Not long ago I wrote
that the danger President Trump faces from the various investigations into the Trump-Russia matter had changed dramatically in recent weeks. Now, in just the last few days, the situation has changed even more. In five ways:
1. The Mueller office: Investigative arm of the House
The big news in the Trump-Russia affair this week is the report, in the Washington Post, that special counsel Robert Mueller is investigating the president for possible obstruction of justice. The possibility of Trump facing legal jeopardy raises the question that has been part of every big Washington scandal involving the White House: Can a sitting president be indicted? The generally agreed-upon answer is no; impeachment is the constitutional remedy when presidential misconduct rises above a certain level. That is what would happen with Trump, if it came to that.
So what is Mueller doing, as far as the president himself is concerned? The special counsel is known to be investigating a number of figures around Trump for possible charges not related to the 2016 election. Those figures could certainly be indicted if the evidence warrants. But as far as the investigation into alleged Trump obstruction is concerned, Mueller's work will end up not in an indictment but in the House of Representatives. The House is constitutionally charged with originating articles of impeachment. But it does not have the investigative powers of the Justice Department and, if impeachment is on the table, will rely on the evidence Mueller gathers. What it chooses to do will of course depend on which party controls the House when Mueller finishes his work. In the case of Bill Clinton's impeachment, the independent counsel collected evidence against the president and then handed that evidence over to the Republican-controlled House, which voted to impeach the president.
There's no way to know whether the Trump affair will take that course. But that is what Mueller will do, if he has evidence that incriminates the president. And that makes his office, for the purposes of Donald Trump specifically, not a prosecutor's office but the investigative arm of the House.
2. Mueller's team of killers vs. Trump's amateurs?
On Thursday a Republican lawyer who supports the president and has experience in government emailed an article he had read about the team of prosecutors Mueller is assembling. "This ain't good," he headlined the email, which went on to discuss the impressive talents of Mueller hires Michael Dreeben, Andrew Weissmann, James Quarles, Jeannie Rhee, and Aaron Zebley.
Contrast that, he said in a later conversation, to the Trump team, led by Trump personal lawyer Marc Kasowitz and including partner Michael Bowe and Washington legal veteran Jay Sekulow. "I look at this team and think this is a joke!" the lawyer said. "What are they thinking? Jay Sekulow is going to talk 'em to death?"
The reaction is not unusual. As far as experience in criminal prosecutions is concerned -- the kind of experience that specifically relates to the issues in the Trump-Russia case -- the Mueller team has a huge advantage over the Trump team. (On the other hand, it's also true that Sekulow has argued before the Supreme Court a dozen times and played a role in several major cases, plus the Kasowitz law firm has a lot of lawyers to call on.) Trump has gotten plenty of advice to hire a big-name Washington scandal attorney, but he has not done so, either because they wouldn't work for him or they wouldn't work for him under the conditions he set. In any event, the coming legal fight could be asymmetrical warfare.