When it comes to news from the office of the special counsel, it has been a quiet couple of months. It appears Robert Mueller has been abiding by the unwritten Justice Department policy of avoiding significant moves in political cases during the two months leading up to an election. Other events, such as the confirmation hearings for Supreme Court Justice Brett Kavanaugh, have consumed the public’s attention. But after the election on Tuesday, the Mueller investigation may once again take center stage.
Of course, the lull in public action doesn’t mean Mueller and his team have been sitting on their hands. But because grand-jury investigations are secret, little is known about what might be happening. The press and public are left trying to glean information from witnesses who have testified or from obscure court-docket entries with titles like “In re Sealed Case.” But with the election behind us, we soon may be able to rely on more than just speculation.
The Mueller investigation has two areas of primary focus: Russian interference with the 2016 election and possible involvement of members of the Trump campaign; and potential obstruction of justice by the president through such actions as firing then-FBI Director James Comey. What news there has been in recent weeks has focused on the Russia conspiracy angle, and in particular on former Trump adviser Roger Stone. Mueller’s investigators reportedly have interviewed a number of witnesses concerning whether Stone may have had advance notice of, or perhaps even direct involvement in, the strategically timed release of stolen Democratic e-mails in the final weeks of the 2016 presidential campaign. If Stone was involved, it could just be sleazy politics — or it could open him up to charges such as conspiracy to defraud the United States through illegally influencing the election.
Stone certainly is not the only one potentially in Mueller’s cross hairs; A number of other senior campaign officials still could end up implicated in a conspiracy with Russians attempting to tip the election to Donald Trump. That could lead to more indictments, or Mueller could conclude that what he has found does not merit prosecution. The end result could be a report to Deputy Attorney General Rod Rosenstein rather than criminal charges.
The obstruction-of-justice front appears less active. It seems Mueller has it largely wrapped up, with the significant exception of any testimony by the president himself. Because proving corrupt intent would be the key to an obstruction case, evidence regarding the president’s state of mind is critical. It would be helpful to hear his version of events — although it is certainly not required.
Whether Trump will agree to testify at all is still unresolved. It appears likely he will submit written answers to questions instead. Mueller would then have to decide whether to accept that or seek to subpoena the president. There could be significant legal battles ahead over these issues.
There are collateral disputes that could re-emerge as well. For example, there were allegations that individuals including Attorney General Jeff Sessions and Trump son-in-law Jared Kushner may have initially concealed contacts with Russians when applying for a security clearance. There also have been allegations that witnesses including Donald Trump Jr. may have provided false information to Congress when testifying about foreign contacts with the campaign. Crimes including perjury and false statements are potentially implicated by such controversies.
Finally, there are proceedings beyond the Mueller investigation that also may heat up after the election. There is the separate ongoing federal criminal investigation in the Southern District of New York that led to the guilty plea and cooperation of former Trump attorney Michael Cohen. That investigation could result in criminal charges against those high up in the Trump Organization or against the corporation itself. And if the U.S. House changes hands, congressional committees under the leadership of Democrats — who will not hesitate to use their subpoena power — will investigate anew matters including Russian interference with the election.
Mueller has been at this for only about a year and a half. That’s not so long as these investigations go, yet he has already produced substantial results. There are a lot of unresolved issues still on his plate. It has been a quiet couple of months, but that is almost certainly about to change. Buckle up.
Randall D. Eliason teaches white-collar criminal law at George Washington University Law School. He wrote this article for the Washington Post.