Mueller Investigation Done – But Expect Legal Fireworks


Yogi Berra famously quipped “It ain’t over ‘til it’s over.”  Special Counsel Robert Mueller has closed his 22-month Russia Investigation, no further indictments. The long nightmare is over, right?  Do not count on it.  National Democrat leaders – and the media – are upset.   

Democrats are in political disarray, showing signs of emotional distress.  This was not the ending they wanted.  The Mueller investigation was supposed to prove collusion, obstruction, “high crimes and misdemeanors,” impeachment, delegitimize Trump’s win, vindicate them.  None of that happened.

The disappointment is palpable, cymbals crashing – but no sound.  House Intelligence Committee chair and visceral anti-Trump critic Adam Schiff (D-CA) finds it unfathomable.  Despite Mueller and Barr following the law, Schiff swears to stop them from trying to “bury any part of this report” and vows he will “take it to court.”  No doubt, he will.

Meanwhile, House Oversight Committee Chair Elijah Cummings (D-MD) offered this tweet:

Surely, Cummings will deploy subpoena power.

House Speaker Nancy Pelosi says she will not take any “highly classified” briefing – if one is offered – on this report, wants it all released – presumably along with classified material, private information, names, witnesses, testimony of innocents, anything that will serve as fodder for 2020.  Ditto Senate Majority Leader Chuck Schumer, who says releasing the “full report” is “imperative.” 

Many media outlets are on the same track. MSNBC’s Chris Matthews fumes no criminal charges are falling on President Trump or “henchmen,” asking “how could this happen?”  HBO’s Bill Maher declares “I don’t need the Mueller report to know he’s a traitor,” and CNN’s Jim Acosta complains the White House is filled with “glee” – not so much Acosta.

Watch closely.  This is not over.  Democrats will probably demand release of the un-redacted Mueller report, just to see what is in it – although with no legal right to see it.  They may cherry-pick that document for some vindication of their anti-Trump stance.  What else can they do?

They are likely to then seek grand jury testimony and documents, despite the Constitution’s reliance on grand juries and a clear legal tradition of preserving secrecy.  They will push more partisan hearings on Russia collusion, even after two-years and $30 million of Mueller. 

They can be expected to go to court for the secret grand jury material, despite the profound wrongness of that move.  They would – in that case – be willing to unravel America’s grand jury process for their immediate political purposes.  The goal would be a fishing expedition. 

Of course, they will fret, fume and claim congressional oversight requires piercing grand jury secrecy, despite 230 years of contrary history, privacy rights of witnesses and jurors, prerogatives of the Justice Department and Separation of Powers.  What else can they do?

They can ask a judge to put aside Federal Rule of Criminal Procedure 6(e), which says we “must not disclose a matter occurring before the grand jury.” Likely, they will argue that Congress is special, that these are “special circumstances.”  They will then claim that their congressional hearings are “judicial proceedings,” in order to slide into a formal exception to the rule.  Only, congressional hearings are not “judicial proceedings.”  In fact, there are no articles of impeachment (the only adjudicative role Congress has under the Constitution), no basis for them, and Separation of Powers distinguishes congressional from judicial actions.

Next, they will probably try a clever slight-of-hand.  Grand jury secrecy is challenged on the basis of a suspicious indictment.  Here, there is no new indictment.  In fact, we have the reverse – nothing.  Congress wanted what Mueller denied them, a basis for impeachment.  But they will probably still try to breach the secrecy of the grand jury.

Congressional Democrats may even jump the wire, ignore prevailing law.  They may try redefining grand jury “matters” to be, say, just testimony.  Then they will go after documents, witnesses, juror identities, targets, subjects, dates, and names.  Just watch.  In short, for national Democrats, all the chips were on this square.  There is too much at stake, too many egos in play, to simply accept the Mueller Report and move on.

Failing their assertions of oversight, statutory exception, slight-of-hand and term redefinition, Democrats will look for a sympathetic DC federal judge.  They will want one willing to make-up an exception for them.  Interestingly, a case is before the DC Court of Appeals right now which involves piercing grand jury secrecy – for matters decades old now.  Even there, recent oral arguments seem to tip away from the position Democrats want – so the appellate route would probably box them out, even before they got to the Supreme Court.

In the end, Democrats are furious, fixated and flummoxed.  This was not the unhappy ending they wanted.  Count on attempts to subpoena grand jury witnesses – notably, despite clear laws saying grand jury witnesses are not “compelled to disclose information … in separate proceedings,” even if the subpoenas come from Congress.

As the non-partisan Congressional Research Service has observed:  “Although Congress’s powers to obtain information for legitimate legislative purposes is broad, it is not limitless.” So, if the Democrats were smart – they would pivot away from Russia and over to issues. Average Americans crave normalcy – and deserve more of it.  To paraphrase Yogi:  It ain’t over, but it certainly should be.

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