How Mueller Can Protect the Investigation—Even if He Is Fired
President Donald Trump has been hinting that he might try to fire Robert Mueller, the special counsel investigating possible criminal wrongdoing related to Russian election interference and matters related to it, such as the firing of former FBI director James Comey. As he put it last Monday when asked about his plans for Mueller, “We’ll see what happens. Many people have said, ‘you should fire him.’”
Although Trump claims he can fire Mueller directly, many legal scholars disagree. They contend that a special counsel can only be subject to firing for a valid legal reason by the attorney general, and since Jeff Sessions has recused himself from the investigation, Mueller’s fate would fall to Deputy Attorney General Rod Rosenstein. But even on this understanding, Trump might pressure Rosenstein into sacking Mueller by threatening to fire Rosenstein himself. Or he might simply replace Rosenstein with a more compliant supervising attorney. If Mueller is removed and his investigation thwarted, the public might never learn what misconduct, if any, was uncovered by the special counsel’s probe.
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Fortunately, while he retains his position, Mueller has a powerful tool at his disposal: The “sealed” or secret indictment. If Mueller indeed determines that he has a strong case against Trump, a secret indictment returned by a grand jury will help protect the integrity of his investigation even if he is fired, while also avoiding the risk of provoking Trump to try to further impede the probe.
Sealed indictments are routinely employed by federal prosecutors in sensitive investigations, particularly when a public indictment might have a negative effect on an ongoing investigation. To carry out this strategy, Mueller would a request that the already empaneled grand jury—the one considering matters related to Russian interference in the election—issue criminal charges against Trump himself. If the grand jury were to find probable cause for the charges to proceed, whatever they may be, a magistrate judge would then decide whether the indictment could remain secret. If the judge were to determine that it can, the charges would then remain hidden from public view until the criminal defendant is taken into custody or released on bail.
If Trump were to fire Mueller, an already filed sealed indictment would outlast Mueller’s tenure. A sealed indictment can only be dismissed by a judge, meaning Trump cannot rid himself of a legal headache simply by terminating the special counsel. A sealed indictment would also ensure that the statute of limitations for crimes Trump might be charged with will not expire. This leaves open the possibility of Trump being tried in the future.
Some might object that using a sealed, rather than public indictment seems counterintuitive: After all, isn’t the point of indicting Trump to expose his potentially criminal acts? If Mueller sought a public indictment, it would also preserve the case against Trump. It too would have to be dismissed by a judge in the event of Mueller’s firing, and it retains the advantage of ensuring the statute of limitations on many crimes would not run out. Moreover, public indictments have the benefit of immediate transparency, of letting the American people know immediately what their chief executive is accused of doing, rather than making the people wait until the indictment is unsealed.
But as Mueller weighs his options, he might conclude that such a public indictment now would only further provoke Trump’s ire. The negative effects the president could create for the investigation and the public turmoil a public indictment could spawn might persuade Mueller to pursue a sealed indictment instead. Doing so would allow Mueller to avoid tumultuous consequences for now. And in fact, the objective of transparency that a public indictment seemingly serves could actually be undermined by such an action, if it provokes steps that curtail the investigation. For example, Trump might threaten to fire any public official who cooperates with the investigation or disparage private citizens who cooperate. With a sealed indictment, we can be confident that transparency will ultimately be served when it is unsealed and the charges and evidence come to light.
In making his case to a judge for the seal, Mueller could cite the potential negative consequences to his investigation that would come from a public indictment. As the Seventh Circuit Court of Appeals put it, the “power to seal an indictment is broad; sealing an indictment is generally permitted when it is in the public interest or serves a legitimate law-enforcement purpose.” This case, dealing with the president and his potential to thwart a federal investigation, qualifies, if Mueller can show that a public indictment would impede his investigation.
Neither a sealed nor a public indictment guarantees a conviction or even that the indictment will remain in place. If Mueller is fired and replaced by a new special counsel, the new prosecutor could argue that the original charges were unfounded. Still, the ultimate decision would again rest with an independent judge, not with an executive branch employee whose job security relies on the whims of the president. A new prosecutor would also have to actively request the charges be withdrawn. These checks could be disregarded, but they might also be enough to preserve the indictment if Mueller were to be fired.
Of course, only Mueller and his team know if they have a strong enough criminal case against the president to merit an indictment—sealed or otherwise. If they do, with Trump’s threats to fire Mueller looming, there is significant advantage to moving forward soon.