“When Comey closed [the case] in July – although I think it was a complete whitewash – I’d like to have them do that for us,” the former New York mayor said.
Legal experts and former prosecutors say that, while Mueller is surely aware of the ticking clock, and especially the fast-approaching midterm elections, he isn’t likely to be moved by pressure from the Trump team.
President Donald Trump’s attorney has an unlikely new role model for special counsel Robert Mueller: James Comey.
Frustrated by the open-ended nature of Mueller’s Russia probe, which hits its one-year mark on Thursday, Rudy Giuliani says Mueller should follow the example Comey set in 2016, when the then-FBI director investigated – and then publicly exonerated – Hillary Clinton for her use of a private email server.
“When Comey closed [the case] in July – although I think it was a complete whitewash – I’d like to have them do that for us,” the former New York mayor said.
Never mind that Comey later re-opened the case days before the 2016 election, after the discovery of new evidence, possibly costing Clinton the election. Or that Giuliani calls Comey “a major phony” and “a little baby.”
Giuliani’s point, echoed by many conservatives, is that Mueller’s year-old investigation has run too long and is causing Trump unacceptable political damage.
“Come on! They’ve had a whole year,” the Trump lawyer said in a recent interview. “We’re going to raise the pressure to try to get this thing over with. It’s gone on long enough,” he added.
“In the interest of the country, I think it’s time to wrap it up,” Vice President Mike Pence told NBC last week.
Legal experts and former prosecutors say that, while Mueller is surely aware of the ticking clock, and especially the fast-approaching midterm elections, he isn’t likely to be moved by pressure from the Trump team.
“When cases are ripe to be brought, he will bring them,” said Peter Zeidenberg, a former federal prosecutor who served as deputy to special counsel Patrick Fitzgerald during the Bush-era Valerie Plame CIA leak investigation. “He won’t be doing any press conferences, of course. So no Comey-like scenarios. He will let his pleadings do the talking for him.”
Even after 12 months on the job, Mueller appears far from finishing his work. The first of two criminal trials for former Trump campaign manager Paul Manafort is scheduled to begin in July, and other parts of his probe look to be expanding.
Mueller’s office, which declined comment for this story, has maintained a strict poker face throughout its year on the job. But Comey told NBC’s Meet the Press last month that Mueller was “definitely attentive to the [election] calendar, and like all good prosecutors, wants to finish as quickly as he can.”
In a separate interview in April with Axios, Comey explained that Mueller is under no specific Justice Department regulation for how to handle politically sensitive decisions, such as further indictments of Trump associates, during an election season. Instead, there are only unwritten DOJ “norms” that say prosecutors “avoid any action in the runup to an election that might have an impact – if you can.”
Comey also noted that a 2012 memo penned by Attorney General Eric Holder instructing employees that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges” isn’t a formal DOJ rule either.
While Trump lawyers have repeatedly called on Mueller to publicly exonerate the president, Republicans and Democrats alike believe Comey blundered when he did so in Clinton’s case. Those critics include Deputy Attorney General Rod Rosenstein, who is now Mueller’s direct supervisor.
In his own three-page memo released by the White House last May, Rosenstein concluded that Comey broke “longstanding principle” by holding his July 2016 press conference to announce Clinton’s case would be closed without a prosecution.
“The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial,” Rosenstein wrote. “It is a textbook example of what federal prosecutors and agents are taught not to do.”
Another critic was Trump himself, who has justified his decision to fire Comey last May by pointing to the way he handled the Clinton email scandal.
Few people believe Mueller would look to Comey’s inquiry into Clinton as a model, for multiple reasons that include the vastly different nature of the cases. And while Comey was operating in the shadow of the 2016 election, which would decide whether Clinton or Trump was headed to the White House, Mueller’s immediate challenge is keeping himself out of a political campaign where the balance of power in Congress is at stake.
Analysts also say it is a mistake to say that Mueller’s probe has been dragging.
After inheriting significant FBI and DOJ investigative work conducted before his appointment, Mueller notched his first criminal indictments – against Manafort and his deputy Rick Gates – last October, about five months after taking the job. By comparison, in the eight other major independent counsel cases dating to Jimmy Carter’s administration where indictments were filed in connection with alleged executive branch misconduct, the first criminal charges took an average of 17 months to file.
History also suggests Mueller shouldn’t expect to wrap up anytime soon.
The 21 major special counsel probes in the post-Watergate era lasted an average of three-and-a-half years from the appointment of an independent counsel to its conclusion,which in most cases involved the completion or publication of a final report, according to a POLITICO analysis.
There are outliers, like the 10-plus years that it took from initial appointment to public release of a 2006 report about President Bill Clinton’s Housing and Urban Development Secretary, Henry Cisneros. Or the more than eight years and four independent counsels – most notably Kenneth Starr – who handled everything from the probe into the Clintons’ Whitewater land deal to the Democratic president’s extramarital affairs.
Giuliani bristled at the idea that the Mueller probe could last beyond the 2018 midterms, let alone go on for several years more.
“I think that’d be absurd,” he told POLITICO. “If we’re talking about the public having some degree of toleration for it now that’d switch very quickly” if the investigation extended beyond this year.
Several law enforcement experts said Mueller simply can’t let the complaints about his pace affect his work.
“Mueller and his people don’t want to drag this out any more than anyone else. They have lives to get back to,” said Samuel Buell, a former federal prosecutor and Duke University law professor. “So I think he is just moving forward as quickly as the evidence, and running everything to ground meticulously, allows. That’s what sets the agenda, not the political calendar.”
Elizabeth de la Vega, a former assistant U.S. attorney from the Northern District of California, said Mueller’s probe was unlikely to shutter before the mid-terms because of any political calculus.
“Mueller and his team are engaged in one of the most consequential investigations ever conducted in this country,” she said. “Regardless of what they do, or when they do it, they will be attacked politically. And the truth is, it’s almost always election season in this country.”
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