No law forces Mueller to back off before midterms
By RANDALL D. ELIASON | Special To The Washington Post | Published: September 3, 2018
It’s just over 60 days until the midterm elections. As we approach that mark, there’s increasing chatter about its potential effect on the investigation by special counsel Robert Mueller. Some claim Justice Department policy dictates Mueller not take any major new steps during this time. The truth is much less clear.
There is indeed a Justice Department policy against taking significant prosecutorial actions in the weeks leading up to an election if those actions might influence the election’s outcome. But this is not a formal rule written down anywhere, nor has it been mandated by a court or by Congress. It’s variously referred to as a “norm,” “tradition” or “custom” within the department. And there’s not always agreement about what exactly the policy means or when it should apply.
President Donald Trump’s legal team wants to portray this norm as an ironclad rule. Trump’s attorney Rudy Giuliani has suggested that if Mueller does anything significant during this period, he will betray himself as a hopeless partisan defying Justice Department policy. Indeed, Giuliani has sought to transform the policy into a sort of statute of limitations, asserting that Mueller must not merely stand down for two months but must wrap up his entire investigation soon after Labor Day.
Giuliani’s claims aside, one thing that is clear is that the policy is about timing, not outcomes. It would merely delay any new public actions until after the election. During that time, Mueller and his team could continue to work outside of public view to prepare whatever they have coming next.
It’s also clear that choosing when to apply the policy is a matter of discretion and judgment, one that requires an evaluation of any potential impact on the coming election. And there’s good reason to doubt whether the policy actually has much force with respect to the Mueller investigation.
First, the policy is most critical when the Justice Department action directly relates to someone who is a candidate in the upcoming election. That’s not the case here; the president is not on the ballot, nor are any of the other people who could potentially be in Mueller’s crosshairs.
The concerns underlying the policy also are heightened when the Justice Department actions would be a surprise, an unexpected bombshell that reshapes the political landscape. But the details of Mueller’s investigation are widely known, and any potential implications are probably baked into the election already. Short of indicting the president himself, it’s hard to imagine much Mueller could do that would dramatically alter the current picture.
Couple that with the fact that Paul Manafort’s second trial begins in a few weeks and could carry over into October. That guarantees that news about Trump, Manafort and the Mueller investigation will continue to be front and center leading up to the election, regardless of other steps Mueller might take.
Finally, the concerns about Justice Department action should be most pronounced when there is a risk the prosecution could seem politically motivated; if a prosecutor from one party could appear to be trying to take down a politician from the other. But despite the president’s repeated tweets about “angry Democrats” investigating him, Mueller is a Republican, and any steps he takes will be approved by Trump’s own Republican deputy attorney general.
For all these reasons, Mueller will be on solid ground if he decides just to proceed on course. But by claiming this discretionary norm is actually a hard and fast rule, Trump’s legal team is playing a political game they can’t really lose. If Mueller delays, they succeed in minimizing any additional bad news before the midterms. If Mueller proceeds with some new action, Trump’s team will claim he is flouting long-standing Justice Department policy — further evidence of an illegitimate “witch hunt.”
Mueller, on the other hand, is in something of a no-win situation. Either course — taking new action or holding back and depriving the electorate of additional information — may be criticized by partisans as potentially affecting the election. Given that reality, he may conclude the wisest course is simply to lay low for the next two months to avoid giving the president’s team additional ammunition. But if he does, it will be because he chooses to, not because it is required — and in the end all it means is a slight delay. Come Nov. 7, all bets are off.
Randall D. Eliason teaches white-collar criminal law at George Washington University Law School.