'Real Peril:' After a Flurry of Activity, Where Does the Mueller Investigation Now Stand?

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Posted: Dec 10, 2018 10:25 AM
'Real Peril:' After a Flurry of Activity, Where Does the Mueller Investigation Now Stand?

Following a flurry of activity last week, it appears as though various threads of the special counsel investigation are advancing to final stages.  It's impossible to know where things stand within the opaque broader context, of course -- but to revisit my previous analogy, we're getting more glimpses of more cards that Robert Mueller and his crew are holding.  A few thoughts:

(1) The generous plea deal awarded to Gen. Michael Flynn, in which prosecutors recommend that Flynn spend no time in jail, may be the most significant breadcrumb we've seen.  Here's how USA Today described Mueller's bottom line vis-a-vis Flynn:

"Given the defendant’s substantial assistance and other considerations set forth below, a sentence at the low end of the guideline range—including a sentence that does not impose a term of incarceration—is appropriate and warranted," Mueller's team said in a heavily-redacted memorandum prepared in advance of Flynn's sentencing later this month. The court documents indicated that Flynn had met with investigators 19 times during the past year in which he has been cooperating with Mueller's team on multiple investigations, including the special counsel's inquiry into possible coordination between the Trump campaign and Russia. References to other investigations were redacted from the court documents, along with details about how Flynn's cooperation had contributed to the probes.

Flynn has cooperated extensively on multiple strands of Mueller's investigation, including the central pillar on Russian electoral interference.  We cannot be sure what Flynn has provided to the special counsel team substantively, but his contributions have clearly been viewed as sufficiently useful and satisfying as to win him an attractive deal and fairly effusive praise in the prosecution's court filings.  The critical, and yet unknown, question is whether Flynn has passed anything along that could jeopardize the presidency.

(2) Longtime Trump attorney, confidante and "fixer" Michael Cohen was not so fortunate, with Mueller's team recommending that he be slapped with "substantial" prison time for his sundry crimes and chronic dishonesty.  This is an unsparing passage from court documents filed on Friday:  


Cohen is facing justice for myriad offenses, some of which have absolutely nothing to do with Donald Trump or Russia.  But there are several Russia angles, too, including Cohen's perjury about a real estate project in Moscow that never went through.  And then, of course, there are the 'hush money' pay-offs to two adult entertainers, including Stormy Daniels.  Federal prosecutors (remember, Mueller punted this case over to non-special counsel colleagues after running across the issue over the course of his work) have made clear that they believe these payments constituted unlawful and unreported election-related spending.  This observation is from the former acting Solicitor General of the United States:


The felony here is a violation of federal election law, under which the candidate basically donated to his own campaign without disclosing the expenditure.  This isn't good news for Team Trump, needless to say, but it's not quite as cut-and-dried as it may seem.  In order to be convicted (setting aside the debate over whether a sitting president can even be indicted), it would need to be proven that Trump knowingly intended to break the law, which could be a real stretch.  Off-the-books payments to keep mistresses quiet very well could have been a regular staple of Trump's adult existence, so there's a very plausible case to be made that it never even occurred to him that the 2016 actions would be "campaign" contributions.  Also recall that a jury declined to convict former Vice Presidential nominee John Edwards of a somewhat similar scheme, and the Obama Justice Department decided not to attempt a retrial.  Nevertheless, former federal prosecutor Andy McCarthy, a conservative critic of the Mueller probe, believes the president is in some real legal danger and could well face an indictment on this front:


(3) Could Cohen still really hurt Trump in other ways?  As someone with deep knowledge of Trumpworld's seedier elements, heaven only knows what sort of information Cohen was privy to.  Since angrily turning on Trump, Cohen has claimed that Trump did, in fact, know about the infamous Trump Tower meeting (which I've described as apparent attempted collusion) with a Russian attorney in the summer of 2016, despite assertions to the contrary.  Does he have proof?  We shall see, but it sure looks like Trump attorney Rudy Giuliani is laying the groundwork to respond to an accusation of perjury from Mueller on this point:

Special counsel Robert Mueller’s team has made clear to Paul Manafort’s attorneys that they believe the former Trump campaign chair is lying to them about President Donald Trump, according to the President’s attorney Rudy Giuliani. “In the questioning of Manafort, they did tell them at the time that they believed he was lying about certain things related to us that he’s not lying about,” Giuliani told CNN…According to Giuliani, investigators told Manafort they don’t believe that the President did not know about the 2016 Trump Tower meeting that Manafort attended with Donald Trump Jr., Jared Kushner and a Russian attorney who had promised dirt on Democratic presidential candidate Hillary Clinton.

"It’s not perjury unless POTUS claimed *under oath* that he didn’t know about the meeting at the time," Allahpundit writes. "But, er, according to reports last week, he did claim under oath in his written answers to Mueller that he didn’t know about the meeting. If the special counsel has evidence that he did know, then Trump has a major problem." He sure would.  Based on what we know at this stage, I'm not at all convinced that Trump directing payments to a porn star would rise to the level of an impeachable offense.  Lying to Mueller about a meeting with Russians?  That would be getting warmer.

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(4) Paul Manafort is in even more trouble:


Items four and five are of particular interest.  What separate DOJ investigation?  And which officials, in regards to what?

(5) In light of everything stated above, this presidential tweet borders on delusional:


That's simply not true.  I'm being very careful to follow the available evidence, and I still think that Trump critics salivating over Friday's swirl of news may be setting themselves up for disappointment.  We do not have nearly enough evidence to definitively conclude one way or the other whether the president himself is in any more real danger today than he appeared to be a week or two ago.  Too many unanswered questions remain about what, if anything, Mueller's team may have.  But the notion that all of this is comprehensively exculpatory for Trump looks like a wildly-premature, and even laughable, declaration of wishful thinking.  On that point, I'll leave you with David French's examination of the Cohen documents and the prospects for the I-Word:


By the way, some Democrats may be in Mueller's crosshairs, too.  And I still don't believe some of James Comey's ongoing and implausible claims -- although it's quite interesting to see him praising the nomination of an Attorney General who publicly applauded Comey's own firing.  We live in interesting times.