Compared to some previous probes, this one is in its infancy.
Last Thursday marked the one-year anniversary of the appointment of special counsel Robert S. Mueller III. The milestone has emboldened White House critics of the probe to declare, as Vice President Mike Pence did on NBC News, that “it is time to wrap it up.”
Never mind that the Mueller investigation is, comparatively, in its infancy. The Whitewater probe of Bill and Hillary Clinton, for example, began in 1994 and ended more than six years later.
Mueller’s 12 months of work have turned up 20 indictments and five guilty pleas, including prominent senior members of the campaign and administration, and that doesn’t take into account the wealth of information Mueller has yet to make public.
Some Republicans suggest that public opinion is shifting, that Trump’s refrain of “witch hunt” may be gaining purchase. As the president’s latest mouthpiece Rudolph W. Giuliani crowed, “We’ve gone from defense to offense.”
“Wrap it up” advocates can point to a slight uptick in Trump’s approval ratings and a downtick in public support for the investigation. They seem to think that if Mueller doesn’t close up shop soon in response to political pressure, Trump’s position is strong enough that he could put an end to it, perhaps by firing the special counsel or the special counsel’s boss, Deputy Attorney General Rod Rosenstein, and weather any storm the move occasions.
They’re wrong. The probe isn’t going to end soon, simply or painlessly. Anyone paying attention over the past year knows Mueller will not yield to political pressure. So to “wrap it up,” Trump would have to make a move. But will he?
The president and his lawyers are strategizing about whether he will agree to be interviewed by Mueller, either voluntarily or under subpoena. If he were to refuse, as the current swing of the pendulum suggests, and then try to end the probe, he would only seem more guilty and undermine his support even among Republicans.
If his refusal were to lead, as expected, to a court battle, we would expect the Supreme Court to settle the issue. Any move by Trump to pre-empt it would again only undermine his credibility.
In addition, the president and his circle are well aware of how fast the midterm election is approaching and what effect an attempt to fire Mueller could have on the outcome. They want to avoid any action that would help the Democrats flip the House. Such a shift would change every calculation, not least because a Democratic majority could move to try to impeach the president early next year.
Of course, Trump may calculate that he could get away with firing Mueller now, if he moved quickly and the Republican leadership rallied to his side. But it is equally possible that Congress would respond with legislation to reinstate Mueller. Again, the field of battle would shift to the courts.
Most importantly, even a successful ouster of Mueller would not derail the investigation at this point. Too much evidence has been gathered, and too many prosecutors, who have surely considered and planned for the contingency, stand ready to carry on.
The strength of all that evidence, the careful work done thus far, and the indictments already filed are the special counsel’s protection against “witch hunt” tweets and protestations that the investigation is already over with nothing to show for it. In the course of the past year, we’ve learned not to underestimate what Mueller knows and what bombshell he may have prepared.
The “wrap it up” crowd is indulging in wishful thinking. The first anniversary of the Mueller investigation is unlikely to be the last.
Harry Litman, a former U.S. attorney and deputy assistant attorney general, teaches constitutional law at the University of California San Diego. Reach him at email@example.com. This op-ed was distributed by Tribune News Service.