Mueller Investigation Strategy Includes Safeguards Against Presidential Obstruction

Robert Mueller about to speak into a mic.
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On a hotly anticipated day in which special counsel Robert Mueller will file sentencing recommendations against President Trump’s former attorney Michael Cohen and the president’s 2016 campaign chairman Paul Manafort, the president has launched a series of preemptive strikes in the court of public opinion with a twitter tirade against the Mueller investigation, as reported earlier by the Inquisitr. It is perhaps the president’s best recourse against Mueller, who has meticulously crafted an aggressive strategy during his investigation into possible collusion between the Trump campaign and the Russian government.

As reported by Vanity Fair, Mueller has potentially laid a clever perjury trap for President Trump, through former campaign manager Paul Manafort. In the plea agreement for Manafort’s alleged accomplice Rick Gates, Mueller includes the provision that “The defendant agrees not to reveal his cooperation, or any information derived therefrom, to any third party without prior consent of the Office.” Manafort’s agreement, however, contains no such restriction, possibly because Mueller wanted to test the relationship between Manafort and President Trump.

“The absence of that gag order is not an oversight,” says Katya Jestin, a former federal prosecutor. “This could be part of a larger strategic play by Mueller.”

As reported previously by the Inquisitr, the defense teams of many of Mueller’s targets are cooperating in crafting a collective defense against allegations made by the Mueller probe. The most significant of those defense agreements is between Trump and Manafort. Kevin Downing, the lead attorney for Manafort, almost immediately began sharing information about Mueller’s questions — and interests — with Rudy Giuliani and the rest of President Trump’s legal team.

Knowing that President Trump and Manafort were collaborating on a defense, and also suspecting that Manafort was lying to investigators, Mueller waited for President Trump to submit his written answers to the special counsel’s questions. Just a few days after receiving President Trump’s responses, Mueller suddenly invalidated Manafort’s plea deal — on the grounds that Manafort had lied to investigators “on a variety of subjects.” Thus, if President Trump has submitted answers to the special counsel based on what he was hearing from Manafort, he may have blundered into strengthening the case against him.

“Mueller built the plea agreement to permit Kevin Downing to continue to share information with Rudy Giuliani,” says Marcy Wheeler, a national security expert. “So in the eventuality Manafort lied and Mueller didn’t tell them what evidence they had that he was lying, then that would in a sense be negative reinforcement for Trump. He would think that he was going to get away with it, just like Manafort was.”

Manafort, regarded by many as the centerpiece of Mueller’s case, may by extension have laid an extensive perjury trap for others, as well. Giuliani recently admitted that the President’s legal counsel has over thirty defense cooperation agreements with targets of the Mueller investigation. Also, Mueller issued a number of subpoenas prior to the Manafort trial that ultimately were not used, which leaves a tremendous amount of information yet to be released.

Mueller has also, in a sense, kept a public record of his investigation through his court filings. As reported by FiveThirtyEight, Mueller’s filings have been much more detailed than required. While large sections of the filings for public record have been heavily redacted to protect “ongoing investigations,” Mueller has filed them under seal in federal court. This maneuver protects Mueller from potential manipulation by the Attorney General. The Attorney General has oversight over the Mueller investigation, and will have the final say on how much of Mueller’s final report is made public. The report may not be made public at all, according to Law & Crime.

President Trump has made moves to counter the Mueller probe through his recent appointments to the office of Attorney General. After firing Jeff Sessions just after the November elections, President Trump bypassed Deputy Attorney General Rod Bernstein — who appointed Robert Mueller as the special counsel — in favor of Acting Attorney General Matthew Whittaker, defying legal precedent in the process. The appointment of Whittaker, a vocal critic of the Mueller investigation, was seen by some critics as a transparent attempt to curtail the Mueller report. Facing intense backlash over Whittaker’s appointment, President Trump today appointed William Barr as Attorney General, though Barr is also a public critic of Mueller.

Mueller has seemed to anticipate these moves, and by filing extensive documents in federal court under seal, he has left open the possibility that other parties could petition a judge to unseal the filings at a later date. Thus, even if the Attorney General is able to shut down the investigation — or bury the final report — it can potentially be pieced back together as a matter of public record through Mueller’s filings.

Mueller has also diversified his investigation, allowing federal prosecutors to take on criminal activities related to the Russian collusion probe, as a sort of prosecutorial parachute, according to Law & Crime. Mueller is federally mandated, by the Justice Department, that direct cases brought by the special counsel would have to be prosecuted in federal court. Thus, Mueller’s transferring cases from one federally-mandated investigative body to another is allowable. The prosecution of Cohen is a prime example. Again, the release of information from cases prosecuted by various U.S. attorneys regarding various aspects of the Mueller probe allows for the public disclosure of the Mueller report through a collective.

An interesting development — as a potential deterrent to this strategy by Mueller — is a seemingly unrelated case that the Supreme Court is contemplating at the moment, as reported by CBS. In the case Gamble v The United States, a man prosecuted both in state court and federal court for a gun possession crime has asserted that the multiple prosecutions violates the Constitution’s double jeopardy clause. Supreme Court lawyer Tom Goldstein joked at an event in October that the case should be called “New York v Manafort”, suggesting that the ruling could prevent Mueller’s targets from being prosecuted in state court, thus giving the Attorney General more power over the investigation — and also keeping the possibility of a presidential pardon in play.

The cat-and-mouse game between the special counsel and the president continues, with Mueller’s perpetual silence standing in stark contrast to President Trump’s public comments. The next steps will potentially be revealed by Mueller’s filings in federal court today.