Two developments in the Russian collusion/obstruction investigation suggest we may be getting to a new and perilous stage in the investigation for President Trump:
The Wall Street Journal broke the news Thursday that special prosecutor Robert S. Mueller III had impaneled a grand jury in Washington:
The grand jury, which began its work in recent weeks, signals that Mr. Mueller’s inquiry will likely continue for months. Mr. Mueller is investigating Russia’s efforts to influence the 2016 election and whether President Donald Trump’s campaign or associates colluded with the Kremlin as part of that effort. …
Grand juries are powerful investigative tools that allow prosecutors to subpoena documents, put witnesses under oath and seek indictments, if there is evidence of a crime. Legal experts said that the decision by Mr. Mueller to impanel a grand jury suggests he believes he will need to subpoena records and take testimony from witnesses.
This should clear up any doubt as to whether this was “merely” an intelligence investigation; grand juries operate in the world of criminal wrongdoing. If Mueller finds evidence of financial crimes, perjury, lying to FBI investigators, obstruction of justice, witness intimidation or any other crimes related directly or not to Russia, he will in all likelihood get indictments. (There is something to the adage that a good prosecutor can get a grand jury to indict a ham sandwich.) Revealing the proceedings of a grand jury session is also a crime, so prosecutors will be prevented from legally sharing what went on.
One cannot stress enough the seriousness of the investigation. One or more witnesses or other people may refuse to produce documents; such matters ultimately go to judges, who can compel witnesses to produce records. Those who refuse risk going to jail. Efforts by the president to gum up the works by assertion of executive privilege, or efforts by witnesses to refuse answering on other grounds, will be tested in court; in order to compel testimony, the prosecutor may begin making “deals” with witnesses for their testimony.
“The most ominous for Trump is the reported broad scope of the review to include possible financial issues,” says former White House ethics counsel Norm Eisen. “Given Trump’s refusal to produce his tax returns, he hasn’t been subject to a true vet. He’s about to get one.” He adds, “If he tries to escape by firing Mueller, the firestorm will make the Watergate Saturday Night Massacre look petty. There is no guarantee of how it will all turn out — but Trump is surely resting less easy with this news.”
And that brings us to the second development: senators’ efforts to protect Mueller and ensure Trump does not fire him. The Lawfare blog explains: “Senators Christopher Coons (D-DE) and Thom Tillis (R-NC) have introduced legislation to provide for judicial review if Mueller is removed, and Senators Lindsey Graham (R-SC) and Cory Booker (D-NJ) have introduced a second bill that would force DOJ officials to seek pre-termination review.” Meanwhile, another option remains:
As long as the [special counsel] regulation remains in place, the executive branch is legally obligated to abide by it, including the president. That is one of the central principles of the momentous Supreme Court decision, United States v. Nixon (1974), which upheld President Nixon’s obligation to turn over the Watergate tapes. But if Congress is concerned that the president might order this regulation revoked, one way to protect against that would simply be to turn the regulation into a law (there are policy advantages to leaving it as a regulation, since appropriate changes would be easier to make, but Congress might conclude those advantages are outweighed in present circumstances).
That would be constitutional, not a reversion to the independent-counsel law as some might claim.
There certainly is more reason now for Republicans to agree to one of these options than there was months or even weeks ago. For one thing, as noted above, a grand jury may precipitate a face-off with the president, tempting him to try to get rid of Mueller. The risk to Mueller and the need to preempt such action are much more acute now. Moreover, evidence of the June 2016 meeting at which Donald Trump Jr., then-campaign chief Paul Manafort and Jared Kushner met with Russians — and about which the president helped draft an untruthful account — has come to light. There is now direct evidence of Russian attempts to help the Trump campaign. And from a political perspective, GOP members of Congress are increasingly comfortable (eager, even!) about distancing themselves from Trump. Whether they want to save Trump from himself (the temptation to fire Mueller) or are queasy that there is something to be found, one can imagine — for the first time, I think — a GOP effort to protect Mueller and see this through to its conclusion.
We are in new — and for the White House, dangerous — territory.