How White House Threats Condition Mueller’s Reality - Lawfare

How White House Threats Condition Mueller’s Reality - Lawfare
by Benjamin Wittes, Quinta Jurecic, Jane Chong

What does the world look like today if you’re Robert Mueller? 

You’ve got a huge, sprawling, immeasurably complicated job, and the President of the United States has just put you on notice of what you already have long suspected: You may not have much time.

A pair of stories published last night by the New York Timesand Washington Post announced that the White House is looking to “undercut” Mueller’s investigation and is “scouring” for information on potential conflicts of interest on the part of Mueller’s team. The stories describe a systematic effort to comb through the backgrounds of Mueller and his office in the hope of finding material damaging enough to merit firing Mueller, requesting the recusal of members of his team, or at the very least discrediting the independent investigation in the eyes of the public.

Inverting the Pyramid: In a normal complex criminal investigation, the prosecutor starts at the bottom of the organizational pyramid and works his or her way up. The prosecutor indicts the drug runners, flips them, goes for the middle managers, flips them, and continues to use each layer to go after the one above—eventually targeting the people at the very top.

A prosecutor investigating the President of the United States, who’s threatening in two ways to nuke the investigation, might not feel the luxury of working up from the bottom of the pyramid. Such an approach takes time, after all. The bottom of the pyramid involves a lot of people whom the president, unlike a crime boss, can pardon. Notwithstanding the fact that pardoned individuals can be compelled to testify, a broad pardon eliminates much of the prosecutor’s leverage in obtaining the truth—leverage that relies on the criminal jeopardy of the underlings. And quite uniquely among criminal investigative subjects in the federal system, the President can also fire his own prosecutor, meaning that time may not be an available commodity. In an environment in which Trump is openly toying with both of these steps, the prosecutor may be tempted to invert the pyramid and focus on presidential conduct first.