Mueller persists despite Trump team’s call for closure
Special Counsel Robert Mueller’s investigation should have just gone out of business — or at least into a two-month deep freeze — if you take Rudy Giuliani’s word for it.
Giuliani, President Donald Trump’s lawyer, has maintained for weeks that Saturday, Sept. 1, was a deadline under Justice Department guidelines for Mueller to finish his Russia probe to avoid improperly affecting the midterm elections on Nov. 6. “I always thought that was the day to make some decision,” the former New York mayor said in an interview.
Mueller has responded to Giuliani’s ultimatums with the public silence he’s maintained ever since he was named in May 2017 to lead the probe into Russian interference in the 2016 presidential election. But there’s no indication that the special counsel is going to abide by Giuliani’s clock, and there’s no law or clear policy requiring him to do so.
“The whole idea that there’s this magic deadline is ridiculous,” said Mimi Rocah, a former federal prosecutor for the U.S. attorney’s office in the Southern District of New York.
A request to interview Trump from here on, Giuliani said, would clearly be out-of-bounds, a stance that could force Mueller to subpoena the president if he wants to question him.
“If he subpoenas us he sets off a legal battle right before the election,” he said. “I don’t think he is going to do that.”
The weeks ahead could prove a pivotal test of Trump’s patience with Mueller – and with Attorney General Jeff Sessions. Mueller was appointed after Sessions recused himself from the investigation, a move that Trump said was weak and left him unprotected.
In an interview Thursday with Bloomberg News, Trump said Sessions’s job is safe at least until after the November election. But he blasted the attorney general for failing to rein in what he called Mueller’s “illegal investigation.”
Mueller is expected to thread a needle in the coming weeks, pushing ahead with investigative activities that he deems necessary while following a Justice Department policy that says overt acts aimed at influencing an election must be avoided.
At the very least, Mueller’s team is set to open its second-round prosecution against Paul Manafort, Trump’s already convicted former campaign chairman, later this month in Washington. And there’s no bar on bringing new indictments, which by Justice Department practice are supposed to be issued whenever they’re ready.
While prosecutors might hold off on taking public action against a candidate who’s on the ballot as election day approaches, they can be less cautious when dealing with someone who isn’t up for election – such as Trump, said Rocah, the former prosecutor who’s now a distinguished fellow in criminal justice at Pace Law School.
“With respect to the Mueller probe, I don’t think we’re talking about anybody who’s going to be on the ballot,” she said. “It’s not an absolute line in a way that they’re making it out to be.”
The U.S. Attorneys’ Manual prohibits department personnel from using their official authority or influence to interfere with or affect the result of an election. It also requires prosecutors to consult with the department’s Public Integrity Section of the Criminal Division on major investigative steps.
In 2012, Attorney General Eric Holder issued a binding policy memo on election-year activities that said “prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election.”
Justice Department officials are currently reviewing whether the policy should be updated, but no decisions have been made, according to two people with knowledge of the matter who asked not to be identified. If the policy were changed, it would be part of a broader update of the manual, one of the people said.
A July report by the Justice Department’s inspector general cited varying interpretations of the policy’s requirements. The report was a review of how the department and the FBI handled the 2016 investigation into Hillary Clinton’s use of a private email server. Former FBI Director Jim Comey drew bipartisan criticism for his pronouncements on the investigation, including informing Congress that he was reopening it just days before the presidential election.
“Several department officials described a general principle of avoiding interference in elections rather than a specific time period before an election during which overt investigative steps are prohibited,” according to the report.
Ray Hulser, a deputy assistant attorney general in the Criminal Division, told the inspector general that officials previously considered codifying a 60-day rule, but rejected the approach as unworkable.
Hulser told the inspector general that prosecutors should look to the needs of their case and that significant investigative steps should be taken when a case is ready, not earlier or later, according to the report.