Chris Truax

Opinion contributor

Special counsel Robert Mueller is showing his hand.

It started Tuesday night, when he filed a memo for Michael’s Flynn’s long-delayed sentencing after he pleaded guilty on Dec. 1, 2017, to lying to the FBI about his contacts with the Russians during the Trump campaign transition. Mueller recommended that Flynn receive little or no jail time based on his “substantial assistance” to the special counsel investigation.



That assistance seems to have been substantial indeed. Over the course of the past year, Flynn met with Mueller’s team or Justice Department attorneys no fewer than 19 times. Fully half of the memo detailing Flynn's assistance is redacted, a reminder that Mueller has a great many lines of investigation that no one, not even President Donald Trump, knows anything about.



Then Mueller filed sentencing memos for Paul Manafort and Michael Cohen. While Flynn got full credit for his early acceptance of responsibility and his complete cooperation, Manafort had his cooperation agreement rescinded because he was apparently incapable of being truthful. Not only has he lost the opportunity for his sentence to be reduced, Mueller will be asking the court to impose an even longer sentence because of Manafort’s false statements.

Mueller's memo details multiple instances of Manafort telling seemingly pointless lies about things that Mueller already knew about. When confronted, he’d eventually tell the truth, only to then tell yet another lie. While some parts of the memo are redacted, many of the lies Manafort told had to do with his relationship with Konstantin Kilimnik, a Russian-Ukranian political consultant who is also likely a Russian intelligence operative.

Where does this leave President Donald Trump?

Mueller’s sentencing memo in Cohen’s case was, in many ways, the most interesting and certainly the most humorous. If Flynn got an A and Manafort got an F, Mueller gave Cohen a B-. Mueller recommended that Cohen receive a substantial prison sentence but because of his “useful” cooperation, Mueller recommended that Cohen be sentenced to something less than the42 months recommended by the Probation Department. The special counsel also recommended that Cohen serve the sentences for his existing cases concurrently, a potentially big break for Cohen. All in all, Cohen will probably end up serving a sentence of 24 to 36 months.



Cohen did not receive full credit for cooperation because he did not fully cooperate. While he was apparently very forthcoming regarding his relationship with Trump and the Trump Organization, he was less so regarding his own separate criminal activity. Much to the Mueller team’s apparent annoyance, Cohen continued to minimize and even misrepresent his culpability for bank fraud and tax evasion. Cohen also declined to “come clean” about possible uncharged criminal conduct, a necessary step for being considered an actual “cooperating witness” in the Southern District of New York.

Of course, the question in everyone’s mind, including Donald Trump’s, is, “Where does that leave Donald Trump?” The answer to that still isn’t clear but, with these sentencing memos, it’s now starting to come into focus.

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First, the comedy. The New York prosecutors' Cohen memo contains the memorable line, “On approximately June 16, 2015, Individual-1, for whom Cohen worked at the time, began an ultimately successful campaign for President of the United States.”

The memo goes on to charge “Individual-1” with conspiracy to commit the same felony campaign finance violations that Cohen pleaded guilty to. There appears to be no question whatsoever that if Justice Department guidelines allowed it, Mueller would have already indicted Trump.

Apparently, though, Mueller was just too cryptic for the president who, after Cohen’s sentencing memo was released, tweeted out, “Totally clears the President. Thank you!”



Now, the tragedy, at least if you are a member of Donald Trump’s inner circle: The net is closing in. The most interesting thing in the sentencing memo was Mueller revealing that the conspiracy to violate campaign finance laws was not just limited to “Individual-1” and Cohen. “Executives” of The Trump Organization (called “the company” in the memo) concocted a scheme to reimburse Cohen for his illegal campaign contributions without revealing that they were campaign-related.

It isn’t clear from the memo who the “executives” are, but there is a very small pool of candidates and most of them are members of the Trump family. One or more of them is almost certain to be indicted.

Trump will test our institutions and rule of law

Finally, Mueller chose to drop yet another bombshell in his Cohen memo. “Fourth, Cohen described the circumstances of preparing and circulating his response to the congressional inquiries, while continuing to accept responsibility for the false statements contained within it.”

What Mueller is saying here is that Cohen’s lies to Congress weren’t just Cohen’s idea. It has been obvious since Cohen’s guilty plea that Trump knew Cohen had lied to Congress and did nothing to correct the record. Now it appears that at least some people in Trump’s inner circle knew in advance that Cohen would lie and even helped him do it.



Difficult and dangerous times are ahead. There is now no chance that Mueller’s investigation will end with a whimper, or that a detailed report will be smothered by an attorney general keen to protect the president. At the very least, there is an indictment waiting for “Individual-1” whenever his presidency ends. And in the near term, there is almost certainly an indictment in the works for one of Trump’s inner circle, possibly even a member of his family. And this is based only on what Mueller did not black out in the memos.



Trump is unlikely to accept any of this. The coming clash will test our institutions and the rule of law as never before. But whether they emerge from this clash irreparably damaged or newly invigorated isn’t up to Trump or Mueller. It’s up to you.

Speak up. Write a letter to the editor. Call your representative. Call your senator. America’s institutions aren’t going to defend themselves. That’s our job.

Chris Truax, an appellate lawyer in San Diego, is on the legal advisory board of Republicans for the Rule of Law.