Trump Russia Probe

Special Counsel Robert Mueller is investigating possible ties between President Trump’s campaign and Russia’s government and may expand his inquiry to investigate the roles of the attorney general and deputy attorney general in the firing of FBI Director James Comey.

Associated Press — Evan Vucci, file

There is a lot we don’t know about Special Counsel Robert Mueller’s investigation into possible Russian attempts to influence the 2016 election. Most importantly, we don’t know who will be implicated and charged beyond the three men already indicted (Paul Manafort, Rick Gates and George Papadopolous). We don’t know how broad the investigation has become. And we certainly don’t know if President Trump will be implicated at all.

That doesn’t mean there’s nothing to observe, and what I see is the outline of a remarkable organization at work. The Mueller team is like a clock: it offers simple information to the public, but a lot of whirring gears and intricate machinery is hidden from view. While we don’t know much about these inner workings, there is much to consider from what we can see on the outside.

First, there is broad consensus that Mueller hired a remarkable team. He cherry-picked from the ranks of the Department of Justice and private firms to get people with singular experience and remarkable talent. For example, I have long told people that Michael Dreeben — a veteran DOJ hand who has argued more than 100 cases in the U.S. Supreme Court — is the best appellate lawyer I have ever seen. He was opposing counsel (working for the George W. Bush administration) in a series of sentencing cases I was involved in, and his talents were prodigious. When Mueller pulled him in, I knew he was hiring for talent rather than partisanship.

Moreover, Mueller has kept the team relatively lean. According to Politico, he now has 17 lawyers on board. Contrast that with Ken Starr’s investigation of Bill Clinton, which peaked at a staff of 225 including employees from the DOJ, people detailed from other agencies and outside consultant and advisers. The lean staffing has probably helped prevent leaks, too. The discipline shown by the Mueller team stands in sharp contrast to Trump’s squad, which has sometimes been fractious and even was caught loudly discussing strategy at an outside table at a DC restaurant adjacent to the New York Times office.

Second, the Mueller team seems to be playing chess three moves ahead. One aspect of that strategic thinking became clear in the last few months: They are working around the president’s pardon power by constructing their investigation in such a way that it cannot be foiled by clemency. For example, consider the way that they handled Trump campaign aide George Papadopoulos. He was arrested this past July for lying to the FBI and immediately began cooperating with Mueller. Rather than trumpeting this catch, they kept it very quiet; they bled him dry of information before giving him his deal and only recently unsealed the documents that revealed his plea. Pardoning him wasn’t even on the radar till it was too late. The investigators already had nearly everything of value that he might have to offer.

Similarly, the indictment of Paul Manafort reveals Mueller’s strategy. While the indictment lays out facts that would seem to support charges of tax fraud and tax evasion, those were not among the actual charges. That allows a way to foil a Trump presidential pardon: Mueller could, post-pardon, either go after those new charges or work with state authorities to bring them in state court, where they are unreachable by presidential clemency (which only applies to federal charges). When I was a federal prosecutor in Detroit, we used a similar technique against serial bank robbers. We (the feds) would take half the robberies to the grand jury and pursue the case to conviction (the sentence would usually be about the same as if we included all of the robberies). If something went wrong, we still had another shot with the remaining half, which could be pursued in federal court or sent to the state for prosecution.

Finally, the Mueller team seems to have one of the most essential prosecutorial virtues of all: patience. Often, there is public or political pressure to charge a lot of people quickly, but that can lead to weak cases and mistrials or acquittals. Patience allows the prosecution team to gradually build up cases and sequentially “flip” witnesses, assuring that there is plenty of evidence on each element of a crime before the public fight begins. Certainly, Mueller could have charged a broad group of defendants at once, perhaps even with cookie-cutter charges. That he declined to do so is a sign of experience and wisdom.

Most outcomes of the special counsel’s work are yet to be revealed. What is evident already, however, is the work of a skilled lawyer expertly using the tools of his trade. It is important to remember that such work often results in not charging people who are under public suspicion — and that can be justice, too.

A former federal prosecutor, Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas in Minnesota. He has advocated for sentencing and clemency policies rooted in principles of human dignity. He formerly served on the Baylor Law School faculty.