The most frightening news for Trump (if he was paying attention) is confirmation that Mueller will write out a report, even before his full investigation is complete, likely making the case that Trump has obstructed justice. That could then be made public by Deputy Attorney General Rod J. Rosenstein and used by Congress — in all likelihood only if Democrats win one or both chambers — to commence impeachment proceedings.
“I think the bigger news is that Mueller has decided to write a report on obstruction,” says former Justice spokesman Matt Miller. “Whether he would do so has been one of the big outstanding questions, since that is not what DOJ prosecutors usually do.” He continues, “That tells me two things: First, he must think there is some evidence of criminality or he probably wouldn’t be writing one. He would more likely just close up shop. Second, if he has told Trump’s lawyers about it, he has likely already have gotten some sort of green light from Rosenstein to either release it or send it to Congress. Hopefully that is the case — the pressure on Rosenstein will be immense if and when this report is ever written.”
If Trump truly has felt “relief” — as opposed to blustering — he is either not getting adequate legal advice, rejecting that advice or incapable of absorbing legal advice. It is one more indication that an interview with Mueller may prove catastrophic for Trump. Ethics guru Norman Eisen tells Right Turn, “I think the now departed John Dowd was right: Trump should take no great comfort from this. Many was the time that I had a client move from being a subject to a target.” He continues, “If I were representing the president, I would not let him testify because of the risk of him doing that to himself, and the risk of a false statement. Moreover, the report is unlikely to be flattering to Trump; just look at what [then-FBI Director James] Comey’s expressions about Hillary Clinton did to her.”
Trump you will recall was convinced at one time he was not under investigation. He even added that to his letter firing Comey. But of course, the firing of Comey set off a chain of events which in fact put him under investigation. Former prosecutor Renato Mariotti explained in a series of tweets: “As a practical matter, federal prosecutors typically don’t decide until late in an investigation whether they will charge a person who is under investigation. Usually prosecutors don’t make that judgement until they’ve interviewed witnesses and reviewed the relevant documents. … The prosecutor can just continue to collect evidence and make the decision to indict at a later time. That’s why any good federal criminal defense attorney knows that what really matters most is whether your client is a subject.”
This in turn brings us back to the president’s greatest peril — impeachment proceedings, which may include subpoenas for financial records (e.g., tax returns) he has insisted remain secret. Republicans have shown themselves entirely unwilling to confront Trump on the smallest matters (e.g., foreign emoluments) and so are highly unlikely to take impeachment seriously. By contrast, Democrats, if they get a damning report from Mueller and win the House, will almost certainly open hearings at least to determine if impeachment is appropriate. There should be no doubt that the midterms may turn on a single question: Should Trump be held accountable if he obstructed justice?