Things are getting real

Our constitutional crisis deepens. Events are moving so fast and now Robert Mueller, former prosecutor and FBI director, has been appointed special counsel. It is extremely difficult not to jump to conclusions; rumors and half-facts are swirling in your favorite cable news show. While this rather complicated legal process needs to play itself out, things are about to get “real.”

Mr. Mueller will be center stage. As the “special counsel,” he will act as a “mini-attorney general.” Pursuant to Justice Department internal rules, he was appointed to this role by Deputy Attorney General Rod Rosenstein. He has been given a broad mandate by Mr. Rosenstein to go where the facts take him. He will have staff and FBI agents assigned to his investigation, independent of the attorney general.

However, Mr. Mueller’s authority derives from justice’s rules. This means he can be fired by Mr. Rosenstein, his boss (Jeff Sessions) or even the president. This is how the executive branch works. Practically speaking, though, the political consequences of firing someone as respected like Mr. Mueller would be disastrous. Something President Nixon learned when trying to fire the Watergate special counsel, Griffin Bell, in the “Saturday Night Massacre.”

As this mini-attorney general, Mr. Mueller will have complete command and direction authority over all things “Russian” investigation. The FBI agents and staff assigned will report directly to him. He will make prosecutorial decisions and control any grand jury empanelled to subpoena witnesses and documents. Perhaps of the greatest relief for all of us, he will put a muzzle on loose lips and leaks so that the professionals can do their work in a private “safe” space. Grand juries meet in secret, FBI investigators do not reveal their sources, prosecutors decide strategy in the confines of their office. We will not see any testimony on Capitol Hill or about any trips up to the White House. The only “leaks” should be from subjects of the investigation, their attorneys and possibly the Trump administration.

Because things are going to be buttoned up, this will affect the political process. This whole Russian story started with our intelligence community concluding that Putin tried to mess with our presidential election last fall. Congress has a vested interest in learning what and why happened and how to protect our election process for future meddling. This is not a trivial matter. Mr. Mueller will be focused on whatever crimes are implicated by the facts, which he will not be sharing with Congress. This is going to complicate Congress’ ability to protect our election process. We can expect some tension to build between the competing goals – we saw this happen with Iran Contra, where Congress complicated the independent prosecutor’s attempts to convict wrongdoers.

Once Mueller had his team have reviewed everything, a decision will be made about whether or not any crimes committed. Understand the “crime” need not be collusion with Russia, but a “spin-off” of the main issue. This is what happened with the Monica Lewinsky scandal, where that issue was a thin tangent from the original task of reviewing the Whitewater land deal.

More than likely, Mr. Mueller will construct a prosecutorial plan. The most vulnerable subjects of criminal prosecution will be offered the opportunity to offer up useful information to either charge actors with weaker evidence or higher value subjects “up the food chain.” We can expect that criminal statutes not necessarily germane to the original investigation, e.g., was there any collusion between Putin and the Trump campaign, to pressure plea deals. Lying to the FBI (essentially “obstruction of justice”) will probably take a starring role.

Which brings us to Lt. Gen. Michael Flynn. From what is publicly known, his statements to the FBI, his lobbying for Turkey and dinner with Putin, are all problematic. He did not register as a “foreign agent” and he was not permitted to accept payments from a foreign government as retired military. His neck is hanging way, way out there. In another context, these potential crimes might (or might not) be “ticky-tacky fouls”; in the context of such a tripwire investigation into Russian tampering, he’s in huge trouble.

It is pretty much guaranteed that one of the first steps Mr. Mueller takes is to find out if Gen. Flynn wants to “sing” to save his own hide.

This means that if I were a member of the Trump campaign and/or transition team, I’d be terrified right now. Living under the specter of a criminal investigation is debilitating.

You do not know whom to trust, because you have no idea who might, or might not, be talking to the FBI. You have no idea if your emails are being read or your phones tapped. Everyone is a potential enemy and there is a general pall. Furthermore, this whole Russian investigation is not a minor issue, a foreign government messing with our election is serious stuff.

To protect yourself, you have to “lawyer up.” White House staffers and true believers on a campaign are often not high wage earners. Washington D.C. is not a cheap place to live and, if you work for the government, a second job is verboten. Lawyer fees for “white-collar” criminal defense attorneys are steep. In other words, whatever the truth is, the appointment of Mr. Mueller as special counsel is going to have a devastating affect on those living in “Trump world.”

This may have started as a “collusion” investigation. From what we can tell, it is already morphed into an “influence” investigation with Gen. Flynn (and also Paul Manafort) in the FBI’s sites. This is a big deal.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston County chief assistant district attorney and a former Miami prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions and to review former articles and frequently asked questions.

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