congress (which I dissected here) were false.

As for the meeting itself, what Trump Jr. and Kushner have admitted publicly is insufficient to establish liability. Whether that encounter results in charges depends on whether Mueller can prove that more happened within the meeting—or that there were more meetings.

Of course, meeting with Russians is not itself a crime. To bring charges, Mueller would need to prove there was an agreement to commit a crime and that one of the Trump associates joined that effort, or that they knew that a crime had been committed (like hacking a U.S. server) and helped it succeed. It is also a crime to offer or agree to trade an official act (such as repealing sanctions) in exchange for something of value. In addition, it can be a crime to knowingly receive stolen property.

The Facebook angle

Until recently, there was very little that indicated Mueller was far along in investigating the efforts of Russian operatives to undermine our election. That changed when the Wall Street Journal reported that Mueller obtained information from Facebook via search warrant. That news is extraordinarily important because it indicates he presented evidence that convinced a federal judge there was good reason to believe that foreign individuals committed a crime by making a “contribution” in connection with an election and that evidence of that crime existed on Facebook.

Before we knew of the search warrant, Mueller's efforts to obtain information about Russian interference in the election could have been an effort to gather counterintelligence or run out every lead. Now, it looks like he has his sights on specific foreign individuals and their interference in our election.

That also opens up Trump associates to criminal liability. Someone is guilty of “aiding and abetting” when they know a crime is being committed and actively help to make it succeed. So if a Trump associate knew about the foreign contributions that Mueller’s search warrant focused on and helped that effort in a tangible way, they could be charged.

In addition, anyone who agreed to be part of the Russian effort in any way could be charged with criminal conspiracy. They wouldn’t need to be involved in the whole operation or know who else was involved. but they would have to agree to be part of some piece of it.

If Mueller brings charges against Americans who worked with Russians to undermine in the election, those could potentially be the most explosive and wide-ranging charges but also the most difficult to defend legally. I doubt jurors would have much patience for technical legal defenses, however, if there were solid evidence that the American worked with a Russian operative.

Following the money

Lastly, there have been reports Mueller has subpoenaed numerous financial records, and his decision to involve the IRS criminal investigation unit indicates he is looking at tax charges against someone. But it’s unlikely he would bring very wide-ranging tax or money laundering charges. Money laundering can be difficult to prove because it requires a prosecutor to prove an underlying crime, such as bribery or tax evasion.

Mueller’s investigation appears to be proceeding at a rapid pace, but we should not expect it to conclude this year. When it does, any charges that Mueller brings will likely be narrower and more targeted than many observers expect, although the recent Facebook search warrant could result in explosive charges involving cooperation with Russian operatives.

Regardless of what charges are ultimately brought, you can expect them to be carefully considered and limited to what Mueller can readily prove. Proving criminal charges beyond a reasonable doubt to a jury is a weighty burden, and a veteran prosecutor like Mueller will not bring charges unless he is confident he can prove them.